Law Society of Singapore v Ezekiel Peter Latimer

[1] About two years ago, disciplinary proceedings were commenced against Mr Ezekiel Peter Latimer (“the Respondent”) in respect of his alleged misconduct while acting for Mr Chung Fook Keong Melvin (“Mr Chung”) and Ms Doan Thi Thanh Thuy (“Ms Thuy”) (collectively, “the Complainants”) in the period from 2016 to 2019. The acts and omissions that were complained of pertained to two sets of events: (a) the Respondent’s involvement in Ms Thuy’s appointment as a director of a company and the events which followed (“the first matter”), and (b) his management of the Complainants’ lawsuit in MC/MC 16562/2017 (“MC 16562” and also referred to in these grounds as “the second matter”). These were essentially two separate matters.

[2] Two charges were preferred by the Law Society of Singapore (“the Applicant”) against the Respondent with respect to each matter:

(a) in relation to the first matter, a charge of failing to disclose to Ms Thuy information which would reasonably affect her interests (in particular, that the company was involved in significant ongoing litigation) (“the First Charge”);

(b) also in relation to the first matter, a charge of failing to withdraw from representing Ms Thuy despite a reasonable expectation of a conflict between her interests and his own, which allegedly arose when the Respondent provided a personal surety to secure Ms Thuy’s return to Singapore (“the Second Charge”);

(c) in relation to the second matter, a charge of failing to act with reasonable diligence and competence in MC 16562 (“the Third Charge”); and

(d) a charge of failing to keep the Complainants reasonably informed of the progress of MC 16562 (“the Fourth Charge”).

[4] Having heard the parties on 24 January 2024, we overturned the DT’s findings in relation to the Second Charge but agreed that the First, Third and Fourth Charges were made out beyond a reasonable doubt. Based on these three charges, we were satisfied that due cause had been shown and struck the Respondent off the Roll of Advocates and Solicitors. We furnished our reasons in brief at the time and now set out the detailed grounds for our decision.

[6] This is the context in which we considered the present charges. We first set out the facts pertaining to each of the two matters that these charges are founded upon.

[7] In or around 2015, the Complainants engaged the Respondent to act for them in an adoption matter. It appears that this was how the Respondent first became acquainted with the Complainants. Subsequently in 2016, the Respondent asked Ms Thuy whether she would be interested in becoming a director of Hang Huo Energy Pte Ltd (“the Company”). He informed her that the Company was dormant and needed to replace another director, supposedly one Mr Lim Kian Boon (“Mr Lim”). Mr Lim allegedly needed to return to Malaysia to undergo medical treatment. According to Ms Thuy, the Respondent told her that she would not need to do anything in relation to the Company’s business or affairs and that she could potentially be employed by the Company upon Mr Lim’s completion of his treatment and return to Singapore.

[8] It was not disputed that Ms Thuy had specifically asked the Respondent what the “risks or potential risk and responsibilities of becoming a director” were. The Respondent admitted that he had assured Ms Thuy she would not face any liability as long as she did not sign any personal guarantee. Ms Thuy then agreed and was appointed a director of the Company on 8 October 2016.

[9] The Company was not in fact dormant. Further, the Respondent had omitted to inform Ms Thuy that the Company was party to an ongoing suit, HC/S 1248/2014 (“Suit 1248”), that had been brought by Horizon Petroleum Limited (“HPL”), a Malaysian-registered company, to recover a debt of US$1.6m which the Company allegedly owed to HPL. According to Ms Thuy, the Respondent did not inform her of (a) the state of the Company’s indebtedness owed to HPL, and (b) the existence of Suit 1248, much less that it was ongoing at the time she agreed to become a director. This was despite the fact that the Respondent was aware at the time that the Company was involved in Suit 1248 and had seen no documentary proof that the suit had been settled. He chose instead to rely solely on assertions by Mr Lim that Suit 1248 had been settled and conducted no checks of his own.

