Legalprofession[1082]
6.1 The governing legislation
When the Second Charter of Justice established the Court of Judicature and introduced English law into the Straits Settlements, it provided that only persons who had been licensed by the Court could act as an agent.
The Charter listed five types of representatives - advocate, solicitor, attorney, proctor and agent - but the records show that only law agents were licensed between 1839 and 1852. This was the beginning of the legal profession in Singapore. Most law agents were merchants who took on the role of advocate on a part-time basis. The first law agent to be registered in Singapore was William Napier. In 1852 the Recorder Sir William Jeffcott laid down special qualifications and examinations for the admission of lawyers,[1083] but it was not till the passage of the Courts Ordinance in 1873 that the true foundations of the modern legal profession were laid. The first local-born lawyer - Song Ong Siang-was admitted in 1893.From its earliest days, the legal profession in Singapore and the rest of the Straits Settlements was a fused one, with no distinction made between solicitors and barristers. Indeed, they were, by 1878, styled as advocates and solicitors, and law clerks with five years of experience were allowed to qualify by passÂing an examination. Refinements were made to the qualification system in the Courts Ordinance of 1907,[1084] which added more sophisticated regulatory proÂvisions, including grounds upon which a lawyer could be struck off the rolls. In 1935 the Straits Settlements Legislative Council passed the Advocates and Solicitors Ordinance[1085] to regulate qualification to practice. In 1966, shortly after Singapore’s independence, Parliament passed the Advocates and Solicitors Ordinance.[1086] This was subsequently amended to become the current Legal ProÂfession Act in 1970[1087] which not only continued regulating the qualification of lawyers in Singapore, but also established the Singapore Advocates and Solicitors Society to replace the old Bar Committee of Singapore.
This society of lawyers was later renamed the Law Society of Singapore.6.2 Qualifyingtopractise
During the period of the Straits Settlements (1867-1942), lawyers in the Straits Settlements were allowed to practise in any of the three jurisdictions. This practice ceased with the disbanding of the Straits Settlements in 1946. HowÂever, in 1957, just before the Federation of Malaya became independent, the Federation Bar Council and the Singapore Bar Committee recommended to their respective Governments that rules of admission be relaxed such that lawyers from Malaya and Singapore could practise in each other's jurisdictions.[1088] This practice continued right up until the end of 1970 when the Malaysian Emergency (Essential Powers) Ordinance came into effect to restrict the right of non-residents from practising in Malaysia.
Because of these historical links, the Legal Profession Act continues to make provision for the qualification of Malaysian lawyers and Malaysian-educated lawyers. By 1956 the Law Department had been established in the University of Malaya in Singapore. It was accorded faculty status in 1959, and in 1961 the first batch of locally trained lawyers graduated from the university. LegisÂlation had to be amended to allow locally qualified persons to be called to the Bar. In the ensuing years, with more and more lawyers graduating mainly from the local university, qualification rules had to be emplaced to allow foreign- trained lawyers to practise in the Singapore courts. From 1965 to 1984 persons who obtained law degrees either from the Law Faculty of the National UniverÂsity of Singapore,[1089] or the United Kingdom, or were qualified to practise in Malaysia, could be admitted to the Singapore Bar. In 1984 the admission criteria were expanded to allow practitioners from Hong Kong to practise in Singapore without the need to attend the Postgraduate Practical Law Course (PLC) and undergo the mandatory six months of pupilage.
This was done to attract lawyers with the necessary skills to meet the growing demands of the burgeoning finanÂcial market.6.3 The â€?qualified person’: an ever-evolving personality
Under the Legal Profession Act, admission as an advocate and solicitor of the Supreme Court of Singapore is predicated on the applicant being a �qualified person' within the meaning of s 2 of the Act. Such qualified persons must be at least 21 years old; be of�good character'; have completed the prescribed period of pupilage; attended the PLC; and have passed such examinations as may be prescribed by the Board of Legal Education. Because of the numerous changes that have taken place in the admission of lawyers, the definition of �qualified person' has become particularly problematic. The table below lists the various categories of persons who are considered �qualified persons' under the Legal Profession Act.[1090]
Singapore graduates
Before 1 May 1993
Bachelor of Laws (LLB) graduate of the Faculty of Law, National University of Singapore, or its predecessor institutions.
