Change is the Only Constant … Embrace and Welcome Change
Dear newly called Learned Friends,
Congratulations on being admitted as an Advocate and Solicitor. You survived law school, Bar examinations and Practice Training Contract. Before life becomes hectic, take a breather, and enjoy this significant milestone.
You have joined this profession at an exciting time. The profession is undergoing major changes in various areas. Two of the more significant changes are the new Rules of Court 2021 (ROC 2021) and the introduction of Conditional Fee Agreements. While changes brew uncertainty and may appear daunting to a new/young lawyer who has much to learn, I invite you to embrace it. After all, “change” is how new laws are made.
The ROC 2021
The ROC 2021 was gazetted in December 2021, and came into effect from 1 April 2022. Proceedings that were filed before 1 April 2022 continue to be governed by the old Rules of Court. As at the time of writing this article, the ROC 2021 is still in its teething stage, and it could take a few months for its impact to be felt since the majority of the ongoing matters are still governed by the old regime.
The ROC 2021 drastically changes the familiar civil litigation rules and procedures, and has been long in the making. These drastic changes have turned the clock back for all civil litigators, and enabled us to relive our “newbie” days once again. Gone will be the days where seniors could point to (or recite) specific rules, provisions or timelines, as well as trite legal principles or case law, in or related to the old Rules of Court by heart. Our not-so-young practitioners will also have to reformulate tried and tested litigation strategies.
Much ink has been spilt over the changes under the new ROC 2021. This article is not intended to analyse these changes, save to highlight how some of these might impact new/young lawyers. Of the changes, the key changes (to me) are:
- The introduction of the five Ideals (fair access to justice, expeditious proceedings, proportionate cost-effective work, efficient use of court resources, and fair and practical results suited to the needs of the parties) which guides the Court’s exercise of powers;1Order 3, rule 1 of the ROC 2021.
- Simplification of court terminology;
- Parties are now under an express duty “to consider amicable resolution of the party’s dispute before the commencement and during the course of any action or appeal”,2Order 5, rule 1(1) of the ROC 2021. and the Court is empowered to order parties to attempt amicable resolution;3Order 5, rule 3(1) of the ROC 2021.
- In contrast to the old Rules of Court where various interlocutory application may be filed when the need arises, parties are now to file a Single Application Pending Trial (SAPT) to “deal with all matters that are necessary for the case to proceed expeditiously”.4Order 9, rule 9(2) of the ROC 2021. Save for the applications identified in Order 9, rule 7 of the ROC 2021, unless otherwise directed by the Court, no other application may be taken out.5Order 9, rule 9(7) of the ROC 2021.
- Affidavits of Evidence-in-Chief may be ordered to be filed before discovery;6Order 9, rule 8 of the ROC 2021. and
- Parties are now under a duty to only disclose the documents they require to rely on at trial and documents adverse to their case, instead of all relevant documents.7Order 11, rule 2 of the ROC 2021.
As a new/young lawyer juggling a myriad of tasks, from drafting cause papers and meeting Court deadlines, to doing research and honing advocacy or litigation skills, the ROC 2021 may appear to be an unwelcome distraction. If you are reading this article hoping for a “cheat code” to the ROC 2021 or an assurance that the impact of the ROC 2021 would be minimal, I am sorry to disappoint.
Time and effort will inevitably be required to re-learn the Rules of Court. This would understandably be more onerous for newly-called lawyers who have to learn both versions simultaneously. Unlike the not-so-young practitioners who are familiar with the old Rules of Court, a newly-called lawyer may have to put in additional effort to understand the differences/nuances between both versions; only to archive the old regime shortly thereafter once all proceedings under the old regime have been disposed of. This could be challenging since there is presently a dearth of case law on the ROC 2021. However, the upside is that the entire Bar will be learning the ROC 2021 together. To circumnavigate this, I would suggest attending as many CPD events on the ROC 2021 (if any) as possible. Please also do not be afraid to reach out to your peers, seniors or even opposing counsel (who will become your friends in time to come) if you have any questions.
We now have the privilege of being the generation of lawyers who can make law on these novel points of law; perhaps even being immortalised as the new locus classicus case (if that is your ambition).
As juniors, how fast we master the ROC 2021 may be the factor that differentiates us from our peers. Given that the legal principles on the ROC 2021, particularly on how an Ideal and/or rule is to be applied, or the interplay between existing legal principles and the ROC 2021, are uncharted waters, there will be numerous novel points of law to determine. We now have the privilege of being the generation of lawyers who can make law on these novel points of law; perhaps even being immortalised as the new locus classicus case (if that is your ambition).
In terms of lawyering skills, one may argue that the SAPT will have a significant impact on the development of a new/young lawyer. As it currently stands, besides the typical Pre-Trial Conferences or Case Conferences, interlocutory applications are the forum for new/young lawyers to gain oral advocacy exposure. I am a beneficiary of this system, and I still laugh to myself when I reminisce arguing my first interlocutory application (at about six-month PQE) in the presence of lead counsel, and how excited (but terrified) I was. Speaking as a young lawyer, one can never have too much practice in oral advocacy, and I still feel jitters preparing for any oral arguments today.
