singham dennis mahendran [2001] 1

7/23/2019 Singham Dennis Mahendran [2001] 1

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CASE NOTE

LAW SOCIETY OF SINGAPORE v SINGHAM DENNIS

MAHENDRAN [2001] 1 SLR 566

Introduction:

Section 83 of the Legal Profession Act (Cap. 161, 1997 Revised Edition)

(the Act) provides that:

(1) All advocates and solicitors shall be subject to the control ofthe Supreme Court and shall be liable on due cause shown to be

struck off the roll or suspended from practice for any period not

exceeding 5 years or censured.

(2) Such due cause may be shown by proof that an advocate andsolicitor

(b) has been guilty of fraudulent or grossly improper conduct in

the discharge of his professional duty or guilty of such a breach of

any usage or rule of conduct made by the Council under theprovisions of this Act as amounts to improper conduct or practice

as an advocate and solicitor;

(h) has been guilty of such misconduct unbefitting an advocate and

solicitor as an officer of the Supreme Court or as a member of anhonourable profession; ...

To what extent a sexual liaison between a solicitor and his client is

considered grossly improper conduct in the discharge of his professional

duties within the meaning of section 83(2)(b) of the Act has never been

before the courts until recently in Law Society of Singapore v SinghamDennis Mahendran (the Respondent) [2001] 1 SLR 566. This is the

first case in Singapore of an advocate and solicitor facing disciplinaryaction for sexual misconduct.

The Case:

A Disciplinary Committee had been appointed to hear and investigate

inter alia1, a charge formulated by the Law Society of Singapore against

the Respondent that he was guilty of grossly improper conduct in the

discharge of his professional duties within the meaning of section 83(2)(b)

of the Act in that he carried on a sexual relationship with a client of hisfirm of which he was a partner during the period when he was the solicitor

having conduct of divorce proceedings instituted by the client. The

216 Singapore Academy of Law Journal (2001)

...

...


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Disciplinary Committee eventually found the Respondent guilty of this

charge.

An Originating Summons was then filed by the Law Society for the

Respondent to show cause why he should not be dealt with under theprovisions of section 83 of the Act.

At the Show Cause hearing before the Court of three judges, the

Respondent was ordered to be suspended from practice as an advocate

and solicitor of the Supreme Court of Singapore for a period of three

years and he was also ordered to pay the Law Societys costs in the present

proceedings and of the proceedings before the Disciplinary Committee.

The brief facts leading to the charge against the Respondent as found bythe Disciplinary Committee were that the Respondent was consulted by

the client on 10 April 1995 whilst he was a senior partner in a firm of

advocates and solicitors. He was asked to represent her in divorce

proceedings which she wanted to bring against her then husband. BetweenApril 1995 when the clients divorce petition was filed and October 1995

when the decree nisi was made absolute, the Respondent initiated and

carried on a sexual relationship with her whilst there was a solicitor-client relationship in existence between them. After the client had started

divorce proceedings, her then husband made several attempts to reconcile.

By then, the client was convinced by the Respondent that there was noway her then husband could treat her as well as the Respondent had

done. By September 1995, the Respondent was introducing the client to

some people as his wife. The relationship broke down after two years

and the client eventually consulted lawyers on the Respondents breach

of promise to marry her. The Respondent then offered $200,000 as a

parting gift which the client accepted. This was encapsulated in a Deedof Settlement which stated that the parties had mutually agreed to end

their two-year relationship. These facts were unchallenged by the

Respondent at the Show Cause hearing and were relied upon by the

Court.

