SINGAPORE - The High Court has called for a fresh disciplinary tribunal (DT) to be appointed to probe a complaint of overcharging against a senior counsel.
The court set aside in full the existing DT's report that cleared Senior Counsel Alvin Yeo last year, finding the charges should have addressed the mental capacity of the octogenarian widow related to the case and not just dwell on the overcharging issue.
"There could be a wider issue of public perception if the same DT in such circumstances reaches the same conclusion," said Justice Valerie Thean in judgment grounds issued on Wednesday (Jan 8).
"Any fresh hearing is consistent with the legislative framework and the public interest that complaints against lawyers are fully heard and investigated," she added, directing the Law Society to appoint fresh counsel to represent the case "who will be required to adduce material evidence pertaining to the mental capacity issues and run the Law Society's case on that new basis".
But Justice Thean said that a "more fundamental question" was whether it would be "unjust" to subject SC Yeo to another investigation on the same matter.
The judge accepted that SC Yeo was fully prepared to defend himself on the mental capacity issues - on which the case for a new tribunal hearing turned - and noted that he had also proceeded on the correct basis of applying the 2010 Professional Conduct Rules.
"The situation is an unfortunate one," said the judge, explaining that the court is only able to review "the errors on the part of the Law Society and the DT" after disciplinary proceedings have concluded based on 2008 changes to the Legal Profession Act.
The Act was amended in 2008 to introduce S91A, which explicitly reserves some avenues of judicial review over acts done or decisions made by a disciplinary tribunal. Prior to the 2008 changes, judicial review challenges were made to the courts even before the DT had made a determination, causing the disciplinary process to be delayed significantly, according to a 2016 High Court judgment referred to by Justice Thean.
The Law Society is to apply to the Chief Justice for the appointment of another disciplinary tribunal to hear and investigate the complaint, ruled the judge.
The judgment comes in the wake of separate applications by the Attorney-General and the Law Society last year for the High Court to review the DT's decision to clear SC Yeo of allegedly overcharging a wealthy widow.
The case involved a bill of $7.56 million for work done over 4½ years, from November 2010, on behalf of the elderly woman to fight an application from her sisters to become her deputies.
The sisters had claimed that she lacked the mental capacity to decide what to do with her considerable assets and was being unduly influenced by her daughter and son-in-law.
The case eventually reached the Court of Appeal, which in addition to deciding on the case also raised the issue of fees charged to the elderly woman.
As stated in the complaint by the Registrar of the Supreme Court to the Law Society that followed, the judges had then made clear they had not arrived at any conclusion as to whether or not there was professional misconduct in referring the matter for investigation.
After negotiations, WongPartnership gave a 32.5 per cent discount, bringing the fees down to about $5.1 million, of which SC Yeo's client had to fork out about $542,000. The remainder was to be paid by the woman's daughter and son-in-law.
The DT which probed and cleared SC Yeo last year found the Law Society failed to show that there had been overcharging.
In the High Court application to set aside the DT findings, the Attorney-General, represented by Senior State Counsel Kristy Tan and State Counsel Jamie Pang, argued that the DT had failed in its legal duty to hear the mental capacity issue, which meant it had not discharged its duty to hear and probe the complaint.
They defined the mental capacity issue as whether SC Yeo should have had concerns about the widow's lack of mental capacity when lawyers from his firm first met her and took instructions, among other things.
The Law Society, represented by Senior Counsel Gregory Vijayendran and lawyers Jason Lim and Teng Boon Hui, associated itself in the main with the A-G's submissions but relied on two other grounds of judicial review as well.
Senior Counsel Chelva Rajah in defending SC Yeo countered, among other things, that in any event the charges eventually proceeded with did not include the mental capacity issue and the DT was only required to hear the charges and not the complaint.
Justice Thean found the complaint included mental capacity issues but since the relevant charges did not engage these issues, it followed that the DT would not have probed them.
But the court made clear that the tribunal has a duty to hear and investigate the complaint as well as the charges.
"The two duties are not mutually exclusive and in fact are complementary to one another," she said, adding that the charges are expected to reflect the essence of the complaint and fall within the scope of it.
The judge said the Law Society had a duty to frame the charges appropriately in a way that is consistent with the DT's duty to hear and investigate the complaint, and both duties may be the subject of review before the court.
Justice Thean found the charges brought by the Law Society did not reflect the essence of the complaint and the charges were also based on the wrong Professional Conduct Rules and were therefore also outside the scope of the complaint.
"A failure to fulfil a legal duty amounts to illegality. Since the charges were erroneous, it must follow that the determination was also erroneous and has to be set aside."
The judge also found the DT had made an "erroneous" finding that mental capacity issues were not within the scope of the complaint.
"I have found that the issue of overcharging is not one that is distinct from the mental capacity issues. It therefore follows, upon my finding that the DT had not fulfilled its duty to hear and investigate the complaint, that the determination must be set aside in full."
The court rejected SC Yeo's position that the existing DT decision should stand as an investigation into the mental capacity issues will not affect the findings on overcharging.
The widow, who was not named, is in her 80s and received a legal education in England in her younger days. She inherited about $200 million from her late father's estate and is expected to get a further $100 million.
Additional reporting by Dominic Low