Ethics in Advocacy – How Far Can You Go?
This article is based on a speech was delivered by Dinesh Dhillon, Partner, Allen & Gledhill LLP, at the Australian Bar Association conference held in July 2019.
Ethics in advocacy – how far can you go? The short answer is one should not be able to get anywhere when it comes to breaching ethics. However, in an increasingly globalised world, differing ethical standards can lead to an uneven playing field. International Arbitration is a global dispute resolution platform. What can we do when standards differ? If the playing field is uneven to begin with, will end users feel justice is being done? Before venturing further on international arbitration, let me start by touching on the foundational basis for ethics in Singapore and its application locally. I will then return to the arbitration conundrum.
The Singapore Legal Profession (Professional Conduct) Rules 2015 (Professional Conduct Rules) (Rule 4a) state that a legal professional has a paramount duty to the Court, which takes precedence over the legal professional’s duty to his client. This is the foundation stone which underpins ethics. Our first duty is to the Court. That means our first duty is always to justice, truth and fairness. Our paramount duty is not “to win” at all cost, no matter how much the client paying the bill may insist it is.
This is why we have a duty to provide all material facts to the Court, a duty to draw the Court’s attention to adverse case authorities and a duty to advise our client on their duty to disclose even adverse documents in discovery.
Lawyers in Singapore have a duty to assess the merits of their client’s cases before initiating proceedings. Sometimes, the duty may extend to advising your client to settle even if the case may have “merit”. In Lock Han Chng Jonathan (Jonathan Luo Hancheng) v Goh Jessiline  2 SLR(R) 455;  SGCA 56, the Court censured Counsel for both parties for advising their clients to litigate and bring matters all the way to the Court of Appeal over a dispute concerning S$60.
Communications to the media must also be carefully made. Avoid comments that violate the sub judice principle or that may be in contempt of Court. Counsel must bear in mind that public blogs or social media postings are not excluded. There was a case in Singapore where a lawyer was fined for writing a poem on Facebook that said the judiciary had turned a blind eye to injustice and was motivated by financial greed.
An interesting area involves witness preparation. How far you can go may well depend on which bar you belong to. Singapore has strict limits on witness preparation. The irony is in the US, I hear, one may actually have failed one’s duty if the lawyer is not robust enough in witness preparation.
The case of Ernest Ferdinand Perez De La Sala v Compania De Navegacion Palomar  1 SLR 894;  SGCA 16 held that witness coaching was not allowed – however, witness familiarisation was perfectly legitimate. Permissible witness preparation becomes impermissible witness coaching when the lawyer’s guidance seeks to supplement or supplant the witnesses’ true recollection with another version of events as the basic principle is that the witness’s evidence must remain his own. Permissible conduct includes taking a witness through his affidavit and to assist his recollection of those facts by referring him to the key documents so that he is able to refresh his memory from these documents and their contents.
However, the preparation should not be too lengthy or repetitive. The exercise by its nature carries an inherent danger, because over time reiteration of questioning may influence the witness to adopt answers which he does not believe to be the truth, but which he has surmised to be more favourable to his case.
Witness preparation should also not be done in groups. This carries a risk that witnesses may change their testimony to bring it in line with what they believe the ‘best’ answer to be and to make their testimonies consistent with each other.
While cross-examining witnesses, a lawyer must not make any statement or ask any question which is scandalous, intended or calculated to vilify, insult or annoy a witness or is otherwise an abuse of the function of the legal professional.
In the case of Public Prosecutor v Xu Jiadong  SGMC 38, the solicitor was reprimanded by the court for asking inappropriate questions during cross-examination. In that case, the lawyer asked the victim (of molest) to stand up to see how attractive she was, and to analyse the size of her body, in order to make out a case that she was not attractive enough to create temptation for his client.
The issue of ethics in international arbitration is complicated as diverse parties from various jurisdictions are bound to have different views and expectations of what is ethical and unethical conduct – such an example can be taken with regards to the practice of witness preparation, which is acceptable (and indeed one is expected to do so) in the United States but is prohibited in both the UK and Singapore.1“The Case for Singapore to Take the Lead in International Arbitration Ethics” by V. K. Rajah In such a situation, the Singapore lawyer’s client could be disadvantaged for no other reason than that, under the professional rules of his home jurisdiction, his counsel is more restricted when it comes to his dealings with witnesses. Thus, there is a need to level the playing field of ethical obligations in international arbitration without offending the professional conduct rules of the relevant jurisdiction.
One solution put forward by the Swiss Arbitration Association is to create a transnational body – the Global Arbitration Ethics Council, with its own set of core ethical principles. Its primary responsibility would be to resolve all claims of ethical misconduct in international arbitration, taking into account the cultural, geographical and other idiosyncrasies of the case. However, the complaint brought before the council would be entirely separate from the main arbitration proceeding.