United Kingdom
Before 1 May 1993
Citizen or permanent resident of Singapore with a Bachelor of Laws (LLB) degree from any institution of higher learning in the United Kingdom; and who has either:
(a) qualified as a barrister in the United Kingdom and has obtained the Diploma in Singapore Law; or
(b) passed Part A of the Singapore Bar examinations; and received 'relevant legal training'120 or has 'been engaged in relevant legal training'121 or been 'engaged in relevant legal practice or work' for a continuous period of at least six months.
Australia and New Zealand
On or after 1 January 1994
Citizen or permanent resident of Singapore who has been enrolled in a full-time degree course with any of the following approved universities: Australia: Monash: Melbourne; New South Wales; and Sydney;
NewZealand: Auckland, Victoria
AND who has been ranked 'as being amongst the highest 70%' in terms of academic performance among the total number of graduates in their cohort
AND
After 1 May 1993
Bachelor of Laws (LLB) graduate of Faculty of Law, National University of Singapore, with minimum of a Second Class Lower Honours Degree; or
Bachelor of Laws (LLB) graduate of School of Law School, Singapore Management University with a minimum of 3.00 grade point average.
After 1 May 1993
Citizen or permanent resident of Singapore with a Bachelor of Laws (LLB) degree from an approved university in the United Kingdom;122 and who has either:
(a) qualified as a barrister in the United Kingdom and has obtained the Diploma in Singapore Law; or
(b) passed Part A of the Singapore Bar examinations; and received 'legal training' or has 'been engaged in relevant legal training' or been 'engaged in relevant legal practice or work' for a continuous period of at least six months, provided that if the candidate graduates after 1 January 1997, he or she must obtain at least a Second Class Upper Division Honours degree. The requirement that the candidate obtain a Second Class Upper degree was changed to that of a Second Class Lower degree in 2009.123
On or after 1 January 2003
In addition to the Australian and New Zealand universities approved in 1994, the following universities were included from 2003: Australia: Australian National University; Flinders; Queensland; and Western Australia
On 1 August 2005, the following universities were added to the list of approved institutions: Australia: Tasmania and Murdoch.
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(a) has obtained the Diploma in Singapore Law or
(b) passed Part A of the Singapore Bar examinations; and received 'legal training' or has 'been engaged in relevant legal training' or been 'engaged in relevant legal practice or work' for a continuous period of at least six months.
United States of America
After 1 January 2004
Citizen or permanent resident of Singapore who has been enrolled in a full-time degree course with any of the following approved universities; AND
Under the Fifth Schedule of the Legal Profession (Qualified Persons) Rules, the degree of Juris Doctor (JD) from the following American are recognised:
Harvard University; Columbia University; New York University; and University of Michigan.
(a) has obtained the Diploma in Singapore Law; or
(b) passed Part A of the Singapore Bar examinations; and received 'legal training' or has 'been engaged in relevant legal training' or been 'engaged in relevant legal practice or work' for a continuous period of at least six months.
6.4 Acclimatising the foreign graduate
In addition to being a qualified person, an aspiring lawyer must also undergo the five-month PLC (now known as Part B of the Singapore Bar Course), and pass the PLC examinations (now known as the Part B Bar Examination).[1091] For graduates of foreign universities, there is the added requirement of passing the Diploma in Singapore Law or Part A of the Singapore Bar Examination. The Diploma in Singapore Law was introduced in 1993 as a one-year full-time program to familiarise foreign graduates with the Singapore legal system and key areas of professional legal practice in Singapore. In February 2009 the Singapore Government announced that the Diploma in Singapore Law course was to be replaced by a shorter, three-month course called the Part A Bar course. Like its predecessor, the course is designed to prepare graduates of approved foreign universities for practice in Singapore. The first course was held in August 2009, and like its predecessor, was run by the Faculty of Law of the National University of Singapore. Students need not necessarily attend the Part A Bar course as a prelude to their taking the Part A Bar Examinations.
6.5 Professional training
Right up until 2009, lawyers-to-be were expected to complete a six-month pupiÂlage with a local law firm.[1092] In 2009 the Government announced its intention to replace pupilage with â€?training contracts’. For local graduates, this change is cosmetic since they must still complete a six-month â€?training contract’ with a Singapore law practice. For foreign graduates, they must fulfil a 12-month trainÂing requirement, at least six months of which must be in the form of a training contract, and the remainder made up of prior legal experience. Overseas lawyers with at least two years of relevant â€?legal training'[1093] or â€?relevant legal practice or work'[1094] may be called to the Bar upon the completion of the Part A Bar Examinations.
