The Importance of Communicating Effectively with Your Client
Proper client management is one of the most important skills required in legal practice. To ensure a sustainable practice, it is essential for legal practitioners to communicate effectively with their clients to avoid any misunderstandings or misperceptions.
Recent court decisions have highlighted the need for open and honest communication between lawyers and their clients. In particular, the introductory observations by Chief Justice Sundaresh Menon in Loh Der Ming Andrew v Koh Tien Hua  3 SLR 1417 (Loh Der Ming Andrew) are well worth reflecting on:1Loh Der Ming Andrew v Koh Tien Hua (2022) 3 SLR 1417 at (1).
“This case demonstrates how fundamentally important it is for the legal practitioner to communicate openly and honestly with her client. Although it is the legal practitioner’s training, expertise in the law and legal judgment that are typically engaged, the role she fulfils is a representative one. The legal practitioner acts for her clients, and no two clients will be the same. When engaged in litigation, some clients will require much by way of assurance, guidance and counsel, while others may expect little more than to be kept apprised of key milestones. Some will have strong views as to how their matter should be strategised and conducted, while others may be comfortable leaving all this in the hands of the legal practitioner. The mark of the adept professional is her ability not only to identify and provide what each client needs, but to do so in a manner tailored to that client’s needs and suited to address his concerns, all while ensuring her own independence as counsel is preserved and her paramount obligation to the court is fulfilled. This is no easy feat. Challenging cases, difficult clients, as well as time and other pressures often hinder the legal professional’s ability to strike a good balance.” [emphasis added]
This article examines the principle of open and honest communication as set out in Loh Der Ming Andrew and other recent court decisions.
Principle of Open and Honest Communication
In Loh Der Ming Andrew, the respondent lawyer was disciplined for, inter alia, acting contrary to his client’s instructions in divorce proceedings by agreeing to fourteen paragraphs of his client’s Statement of Particulars being struck out by consent. The client had expressly instructed the respondent lawyer that he did not consent to these paragraphs being struck out.
The Court of Three Judges observed that it was unacceptable for a solicitor to act against his client’s express instructions, even if the client’s instructions could not reasonably be pursued. Consistent with a solicitor’s paramount duty to the Court, the solicitor had the freedom “to exercise independent legal judgment as to what is or what is not legally tenable”.2Id, at (87). This freedom was not inconsistent with the solicitor’s duty to the client as any potential conflict between the solicitor’s duty to the Court and his duty to the client should be managed “through open and honest communication”.3Id, at (88). Thus, if the solicitor is of the view that the client intends to adopt an untenable position, this principle “should invariably be the first port of call”.4Ibid. As explained by the Court of Appeal in an earlier decision involving the same parties:5Loh Der Ming Andrew v Koh Tien Hua (2021) 2 SLR 1013 at (80).
“… where a client instructs the solicitor to take a position that the solicitor considers to be untenable or that he is unwilling to take for good reason, the course open to the solicitor is to make his position known to the client with an explanation of why he takes that position. …” [emphasis added]
By adopting the principle of open and honest communication, lawyers may eventually persuade their clients to change their improper instructions.6Ibid. The importance of this principle cannot be understated, particularly “in family law practice, which can be emotionally and relationally challenging, and where the clients are often in an emotionally wrought state”.7Id, at (1). Unreasonable client demands do not offer a good reason to depart from this principle:8Id, at (81).
“The fact that Loh might have been a difficult client was no excuse for Koh acting in breach of his professional duties. Unfortunately, it is not uncommon to come across strong-willed clients who may be ill-informed, but who nonetheless have firm views about how their case is to be run, even if these views are wrong and even contrary to good sense. The solicitor in such circumstances remains under a duty to communicate frankly, firmly and clearly to his client what his views are and what he regards as the applicable limits of what he can do to accommodate the client”. … [emphasis added]
In Loh Der Ming Andrew, the Court of Three Judges observed that the respondent lawyer had not communicated frankly with his client. Instead, he “curiously took it upon himself to decide on positions that were contrary to [his client’s] express instructions”, even though the client was “[willing] to communicate, take advice and give instructions”.9Id, at (89). Although the respondent lawyer was “not necessarily wrong in his views as to the merits of the positions that [the client] had wanted him to take”, the Court held that this was “plainly imprudent and improper”.10Ibid.
From a comparative perspective, legal practitioners should take note that Australian academic commentary has warned lawyers against “trying to do good by stealth”, whereby “practitioners are prepared to either ignore the client’s instructions or to assume that their actions will be ratified by the client later”.11Lewis & Kyrou’s Handy Hints on Legal Practice (Australia: LexisNexis, 4th edition, 2018) at (5.25). This phenomenon is especially common in cases where the legal practitioner “act[s] for friends or relatives” and assumes that he knows what his client’s instructions would be based on his apparently intimate knowledge of his client.12Ibid.
