Oon & Bazul’s Dispute Resolution Partner Chenthil Kumarasingam was featured in an article titled “Lawyers who put own interests above clients’ could be struck off” in The Straits Times. The article was first published in The Straits Times on 10 April 2019.
Court of Three Judges sets out new three-tier structure of sanctions to deal with misconduct
Errant lawyers who put their personal interests above those of their clients will be struck off from practice unless there are exceptional reasons.
The Court of Three Judges made this clear yesterday in setting out a new three-tier structure of sanctions to deal with lawyers’ misconduct that involves conflict of interest in relation to their clients.
“Misconduct arising from a conflict of interest is reprehensible because it entails a grievous violation of a lawyer’s duty of unflinching and undivided loyalty to a client,” said Chief Justice Sundaresh Menon in judgment grounds yesterday.
“In all disciplinary proceedings involving a conflict of interest, the sanction to be imposed should reflect both the culpability of the errant solicitor and the harm caused by his misconduct,” he added on behalf of the court, which included Judge of Appeal Tay Yong Kwang and Justice Belinda Ang.
CJ Menon’s remarks dealt with lawyer Peter Ezekiel, who was suspended in January from practising for three years by the Court of Three Judges for gross professional misconduct. Mr Ezekiel, 49, had acted for two clients with conflicting interests in a criminal matter and ended up favouring one over the other.
A lawyer of 21 years’ standing, he had acted for both an employer and an employee, who were charged with falsely declaring to the Ministry of Manpower that the latter’s salary was $1,800, when it was $1,200.
A disciplinary tribunal appointed by the Chief Justice in 2017 which investigated the case concluded that Mr Ezekiel’s failure to act in the best interest of the employee amounted to improper conduct and imposed a $3,000 fine.
But the Law Society disagreed and applied to the Court of Three Judges – the highest disciplinary body to deal with errant lawyers – against the tribunal’s decision.
The society’s lawyer Mahendra Prasad Rai argued that Mr Ezekiel’s actions were serious and amounted to grossly improper conduct, which justified a suspension.
Mr Chenthil Kumarasingam, Mr Ezekiel’s lawyer, countered among other things that even if due cause was shown under s83(1) of the Legal Profession Act, which involved grossly improper conduct, the $3,000 fine would suffice.
The court held an errant lawyer’s culpability and harm levels can be gauged by examining various factors, including his motivation for the misconduct, the impact on public interest and the profession’s reputation.
The court set out three categories: 1, 2A and 2B in which the first category involves serious harm and heavy blame that would lead to being struck off, unless there are exceptional circumstances.
An example would be where the lawyer personally transacts with the client to his own advantage or gets a substantial gift from the client.
Category 2A cases, which involve a lawyer with multiple clients in which he prefers one client over another, would draw a minimum suspension of two years.
Category 2B cases involve misconduct where there are multiple clients but the lawyer did not prefer the interest of one client over another. A suspension may still be appropriate as there is a larger public interest that is damaged by such misconduct, said the court.
Mr Ezekiel’s case fell within 2A as he preferred the interest of the employer over the employee, which showed a “relatively high level of harm” caused to the employee.
“The present case concerned criminal proceedings, where the stakes are higher,” said the court, which found Mr Ezekiel’s misconduct caused irreparable harm to the employee. The Court of Three Judges held the three-year suspension was appropriate for his grossly improper conduct that was unbefitting of a lawyer.
Author: K.C. Vijayan