[10] HPL later obtained final judgment in Suit 1248 on 20 February 2017, and it then filed an application against the Company for examination of the judgment debtor (“EJD”). In the EJD proceedings, the court made six orders between July and December 2017 for Ms Thuy (and others) to attend before the court and to be orally examined on the debts of the Company. However, Ms Thuy, who it appears was unaware of the fact that judgment had been entered against the Company, and therefore also of the EJD proceedings, failed to respond to any of the orders. The Respondent, who was appointed to act for the Company in Suit 1248 on 20 October 2017, knew of these proceedings but apparently failed to inform Ms Thuy of them. HPL eventually commenced committal proceedings against Ms Thuy.

[13] The Respondent in the meantime had been engaged by the Complainants in September 2017 to commence MC 16562 against two individuals, Ms Tran Thi Vinh and Mr Chong Kim Miaw (“the Defendants”), for the repayment of loans which the Complainants had allegedly extended to them. In those proceedings, the Defendants’ solicitors requested copies of certain documents that were in the Complainants’ list of documents.

[17] As mentioned at [2] above, the First and Second Charges pertained to the Respondent’s conduct in relation to Ms Thuy’s appointment as a director of the Company and the events following therefrom while the Third and Fourth Charges related to the Respondent’s mismanagement of MC 16562. We reproduce the relevant portions of the charges as follows:

Alternative charges were also brought in respect of each of these charges under s 83(2)(h) of the LPA.

[19] Before us, the Applicant submitted that due cause had been made out under s 83(1) read with s 83(2)(b) of the LPA. This was because the Respondent’s misconduct reflected in the four charges as a whole was egregious and undoubtedly serious enough to warrant sanction. In particular, the Respondent was said to be in “utter dereliction of his duties which he owed to his client – these duties being some of the most basic duties that every advocate and solicitor is expected to uphold”.

[21] The Respondent, who appeared in person, did not file an affidavit in response to OA 7 and he indicated to us that he did not wish to contest the findings of the DT. However, he had filed written submissions on 22 January 2024, two days before the hearing, which set out some factors that he believed were mitigating and that he highlighted to us. He asked the court to impose a suspension term instead of striking him off the Roll of Advocates and Solicitors and contended that the various acts of misconduct had occurred within a particular period of a time when he was overworked and unable to cope. He also indicated that he had not been found guilty of financial dishonesty or misappropriation, and that he had suffered great financial hardship as a result of his ongoing suspension.

[22] Two issues arose for our determination:

(a) whether due cause was shown in respect of any of the four charges; and

(b) if so, what the appropriate sanction was.

[23] Although the DT had found that “cause of sufficient gravity for disciplinary action” existed, it was for us to decide whether on the facts presented, the conduct in question fell within one or more of the limbs in s 83(2) of the LPA and, if so, to decide whether there was due cause for sanction: Law Society of Singapore v Jasmine Gowrimani d/o Daniel [2010] 3 SLR 390 at [35].

[24] In such circumstances, the court must consider whether on the totality of the facts and circumstances, the solicitor’s conduct is sufficiently serious to warrant the imposition of sanctions under s 83(1) of the LPA: Law Society of Singapore v Udeh Kumar s/o Sethuraju and another matter [2017] 4 SLR 1369 (“Udeh Kumar”) at [30].

[25] Applying these principles, we were satisfied that the First, Third and Fourth Charges were established on the evidence and the conduct in question fell within s 83(2)(b) of the LPA. However, we did not think the Second Charge was made out on the evidence before us. It is therefore to this charge that we first turn.