6.6 SeniorCounsel
In 1989 the Legal Profession Act was amended to introduce a new category of lawyers, called Senior Counsel. These senior and eminent lawyers are analogous to the English Queen's Counsel. A Selection Committee comprising the Chief Justice, the Attorney-General and the Judges of Appeal may appoint a lawyer as Senior Counsel if it �is of the opinion that, by virtue of the person's ability, standing at the Bar or special knowledge or experience in law, he is deserving of such distinction.'[1095] Although Senior Counsel had been provided for in the legislation, no appointments were made until 4 January 1997. Between 1989 and that date, the only Senior Counsels were the persons holding the posts of Attorney-General and Solicitor-General before 21 April 1989.[1096] Only persons with 10 years or more of being an advocate and solicitor or a legal officer in government service are eligible for consideration. Senior Counsel have order of precedence in court according to that date of their call and rank, just after the Attorney-General and the Solicitor-General.[1097]
6.7 Organisation of the legal profession
Sole proprietorships and partnerships
Traditionally law firms have operated as partnerships or sole proprietorships. This was to ensure that lawyers would bear the full brunt of personal liability in the event of negligence. Up until 1 March 1997, there was nothing to stop someÂone who had just been called to the Bar from setting up his or her own practice the very next day. This situation was deemed undesirable and an amendment was made to the Legal Profession Act to require anyone starting his or her own law firm to have had at least three continuous years of practice (or three years out of a continuous period of five years)[1098] in Singapore and to complete a legal practice management course run by the Law Society.[1099] The Council of the Law Societyis empowered to exempt a solicitor from such a requirement or to shorten the period of practical experience provided â€?it is satisfied that the solicitor has gained substantial experience in law in Singapore or elsewhere.'133
Locum solicitors
In 2004 Parliament amended the Legal Profession Act to provide for part-time or freelance practitioners, known as â€?locum solicitors'.134 A locum solicitor may apply for a locum practising certificate if he or she has practised as a locum solicitor â€?within a period of 3 years immediately preceding the application'. Locum solicitors are not permitted to practise both as locums and as proprietors or partners of a law firm. They must cease practising as a full-time advocate and solicitor and apply for a Locum Solicitor Practising Certificate. Only Singapore citizens or permanent residents may apply for such a certificate.135 If, prior to application for a certificate, the solicitor has not practised as a proprietor or partner of a law firm or director of an LLC or partner in an LLP (see below), for three out of the preceding five years, he or she must complete 10 hours of training approved by the Council of the Law Society, of which six hours must be in the areas of practice published on the Law Society's website for that purpose.136 Locum solicitors may not hold clients' moneys, open or operate a client account, sign or give any instruction in respect of client money or hold money as solicitorÂtrustee. In addition, he or she must be supervised by the proprietor or partner of the law firm or a director of the LLC or a partner of an LLP who will act as the designated supervising practitioner. A locum solicitor may be engaged and may concurrently practise as a locum solicitor in more than one limited liability corporation.137
Limited law corporations (LLC)
Sole proprietorships and partnerships were the sole structures under which lawyers could practise in Singapore right up until 2000. That year, an amendÂment was made to the LegalProfessionAct to allow lawyers to practise as limited companies in the form of limited law corporations, or LLCs.138 The LLC is an exempt private limited company incorporated under the Companies Act139 and the liabilities of its shareholders are limited by their share contributions, just like any other private limited company. As such, the directors and shareholders
133 LegalProfessionAct (Cap 161), s 75C(2).
134 Section 2 of the Legal Profession Act defines a �locum solicitor' as �an advocate and solicitor engaged (whether concurrently or otherwise) on a temporary or freelance basis by one or more law firms, law corporations, limited liability law partnerships or solicitors practising on their own account'.