The Court of Three Judges also observed in Loh Der Ming Andrew that if, despite full and frank communication by the solicitor, the client continues to be adamant on pursuing an untenable position, “the solicitor should then consider carefully, given her paramount duty to the Court, whether it would be best to discharge herself”.13Supra, n 1, at (88). In an earlier decision involving the same parties, the Court of Appeal similarly observed as follows:14Supra, n 5.
“… If, despite this, the client insists on that course, the solicitor should discharge himself: see Richard Buxton (a firm) v Mills-Owens  4 All ER 405 at − where the court held that a solicitor should refuse to argue a point which is not properly arguable, and that the solicitor is entitled to terminate the retainer should the client insist on him arguing it. What he cannot do in such circumstances is to go ahead and conduct the case in a manner that is contrary to his client’s instructions.” [emphasis in original]
This observation was also reiterated by the Court of Three Judges in another recent disciplinary decision:15Tan Ng Kuang and another v Jai Swarup Pathak (2022) 3 SLR 788 at (93).
“If the lawyer is faced with unreasonable instructions and expectations from his client such that the client’s directions would require the lawyer to breach a legal or ethical duty, the lawyer should discharge himself as counsel for the client. …” [emphasis added]
In this regard, the Court of Three Judges provided a useful example of how a solicitor should approach this situation, in terms of communicating with the client and deciding whether to cease acting for the client:16Id, at (90).
“… Thus, for instance, if a lawyer’s client wishes to make a fraudulent misrepresentation to a potential buyer, and the lawyer is aware that the representation would be a fraudulent misrepresentation, the lawyer should not be communicating such a fraudulent misrepresentation to the potential buyer, even if this would further the client’s interests or if the client instructs the lawyer to do so. The lawyer cannot inform the opposing party of this fraudulent misrepresentation, in accordance with his duties of confidentiality and loyalty to his client, but the lawyer should advise his client not to make such a fraudulent misrepresentation and, if the client insists, avoid assisting the client in making the representation and, if necessary, cease acting for that client as explained at  below.” [emphasis added]
The client may also give certain instructions that would require a solicitor to breach her ethical duty. In the more recent case of Law Society of Singapore v Naidu Priyalatha,17(2022) SGHC 224. the Court of Three Judges offered some practical guidance on what a solicitor should do when faced with client pressure to breach an undertaking given to third parties. In that case, the respondent lawyer had given an undertaking to the other parties in the dispute that she would not release a cashier’s order to her clients until all disputing parties had reached a comprehensive settlement agreement.
The Court noted that the other disputing parties would have relied on the undertaking so as to “allay their fear that [the respondent lawyer’s clients] would misuse the funds”.18Id, at (43). However, less than a month after giving the undertaking, the respondent lawyer deliberately breached the undertaking by releasing the cashier’s order to her clients even though no settlement agreement had been reached at that point. The Court observed as follows:19Id, at (41).
“…Even if the Respondent had been facing pressure from the Clients, this was not a reason for her to resile from the promise she had given to the [other disputing parties]. She could have informed them flatly that the Undertaking prohibited the release of the Cashier’s Order, or she could have returned it to the [other disputing parties]. …” [emphasis added]
The Court’s point that the respondent lawyer should have remained firm with her clients on complying with the undertaking reinforces the principle of open and honest communication between lawyers and their clients.
The cases examined in this article are not exhaustive of the situations in which lawyers need to communicate with their clients effectively, especially in the face of unreasonable client demands or illegitimate client pressure. Nevertheless, they offer a good starting point for lawyers to appreciate the importance of frank and candid communications with their clients. Where clients, however, continue to insist that lawyers carry out their improper instructions that conflict with their paramount duty to the Court or other overriding ethical or legal duties, lawyers must carefully consider whether they should discharge themselves in order to avoid breaching their ethical or legal duties.20See rules 26(5) and 26(6) of the Legal Profession (Professional Conduct) Rules 2015 on the ethical duties involved in withdrawing from the representation of a client in a case or matter.
* The views expressed in this article are the personal views of the author and do not represent the views of The Law Society of Singapore.
|↑1||Loh Der Ming Andrew v Koh Tien Hua (2022) 3 SLR 1417 at (1).|
|↑2||Id, at (87).|
|↑3||Id, at (88).|
|↑5||Loh Der Ming Andrew v Koh Tien Hua (2021) 2 SLR 1013 at (80).|
|↑7||Id, at (1).|
|↑8||Id, at (81).|
|↑9||Id, at (89).|
|↑11||Lewis & Kyrou’s Handy Hints on Legal Practice (Australia: LexisNexis, 4th edition, 2018) at (5.25).|
|↑13||Supra, n 1, at (88).|
|↑14||Supra, n 5.|
|↑15||Tan Ng Kuang and another v Jai Swarup Pathak (2022) 3 SLR 788 at (93).|
|↑16||Id, at (90).|
|↑17||(2022) SGHC 224.|
|↑18||Id, at (43).|
|↑19||Id, at (41).|
|↑20||See rules 26(5) and 26(6) of the Legal Profession (Professional Conduct) Rules 2015 on the ethical duties involved in withdrawing from the representation of a client in a case or matter.|