[26] The Second Charge alleged that, while acting for Ms Thuy in Suit 1248, the Respondent failed to withdraw from representing her despite the reasonable expectation of a conflict between his duty to serve the best interests of Ms Thuy as his client and his personal interests. This expectation was said to arise because the Respondent provided the Personal Undertaking to the court, and this was allegedly in breach of r 22(2) of the LPPCR, which provides as follows:

[27] Under r 22(3) of the LPPCR, the Respondent was required in such circumstances to: (a) make full and frank disclosure of the adverse interest to Ms Thuy; (b) advise Ms Thuy to obtain legal advice; (c) ensure that Ms Thuy was not under an impression that the Respondent was protecting her interests; and (d) obtain Ms Thuy’s informed consent in writing to his acting or continuing to act on her behalf.

[28] The DT found that the Respondent had breached r 22. By providing the Personal Undertaking, the Respondent would be held personally liable for the sum of $25,000 for which he had agreed to stand as surety, in the event Ms Thuy breached any of the conditions upon which her passport had been released to her. In the premises, the DT considered that the Respondent had an interest in ensuring that she complied with those conditions. However, the DT found that this was in potential conflict with Ms Thuy’s own interest. The DT thought that if Ms Thuy had a legitimate reason to remain in Vietnam beyond the 30 days and needed the Respondent to apply to the court to defer the date on which her passport was to be surrendered, this would have entailed “a degree of personal risk” to the Respondent as he would have been liable pursuant to his undertaking, in the event the court rejected any such request.

[30] We were also not persuaded that the Respondent, guided by his desire to protect his financial interests, might have prevailed upon Ms Thuy to return to Singapore regardless of any legitimate reasons she might have had to prolong her stay. This was speculative to begin with. Further, the Respondent could only have countenanced Ms Thuy remaining away from Singapore if he had been able to secure the necessary variation of the terms and this was precisely what Ms Thuy’s interests would have dictated in such circumstances. If the argument was to the effect that the Respondent might not apply himself sufficiently to securing such a variation, that simply had nothing to do with any question of a conflict of interest, and it would also be speculative.

[32] In any case, we take this opportunity to reiterate that the solicitor’s undertaking has been described as a sui generis bond which is akin to a guarantee and practically equivalent to a sacred vow: Law Society of Singapore v Naidu Priyalatha [2023] 3 SLR 1401 (“Naidu Priyalatha”) at [1]. This allows those to whom such an undertaking is proffered (whether that is the court, other practitioners or members of the public) to assume that, once given, it will be scrupulously performed: Briggs & Anor v The Law Society [2005] EWHC 1830 (Admin) at [35]. It is against this backdrop that solicitors can be called to account for breaches of their undertakings, which includes both legal repercussions and possible disciplinary action: Naidu Priyalatha at [32].

[33] Given the weighty implications which accompany the provision of a solicitor’s undertaking, it is plain that solicitors would be well-advised to avoid giving an undertaking in relation to a matter that lies beyond their control. A solicitor should typically only give an undertaking with which he or she is able to comply: Naidu Priyalatha at [32]. And all eventualities which might affect the solicitor’s ability to perform the undertaking should be carefully considered prior to giving it: see The Guide to the Professional Conduct of Solicitors (Nicola Taylor gen ed) (The Law Society, 8th Ed, 1999) at p 353. Should a solicitor choose to provide an undertaking in relation to matters outside his or her control, such as an undertaking pertaining to a third party’s conduct, this is done at the solicitor’s own peril. The fact that the undertaking pertains to actions that the solicitor has no control over will not change the nature of the undertaking. The solicitor may therefore face disciplinary action for any breaches of the undertaking even if it is occasioned by the acts of a third party.

[34] For the same reason, an undertaking to pay a sum of money upon the happening of an event should, as a matter of prudence, be given on the basis that the relevant funds have been made available to the solicitors: see United Bank of Kuwait Ltd v Hammoud and others [1988] 1 WLR 1051 at 1063.

[35] We turn to consider the other charges.

[36] The First Charge alleged that, while acting for Ms Thuy, the Respondent had failed to disclose information which would reasonably affect her interests. This included the fact that the Company was involved in ongoing litigation in Suit 1248 and that the Company owed a debt to HPL. The failure to disclose this was said to constitute a breach of r 5(2)(b) of the LPPCR, which reads as follows:

[37] We agreed with the DT that the First Charge was made out.