135 LegalProfessionAct (Cap 161), s 26(1A).
136 See Legal Profession (Practising Certificate) Rules, r 4B(1). At the time of writing, the Law Society's website lists nine categories of practice areas: (1) commercial, corporate, employment, corporate finance, commercial finance; (2) conveyancing, banking; (3) criminal law; (4) dispute resolution processes and proÂcedure (including litigation, arbitration, mediation, adjudication); (5) information technology, intellectual property; (6) infrastructure, projects, construction; (7) insurance, probate and administration, wills, trusts, tax, wealth management; (8) matrimonial, family law; (9) shipping, admiralty, international trade. See The Law Societyof Singapore.
137 See LegalProfessionAct (Cap 161), s 81U(4).
138 See Legal Profession Act (Cap 161), Part VIA, inserted through the Legal Profession (Amendment) Act 2000, Act No. 4 of 2000.
139 Singapore Statutes (Cap 50).
of the LLC are not vicariously responsible for the negligence or wrongdoing of their employees. However, lawyers practising in LLCs continue to be personally liable for their own professional negligence. Similarly, directors of the LLC are jointly liable �to disciplinary proceedings under this Act if the business of the law corporation is conducted in a manner unbefitting an honourable profession and where such conduct cannot be attributed to the act or omission of a particular solicitor or solicitors whose identity is known.'[1100] The name of the LLC must be approved by the Law Society Council and the regulation of LLCs is governed by the LegalProfession (Law Corporation) Rules.[1101]
Limited liability partnerships (LLPs)
In 2005, Parliament enacted the Limited LiabilityPartnershipsAct[1102] to provide for the formation of limited liability partnerships in Singapore. This new type of business vehicle shares elements of both a traditional partnership as well as that of a corporation. Once registered, the LLP is a separate legal entity from its partners - with the usual capability of suing and being sued, holding and disposing of property, having a common seal and �doing and suffering such other acts and things as bodies corporate may lawfully do and suffer.'[1103] Every partner is an agent of the LLP with the power to bind it in any transaction or agreement.[1104] The LLP's liability is the obligation of the LLP and partners are not personally liable �by way of indemnification, contribution, assessment or otherwise' by sole reason of being a partner in the LLP.[1105] However, a partner in an LLC is still personally liable �in tort for his own wrongful act or omission' though not for the wrongful act or omission of any other partner of that LLC.[1106] Like in the LLC, the partners are jointly liable to disciplinary proceedings �if the business of the limited liability law partnership is conducted in a manner unbefitting an honourable profession and where such conduct cannot be attributed to the act or omission of a particular solicitor or solicitors whose identity is known.'[1107] A partner or employee in an LLP is not permitted to hold shares in any LLC or be a director or consultant in an LLC.[1108] Neither is he or she permitted to be a partner or consultant or employee in another LLP or practice on his or her own account.
Foreign lawyers and law firms
Foreign lawyers are regulated by the Attorney-General rather than by the Law Society.[1109] Part IXA of the Legal Profession Act designates the Attorney-General as the approving authority for the formation of Joint Law Ventures (JLV) and Formal Law Alliances between Singapore law firms and foreign law firms. A JLV may be constituted either by a partnership between a foreign law firm and a Singapore law firm, or by the incorporation of a company in Singapore with shares being held by a foreign law firm and a Singapore law firm. A JLV may practise Singapore law in â€?the permitted areas of legal practice' which, insofar as the latest 2008 Rules are concerned, cover a wide area of corporate practice.[1110] At the time of writing, there are only five JLVs registered with the AttorneyÂGeneral's Chambers.[1111]
Formal Law Alliances are formed by foreign law firms and Singapore law firms by agreement. A Formal Law Alliance licence allows the Alliance to practise Singapore law, but only in �such areas of legal practice and in accordance with such terms and conditions as may be prescribed'.[1112] The parties to such an Alliance must have relevant legal expertise and experience in the following areas of legal practice: banking law; finance law; corporate law; technology law; telecommunications law; arbitration; intellectual property law; maritime law; or �any other areas of legal practice that facilitate or assist in the growth and development of the Singapore economy.'[1113] The foreign law firm must have five or more foreign lawyers resident in Singapore, who must each have at least five years of relevant legal expertise and experience in the areas prescribed.[1114] There is currently only one Formal Law Alliance registered with the Attorney-General's Chambers: the WR Alliance.