The Disciplinary Committee found that the Respondents conduct inengaging in a sexual relationship with the client while he was her solicitor

amounted to grossly improper conduct within the meaning of section

83(2)(b) of the Act. Though this finding was not challenged by the

The alternative charge formulated by the Law Society was that the Respondent was

guilty of such misconduct unbefitting an advocate and solicitor as an officer of the

Supreme Court or as a member of an honourable profession within the meaning of

section 83(2)(h) of the Act in that he carried on a sexual relationship with a client of

his firm of which he was a partner during the period when he was the solicitor having

conduct of divorce proceedings instituted by the client. As the first charge was found

to have been made out, there was no need for the Disciplinary Committee to consider

the alternative charge and the alternative charge was not an issue before the Court of

three judges.

1

13 S.Ac.L.J. Notes and Comments 217


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Respondent, the Court proceeded to determine whether the Respondents

conduct did indeed amount to grossly improper conduct within themeaning of section 83(2)(b) of the Act and if so, the appropriate sanction

to be imposed in such cases.

The only reported Commonwealth authority the Respondent had relied

on was the decision of the High Court of Australia in Bar Association_ofQueensland v Lamb (Stevens v Lamb) (1972) ALR 285. This was an

appeal from a decision of the Full Court of the Supreme Court of

Queensland relating to the admission of Lamb to the Bar in the face of

several allegations of misconduct. One of the allegations which wasaccepted as proven was that whilst the respondent was acting for a female

client in contested matrimonial proceedings, he had a sexual relationship

with the client after the decree absolute, but before questions of custody

and maintenance had been determined. Menzies J endorsed the approach

of the Acting Chief Justice of the Supreme Court of Queensland. The

misconduct of Lamb was identified as possibly affecting the pending

proceedings of custody and maintenance which were in the event

determined by consent. He endorsed the Acting Chief Justices comment

that while Lambs conduct was unprofessional, (Windeyer J describedsuch conduct as reprehensible), it should not disqualify Lamb from

admission to the Bar.

In the Acting Chief Justices judgment, his view was that Lambs adultery

was unprofessional as it potentially prejudiced his client in the unresolved

issues relating to property and custody. He, however, placed emphasis

on the client being a mature woman of 36 years, a successful

businesswoman; that (Lamb) did not seduce her, that the adulterous

association in no way caused the breakdown of the marriage; that the

breakdown was caused by the husbands cruelty.

The Court said that in the context of divorce and matrimonial proceedings,female clients who approach solicitors with a view to ending an unhappy

marriage are almost invariably in a very distressed state mentally and

emotionally. They are in a desperate situation and in an extremely

vulnerable state. The Respondent had taken advantage of her

vulnerability. The Court went so far as to hold that the fact that the

relationship was consensual and genuine and might have led to marriage

did not provide the Respondent with an excuse to engage in such conductand relationship with the client. Even if there was no possibility of any

reconciliation between the client and the solicitor, that was beside thepoint.

The test adopted by the Court as to what amounts to grossly improper

conduct in the discharge of a solicitors professional duty under section

83(2)(b) of the Act was uncontroversial: whether the conduct is

dishonourable to him as a man and dishonourable in his profession. See

Law Society of Singapore v Ng Chee Sing [2000] 2 SLR 165 at 174; Law



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Society of Singapore v Heng Guan Hong Geoffrey [2000] 1 SLR 361 at

367; Law Society of Singapore v Marshall David Saul [19721974] SLR132; Re Han Ngiap Juan [1993] 2 SLR 81. Applying this test, the Court

found the Respondent guilty of grossly improper conduct.

While the authorities are at one in condemning such behavior on the

part of solicitors, the punishment accorded to such solicitors has beendisparate. In Re Bowen 542 N.Y. S. 2d 45, the attorney made improper

advances to eight women who had either retained or consulted him

regarding their matrimonial or child custody problems. The court found

that the charges sustained against the respondent reflected adversely uponhis fitness to practice law as well as upon the legal profession as a whole,and that they warranted condemnation by the court. The court then

proceeded to suspend the respondents license to practice law for two

years to deter similar misconduct and preserve the reputation of theBar.