[38] First, we were satisfied that an implied retainer existed between the Respondent and Ms Thuy. It is important to note that there had been an ongoing solicitor-client relationship at the material time in that the Respondent had been acting as Ms Thuy’s lawyer in relation to the adoption matter when he had approached her and presented her with the directorship opportunity. More importantly, Ms Thuy sought legal advice, which was provided by the Respondent, on the question of the risks and responsibilities which accompanied directorship. As it turned out, the Respondent’s advice that no liability could attach to Ms Thuy as long as she did not sign a personal guarantee was incorrect, but that does not detract from the fact that advice was sought and given in circumstances where it was to be expected that such advice would be relied on, and this was central to the existence of the retainer. His contention that he had merely interacted with Ms Thuy “as a friend” was rightly rejected by the DT. The duty under r 5(2)(b) of the LPPCR was therefore triggered.

[39] Second, the Respondent was in breach of this duty as he provided Ms Thuy with false information that the Company was dormant and withheld material information in relation to its involvement in ongoing litigation. Before the DT, the Respondent argued that he was informed by Mr Lim that the Company had entered into a settlement with HPL in respect of Suit 1248 and that there were no ongoing proceedings against the Company.

[40] Whilst the Company was indeed on the brink of entering into mediation proceedings with HPL at the time, such mediation proceedings did not eventually materialise. It therefore could not be disputed that the Respondent had withheld material information from Ms Thuy or provided her with incorrect information. The Respondent admitted that he had not bothered to confirm or check that his understanding of the status of Suit 1248 was correct. Instead, he had relied solely on what Mr Lim, who in fact was not even a director of the Company, had told him. In the light of Ms Thuy’s concerns over the potential risks attaching to the directorship, such information would reasonably have been expected to have affected Ms Thuy’s interests. There was thus an abject lack of candour and care in the Respondent’s dealings with Ms Thuy which ultimately led to committal proceedings being instituted against her.

[41] The severity of the Respondent’s conduct was also exacerbated by the fact that Ms Thuy was a layperson who was neither legally trained nor well-versed in English. She would therefore have required clear and comprehensible advice for even simple matters (see Law Society of Singapore v K Jayakumar Naidu [2012] 4 SLR 1232 at [1]), and this would have been considerably more pertinent in a matter involving the duties and responsibilities of directorship.

[42] We were therefore amply satisfied that there was a breach of r 5(2)(b) of the LPPCR and that due cause for sanction existed.

[51] Having found that due cause had been shown in respect of each of the First, Third and Fourth Charges, we concluded that the Respondent’s misconduct taken as a whole warranted his being struck off the Roll of Advocates and Solicitors.

[52] The general sentencing principles underlying the determination of the appropriate penalty in cases of disciplinary proceedings are well established and may be summarised as follows (see Law Society of Singapore v Ravi s/o Madasamy [2023] 4 SLR 1760 at [114]):

(a) the protection of members of the public who are dependent on solicitors in the administration of justice;

(b) the upholding of public confidence in the integrity of the legal profession;

(c) deterrence of similar defaults by the same solicitor and other solicitors in the future; and

(d) the punishment of the solicitor for his misconduct.

Of the four principles above, the paramount considerations are the protection of the public and the upholding of public confidence in the integrity of the legal profession.

(a) First, the court will consider whether the misconduct in question attests to any character defects rendering the solicitor unfit to be a member of the legal profession. This will depend on the particulars of the misconduct, and the court should consider, taking into account all the circumstances of the misconduct, whether the misconduct stemmed from a lapse of judgment rather than a character defect.

(b) Second, the court will consider whether the solicitor, through his misconduct, has caused grave dishonour to the standing of the legal profession.

(c) If the answer to (a) or (b) is yes, striking off will be the presumptive penalty. This presumption will only be rebutted in exceptional cases.