Qualifying foreign law practices
In 2008 Parliament amended the Legal Profession Act to provide for the issue of Qualifying Foreign Law Practice (QFLP) licences to foreign law firms. Under the new s 130D(4)(a), a foreignlaw firmwith a QFLP is entitled to �practise Singapore law' in certain permitted areas of practice. This is similar to the rules for JLVs and thus covers a wide area of corporate practice.[1115] The grant of QFLP licences diminishes the attractiveness of JLVs, especially for foreign law firms hoping to get a slice of the Singapore market for local legal work. The first six foreign firms granted five-year QFLP licences were: Allen & Overy, Clifford Chance, Herbert Smith, Latham & Watkins, Norton Rose, and White & Case.
Islamic law practice
The practice of Islamic personal law has long been recognised in Singapore.[1116] In 1957, following the Select Committee Report on the Muslims Bill,[1117] Singapore passed the Muslims’ Ordinance which created the Syariah Court to adjudicate on these matters. This Act was replaced in 1966 by the Administration of Muslim LawAct which sought to enhance the administration of justice in relation to the personal law of Muslims. The Syariah Court has jurisdiction over cases relating to marriage, divorce, betrothal, nullity of marriage, judicial separation, division of matrimonial property, payment of dowry, maintenance and mutaah. Decisions of the Syariah Court maybe appealed to an Appeal Board comprising three Muslims selected by the Registrar of the Supreme Court from among the seven nominated by the President of the Republic of Singapore annually.[1118] Parties to a dispute may appear �in person or by an advocate and solicitor or by an agent, generally or specially authorised to do so by the Court.'[1119] No special requirements or training is required for lawyers wishing to practise Islamic law in the Syariah Court although many lawyers wishing to specialise in Islamic law practice are known to have taken additional qualifications in Islamic law in Malaysia.
6.8 Regulation of the legal profession
Under the Legal Profession Act, the legal profession is self-regulating. As all advoÂcates and solicitors are officers of the Supreme Court,[1120] ultimate sanction of errant lawyers lies in the hands of a panel of three Judges of the Supreme Court. Lawyers owe a duty to their clients to exercise their skills in a competent manner, and if they breach this duty they may face an action for negligence or breach of contract or even criminal proceedings. An advocate and solicitor is liable to be struck off the roll, or suspended from practice for up to five years, or censured if due cause is shown.[1121] There are numerous grounds for which a lawyer may be disciplined under s 83(2) of the Legal Profession Act, including convictions implying defect of character and misconduct.
Disciplinary action is initiated once a complaint regarding a lawyer is received by the Law Society. The Council of the Society will refer the complaint to the Chairman of the Inquiry Panel which is drawn from a list of lawyers of at least 12 years' standing and laypersons.[1122] If the complaint pertains to a lawyer's professional conduct, the Council has no discretion and must refer the complaint to the Chairman of Inquiry Panel who must constitute an Inquiry Committee (IC) consisting of a chairman who mustbe an advocate and solicitor, another advocate and solicitor, a layperson and a legal officer to inquire into the complaint.[1123] The IC must inquire into the complaint within two weeks[1124] and report its findings to the Council within two months. Within a month of the receipt of the IC's report, the Council must determine if a formal investigation is necessary. Some cases are disposed of at this point. If the case merits further investigation, the Council will request the Chief Justice to appoint a Disciplinary Committee (DC) to investigate the matter.[1125]
The DC consists of a person from a panel of not more than five persons appointed by the Chief Justice who are retired judges or advocates and solicitors of not less than 12 years' experience, a practising advocate and solicitor, a legal officer of at least 10 years' experience and a layperson from the Panel.[1126] The DC is expected to carry out its work expeditiously, and if it fails to make any finding or determination within six months from the date of its appointment, the Society may apply to the Chief Justice to give directions to the DC.
If the DC finds that there is no cause of sufficient gravity for disciplinary action under s 83,[1127] or that a reprimand is sufficient, the dissatisfied complainant, advocate and solicitor or the Council may appeal against the decision within 14 days.[1128] Thejudge may then make an order confirming the decision, directing the Council to apply for an order under s 98 or directing the advocate and solicitor to show cause.[1129] If the DC finds that there is a cause of sufficient gravity for disciplinary action under s 83, the Society must apply for a show cause order under s 98,[1130] requesting that the lawyer be struck off the rolls, suspended from practice, censured or that he or she be required to answer the allegations.[1131] The decision of the court is final and is not subject to appeal.[1132] Once the order is made absolute, the lawyer will eitherbe disbarred, suspended or censured.
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