In People v Zeilinger 814 P.2d 808, the respondent was retained by a

woman to act for her in a divorce matter involving a dispute as to the

custody of minor children and property settlement matters. The

respondent was her attorney of record through the final decree ofdissolution of the marriage. During the time when the respondent was

the attorney of record, he engaged in a sexual relationship with his client.

The court ordered that the respondent receive a public censure for his

conduct.

In an unreported proceeding before the New Zealand PractitionersDisciplinary Tribunal involving a solicitor who had acted for a client in

matrimonial matters and subsequently entered into a personal relationship

with her, the solicitor was censured and fined and ordered to paycompensation to the complainant and to bear the costs of the proceedings.

In Bar Association of Queensland v Lamb (Stevens v Lamb) (supra), the

Full Court of the Supreme Court of Queensland, although admitting the

respondent as a barrister, criticized his conduct as unprofessional.

Windeyer J in the High Court, considered the respondents conduct as

reprehensible but not, as described by the Supreme Court ofQueensland, such as necessarily to disqualify from membership of the

legal profession.The Court in deciding on the appropriate punishment to mete out to the

Respondent, found that the authorities mentioned above were only of

limited assistance and held inter alia, that the standards to be applied in

such cases would be influenced by factors such as societal values and

culture. As such, perhaps reflecting the more traditional and conservative

values imbued in our society, the Court held that although no dishonesty

was involved on the Respondents part and his misconduct did not warrant

a striking-off, such misconduct was very serious and warranted a moreserious sanction than a mere censure. The Court placed much weight on



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the fact that the duel objectives of disciplinary sentencing had to be

achieved: that of protecting the public and protecting the interests andreputation of the legal profession. To that end, the sentence had to be of

sufficient deterrence to prevent the Respondent or any other solicitorfrom engaging in such conduct. As such, the Court ordered that the

Respondent be suspended from practice as an advocate and solicitor for

three years and that he bear the costs of the disciplinary proceedings

taken against him by the Law Society.

This case is authority for the proposition that a lawyer who has a sexual

relationship with a client whilst having conduct of the clients divorceproceedings can expect to be found guilty of grossly improper conduct

within the meaning of section 83(2)(b) of the Act and face a suspension.

The case also acts on general principles (essentially of conflict of interest

and duty), which principles would also apply to cases which fall closer to

the other end of the spectrum: where the solicitor has a relationship witha client where the brief is not of a divorce matter.

In coming to its decision that the Respondent was guilty of grossly

improper conduct, the Court held that [solicitors, as members of an

honourable profession, have the duty to exhibit the highest standards of

professionalism in their relationships with clients. Personal service in a

professional relationship must be distinguished from getting involved in

the personal lives of the clients. If solicitors become too involved in their

clients personal lives during the existence of the solicitor-client

relationship, they may find themselves placed in a position of conflict ofinterest and the clients interests may be seriously prejudiced. Further, it

is unbecoming for solicitors to abuse the relationship of trust and takeadvantage of vulnerable clients for their own purposes.

However, to what extent would all types of a personal and sexual

relationship between a solicitor and a client be wrong? Is it a matter of

course that a solicitor who has a sexual relationship with a client will

face a Disciplinary Committee hearing for grossly improper conduct?

Some guidance is given by the Court when it said that it is unbecoming

for solicitors to abuse the relationship of trust and take advantage ofvulnerable clients for their own purposes. The test as adopted by the

Court of Appeal appears to centre largely on the breach of the fiduciary

duties owed by a solicitor to a client and the vulnerability of the client.

It would appear that it would be grossly improper conduct for a solicitor

acting for a distressed and confused client in a matrimonial matter, to

take advantage of the clients state of mind and seduce him or her.

In coming to this conclusion that all personal and sexual relationships

are clearly wrong, the Court had relied on the cases cited (supra) which

all dealt (with one exception, in People v Gibbons in which the solicitor

was acting for the client in a criminal matter) with matrimonial and

custody related matters. What then, of cases that fall outside of these



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categories? It is submitted that not all instances of a sexual relationship

between a solicitor and a client would be clearly wrong.

