Intention Necessary To Prove Charge Of Lawyer Being Party To Or Assisting Client In Suppressing Evidence, Court Of Three Judges Rules

• Published date: 09 January 2024
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Law Firm: WongPartnership LLP
• Author: Chee Meng Tan

Rule 10(3)(a) of the Legal Profession (Professional Conduct) Rules 2015 (PCR) requires a legal practitioner, to the extent that he is able, to prevent his client from, to not be a party to, and to not assist the client in, suppressing evidence (Rule 10(3)(a)). In Law Society of Singapore v de Souza Christopher James [2023] SGHC 318, the Court of Three Supreme Court Judges (C3J), overturning the decision of the Disciplinary Tribunal (DT) and dismissing the application of the Law Society of Singapore (Law Society) for a legal practitioner to be sanctioned under section 83(1) of the Legal Profession Act 1996 (LPA) for breaching Rule 10(3)(a), held that: (a) intention is a necessary ingredient of a charge brought under Rule 10(3)(a); and (b) there was no evidence that the legal practitioner here intended to assist his client to suppress evidence and that the charge was not made out.

Our Deputy Chairman Tan Chee Meng, SC and Associate Calvin Ong successfully defended the legal practitioner before the C3J.

Our Comments

The decision of the C3J is a welcomed one. It not only provides timely explanation on the interpretation of Rule 10(3)(a), but also offers guidance on the interaction between the various ethical obligations owed by a legal practitioner to both his client and to the court. In this regard, the Law Society had argued before the DT that the legal practitioner had breached his paramount duty to the court by failing to disclose his client's breach at a

pre-trial conference (PTC). While this allegation was not the subject of the charge before the C3J, the court agreed with the legal practitioner's submission that he had no duty to disclose his client's breach at the PTC itself. The C3J emphasised that the legal practitioner owed a duty of confidentiality to his client, and was not at liberty to unilaterally disclose the fact of the breach in the absence of permission to do so.

The C3J's findings illustrate the importance of the duty of confidentiality owed by a legal practitioner to his client. This is in line with recent decisions, where this duty had been pitted against other ethical rules. For example, in Tan Ng Kuang v Jai Swarup Pathak [2022] 3 SLR 788, the Court of Appeal held that the duty of confidentiality owed by a legal practitioner to his client was a fundamental and critical obligation. The legal practitioner therefore could not tell the opposing party of his client's intention to breach an agreement, notwithstanding any duties the legal practitioner may have towards it. In the present case, the finding by the C3J that the legal practitioner could not have unilaterally disclosed matters without his client's instructions, even when the recipient was to have been the court itself, further emphasises the integral role that the duty of confidentiality plays vis-à-vis the genus of ethical obligations. The paramount duty owed by legal practitioners to the court is thus not the be-all-and-end-all, and its application must be tempered with other - equally - important obligations owed by a legal practitioner.

This update takes a look at the C3J's decision.

Background

Mr Christopher James de Souza (Mr de Souza) was, at the time the events took place, a legal practitioner practising with, and a partner of, M/s Lee & Lee (L&L).

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