The London Court of International Arbitration Rules (2014) (LCIA Arbitration Rules (2014)) incorporate an annex of guidelines for counsel’s ethical conduct. This Annex has “bite” in that its rules requires each party to ensure that its legal representatives have agreed to comply with the Annex as a condition of their representation in the arbitration. Under Rule 18.5, the Tribunal is empowered to sanction violations by, inter alia, ordering against the legal representative: (1) a written reprimand, or (2) a written caution as to future conduct in the arbitration.
Guidelines under these rules for the parties’ legal representatives include not engaging in activities which are intended to unfairly obstruct the arbitration or to jeopardise the finality of any award, including repeated challenges to an arbitrator’s appointment or to the jurisdiction of the Arbitral Tribunal known to be unfounded by those legal representatives2LCIA Arbitration Rules (2014), para 2 of the Annex and not making any false statements or presenting false evidence to, or concealing documents from the Tribunal.3LCIA Arbitration Rules (2014), paras 3-5 of the Annex
The Singapore Institute of Arbitrators (SIArb) has also developed similar guidelines – Guidelines on Party-Representative Ethics. However, these are guiding principles rather than mandatory rules with sanctions. They are not meant to be laws but merely a port of call where there is uncertainty as to the permissibility of certain types of conduct in international arbitration.4“Party-Representative Ethics: Time to Move The Needle?” Report by Adriana Uson
Is there a higher ethical standard that is to be adhered to before the courts and another lower standard before the arbitral tribunals?
It is pertinent to note that under the Singapore Professional Conduct Rules, whenever a rule refers to a tribunal, it applies to tribunals constituted under the International Arbitration Act as well5Definition of “Tribunal” under the R2 Professional Conduct Rules. This means that legal professionals would be held to the same standard in court proceedings and before arbitral tribunals. What then of foreign counsel in a Singapore seated arbitration? This is where the risk of the playing field being uneven comes in.
Arbitration rules should provide assurance that the tribunal has the power to impose sanctions against counsel misconduct.6“Party-Representative Ethics: Time To Move The Needle?” Report by Adriana Uson
Arbitral institutions could publish a sanitized account of complaints on counsel misconduct in order to elucidate how and why such behaviours might be considered disruptive and inappropriate.7“Party-Representative Ethics: Time To Move The Needle?” Report by Adriana Uson
Institutions impose three different sanctions, depending on the three different stages of the arbitral proceedings they are in – (1) preventive sanctions, (2) remedial sanctions and (3) punitive sanctions.8“Party-Representative Ethics: Time to move the needle?” Report by Adriana Uson
Preventive sanctions could be used at the early stages of the arbitral proceedings – when the tribunal has been constituted but the hearing has not yet commenced. For instance, they can deal with a challenge to a counsel due to a conflict of interest and can exercise its power to disqualify that counsel from representing a party in the arbitration to avoid disruption.
The second stage is when the proceedings have already started where the tribunal can theoretically impose remedial sanctions, to control, stop, and even punish objectionable conduct by counsel to preserve the integrity of the proceedings.
The third stage would be after the hearing but before the award is issued. During this period, the tribunal can choose to retroactively impose punitive sanctions on “non-disruptive” but nonetheless unethical behaviour that was committed during the hearing. But it would be difficult to discipline counsel at this stage without putting the tribunal’s position in peril. There could be a risk of offending counsel using this as an excuse to challenge the arbitral tribunal on the ground of bias, delaying the release of the award. However, if punitive sanctions are imposed after the award is issued, arguments might be raised that the tribunal is functus officio.
An option would then be for the institutions to amend their rules to remove the requirement of confidentiality to the extent that allows arbitrators to file a complaint to the relevant bar council who will then govern their members’ behaviour accordingly.
Ultimately, having a set of ethical guidelines to adhere to in international arbitration would have its advantages – jurisdictions which uphold such guidelines would be sought after to have their arbitral proceedings seated in the jurisdiction. Awards made in such jurisdictions would also withstand scrutiny wherever they need to be enforced around the world.9“The Case for Singapore to Take the Lead in International Arbitration Ethics” by V. K. Rajah
In conclusion, ethics are foundational to what we do as lawyers. While there are clear difficulties in enforcing a common ethical standard globally, this is a conversation we can ill afford to ignore. The slippery slope down is something the profession can ill afford if ethics are not paramount to all we do.
Endnotes [ + ]
|1.||↑||“The Case for Singapore to Take the Lead in International Arbitration Ethics” by V. K. Rajah|
|2.||↑||LCIA Arbitration Rules (2014), para 2 of the Annex|
|3.||↑||LCIA Arbitration Rules (2014), paras 3-5 of the Annex|
|4.||↑||“Party-Representative Ethics: Time to Move The Needle?” Report by Adriana Uson|
|5.||↑||Definition of “Tribunal” under the R2 Professional Conduct Rules|
|6.||↑||“Party-Representative Ethics: Time To Move The Needle?” Report by Adriana Uson|
|7.||↑||“Party-Representative Ethics: Time To Move The Needle?” Report by Adriana Uson|
|8.||↑||“Party-Representative Ethics: Time to move the needle?” Report by Adriana Uson|
|9.||↑||“The Case for Singapore to Take the Lead in International Arbitration Ethics” by V. K. Rajah|