[54] On the first element of the Samuel Seow framework, we considered that given the sustained pattern of offending conduct, there was sufficient basis for us to conclude that this pointed to a defect of character rendering the Respondent unfit to be a member of the legal profession. In coming to this conclusion, we also took into consideration how such instances of misconduct had been approached in prior cases.

[55] We first considered the case of Law Society of Singapore v Ooi Oon Tat [2023] 3 SLR 966 (“Ooi Oon Tat”), which the Applicant relied on before the DT and at the hearing before us. Even though we agreed that the facts of that case bore, at first glance, some similarity to the Respondent’s misconduct in relation to the Third and Fourth Charges, there were nevertheless important points of distinction.

[59] We next considered the decision of this court in Law Society of Singapore v Seah Choon Huat Johnny and another matter [2024] SGHC 19 (“Johnny Seah”). There, two separate complaints were brought against the respondent resulting in a total of five charges. The two charges relating to the first complaint pertained to the respondent’s firm having wrongly filed a notice of discontinuance in respect of a client’s suit and the respondent’s subsequent mismanagement of the suit. The three charges relating to the second complaint involved a separate matter where (a) the respondent failed to act timeously on his client’s instructions to vary certain orders and to keep his client reasonably informed of the progress of her application, (b) the respondent failed to attend a case conference without reasonable justification or notice to his client, and (c) the respondent failed to respond to or comply with the requests of his client’s new solicitors to take over the matter. The C3J imposed a suspension for a period of six months for the charges relating to the first complaint, and a further suspension for a period of four years for the charges relating to the second. In respect of the latter, a three-year suspension was imposed for the two charges relating to his failure to act timeously on instructions, to keep his client reasonably informed of her application and to attend the case conference. A one-year suspension was imposed for the third charge.

[60] The court did not consider that the case warranted a striking off even though it found that the respondent had demonstrated a “pattern of irresponsibility and a cavalier disregard for his client’s interests” and that his misconduct spanned a period of about five years. Whilst the respondent’s client had been prejudiced by his misconduct, the respondent in that case had (a) no relevant antecedents and (b) made full compensation for the loss suffered by his client. In the present case, the Respondent has a number of antecedents which, taken together with the present charges, pointed clearly to a pattern of behaviour that suggested a defect of character incompatible with membership of the profession. There had also not been restitution of the losses incurred by his client (see [65] below).

[61] Finally, we considered Udeh Kumar. The respondent there faced 11 charges before the C3J, which fell within three broad categories: (a) a failure to use his best endeavours to avoid unnecessary adjournments, expense and wastage of the court’s time, (b) deceiving or misleading the court by making false and inaccurate statements, and (c) advising his client to obtain a medical certificate under false pretences to excuse the client’s absence from court. Considering the misconduct in totality, the court struck the respondent off the Roll of Advocates and Solicitors.

[63] Having considered the application of the relevant principles in the three cases above, we were satisfied that the Respondent had demonstrated a sustained pattern of offensive conduct which pointed to a character defect rendering him unfit to remain as an Advocate and Solicitor. In our judgment, the nature of his collective misconduct fell somewhere between that of the solicitors in question in Ooi Oon Tat and Udeh Kumar.

[64] Unlike in Ooi Oon Tat, where the wrongdoing pertained to a single matter and spanned a period of six months, the Respondent’s misconduct with respect to the First, Third and Fourth Charges involved his failure to manage appropriately two distinct matters across a period of several years. Moreover, whilst the respondent in Ooi Oon Tat had been previously sanctioned once for failing to deposit client monies in the appropriate account, there were two antecedents against the Respondent as set out at [5] above. Considering the totality of the Respondent’s misconduct across the three charges here as well as his antecedents, it was clear to us that there was a persistent lack of understanding of the nature of his duty to his clients and a persistent disregard for their interests. His misconduct could not be characterised as lapses in judgment by any measure.