For a finding that a solicitor who had entered into a sexual relationship

with a client has been guilty of grossly improper conduct, it is submitted

that the following factors are relevant: the nature of the subject matter

of retention, the age of the parties to the relationship and the

sophistication of the client. These factors would have a bearing in

determining the vulnerability of the client. For example, if the client is ofmature age, a successful businesswoman and the subject matter of the

retention is say, a conveyancing matter, it is submitted that it would be aless convincing argument to say that the client was in a vulnerable position

and that the solicitor had abused his relationship of trust with the client.

The Standing Committee on Professional Responsibility and Conduct ofThe State Bar of California has had occasion to issue an opinion2 on the

ethical issues when a lawyer engages in a sexual relationship with a client.

The Committee recognised that each sexual relationship may be

characterised by a distinct set of circumstances (such as the maturity of

the parties, the vulnerability of the client and the nature of the subject

matter of retention) and that it did not believe that a lawyer-client sexualrelationship would per se impair the lawyers ability to competently

perform the legal services required and neither did it believe that there

should be aper seban on any sexual relationship with a client. However,

the Committee went on to caution that because of the very nature of the

trust and confidence which is inherent in a fiduciary relationship such asthat of lawyer and client, a clients consent to a sexual relationship may

be unduly influenced by the professional relationship. The fiduciary

relationship and the breach of that relationship by the Respondent appears

to have been given great weight by the Court when considering the

sentence to be imposed on the Respondent. The Committee recognised

that there were many perils in such a relationship. To this end, a solicitorshould always be cautious before entering into such a relationship.

The English position is that a solicitor who becomes involved in a sexual

relationship with a client should consider whether this may place his or

her interests in conflict with those of the client or otherwise impair the

solicitors ability to act in the best interests of the client. This stems from

the principle that a solicitor must not act where his or her own interestsconflict with the interests of a client. A solicitor who acts in breach of

this principle may (and not must) be subject to disciplinary action.3

The Standing Committee on Professional Responsibility and Conduct of The State

Bar of California (Formal Opinion No. 198792)

The English Guide to the Professional Conduct of Solicitors

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The perils of such a relationship between solicitor and client have been

variously described as the potential for bias that could arise from thesexual relationship4 and the potential for harm that may be suffered by

the client in the management of the case5. This includes problems such

as a conflict of interest or an impairment of the solicitors competence to

discharge his or her professional obligations to the client.

The issue appears to be a question of degree, to be looked at in its totality,

including the age of the parties, the vulnerability of the client, together

with the sophistication of the client and the nature of the subject matter

of the retention. To this end, it would appear that to say that all personaland sexual relationships between a solicitor and a client would be clearly

wrong would be overly broad. Each case should to be looked at

individually with the guiding principles being the potential for harm to

the client that could arise from the sexual relationship. The case though,

is helpful clarification that the disciplinary wrong lies not so much in thesexual relationshipper se and the principles will extend to relationships

of a non-sexual but intimate nature. However, the solicitor should think

long and hard before entering into such a relationship with a client. The

solicitor may be better served to keep his/her feelings in check and waitfor the completion of the proceedings before engaging in such arelationship with a client.

KEVIN KWEK*

The Standing Committee on Professional Responsibility and Conduct of The StateBar of California (Formal Opinion No. 198792)

Solicitor/client sexual relations an abuse of power, Louise Akenson, Law Inst ituteJournal, May 1995, pp 450453

B.A. (Hons) (Keele), Barrister-at-Law (Middle Temple), Advocate and Solicitor(Spore). I am grateful to Mr Kenneth Tan, SC for his kind and helpful comments on

an earlier draft of this case note. However, I alone remain responsible for any errorsthat remain.

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singham dennis mahendran [2001] 1

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