When the SAPT was first announced, there were concerns that the new regime would reduce the opportunities for any lawyer to hone his/her oral advocacy skills or courtroom awareness and etiquette. Lawyers were concerned that, given the nature of the omnibus application, clients would request for lead counsel or more experienced lawyers to argue the matter. This was not ideal since most of our legal battles nowadays are already done through written advocacy over oral advocacy. Thankfully, it has been clarified that the SAPT is not intended to be heard before the same Judge/Registrar at the same hearing but could be disposed of over several hearings.8https://www.judiciary.gov.sg/new-rules-of-court-2021/digest-3#:~:text=4.-,No.,Registrar%20at%20the%20same%20hearing. Nevertheless, if you are feeling up to the task, please do not shy away from asking for an opportunity to argue one part of the SAPT. After all, we are in the business of persuading others, and you have “won” your first hearing if you managed to convince your seniors to entrust you with it.
Besides the above, the narrowing of a litigant’s duty of disclosure, from all relevant documents, to only documents they require to rely on at trial and documents adverse to their case may sound like a “Hurray!”. Whilst this does not change our duty to meticulously review our client’s documents, we may see fewer late nights burnt perusing voluminous unnecessary and immaterial documents disclosed by the opposing party.
Another change that may potentially impact the practice of a new/young lawyer is the push towards attempting an amicable resolution of the matter. While this deviates from old-school lawyering, it can be a welcomed change because it pushes lawyers to be trained in both the art of advocacy and negotiation. Both skill sets complement each other; and while lawyers will inevitably receive training in advocacy in some form or another, this may not be the case for negotiations. Although this push may see a reduction in the various pre-trial applications and trial exposure, it could be a win-win as settlements are more cost-effective for clients and sustainable (or even satisfying) for a new/young lawyer.
Negotiation is also an alternative avenue for new/young lawyers to pick up oral advocacy experience, albeit in a less tense/acrimonious setting. However, whilst I understand the adrenaline rush from watching Harvey Specter closing deals (ignoring his ethical issues), I would caution against leading the negotiations too early in your career as it takes a certain level of emotional intelligence and gut feel (which can only be obtained from experience, unless you are a natural talent) to close deals effectively. Mastering negotiation involves strategizing and this takes time. Experience is also necessary to render advice on your client’s Best/Worst Alternative to a Negotiated Agreement, as well as to read the negotiations to make critical decisions. That being said, gaining experience in negotiations as a new/young lawyer remains useful as it opens the door to develop your own unique style of negotiating or a niche practice in negotiations (or maybe even becoming a Mediator).
To sum up, I would suggest viewing the ROC 2021 with an open mind and to be bold to ask for help. Even if you do stumble, what is important is that, as new/young lawyers, we pick ourselves up, learn from our mistakes and improve.
Conditional Fee Agreements (CFA)
A tenet of our Legal Profession Act (LPA) was that conditional fee and contingency fee agreements are prohibited in Singapore. For a variety of reasons, including to promote Singapore as an international dispute resolution hub and to increase access to justice for those discouraged from pursuing legal rights due to legal fees, the Legal Profession (Amendment) Act 2022 was passed on 12 January 2022. With effect from 4 May 2022, in addition to traditional fee agreements under the LPA, CFAs (which are recognised in other major common law jurisdictions) are now permitted and governed under Part 8A of the LPA (sections 115A to 115F). Contingency fee agreements, under which lawyers receive an agreed percentage of the sum recovered by a client, continue to be prohibited.
Having trained in the era where CFAs were prohibited, it remains an unfamiliar area to me. But this is precisely the point I am making – CFAs can be challenging to practising lawyers, much less a new/young lawyer.
A CFA is a remuneration and costs agreement in respect of contentious proceedings between solicitor and client, which “provides for the remuneration and costs or any part of them to be payable only in specified circumstances, and may provide for an uplift fee”.9Section 115A(1) of the LPA. In layman terms, a typical CFA could therefore take the form of (1) an uplift fee in specified circumstances; (2) “no win, no fee”; or (3) “no win, less fee”. Before a CFA is entered into, pursuant to Regulation 4 of the Legal Profession (Conditional Fee Agreement) Regulations 2022 (LP(CFA)R), clients must be advised (1) on the scope of the CFA, (2) on his/her right to seek independent legal advice, (3) that uplift fees are non-recoverable, and (4) that he/she continues to be liable for any adverse costs order(s). A valid CFA must be in writing and signed by the client, and must contain all the terms prescribed under Regulation 5 of the LP(CFA)R.
However, CFAs are presently limited to international and domestic arbitration, selected proceedings in the Singapore International Commercial Court, and court proceedings or mediation related to the foregoing.10Regulation 3 of the LP(CFA)R. It does not apply to civil, commercial, criminal or family proceedings, in the Supreme Court, State Courts or Family Justice Courts. In other words, not every lawyer will be exposed to or enter into a CFA.
Given the limited scope of a CFA, its impact and ensuing challenges faced by new/young lawyers would naturally be curtailed in terms of the percentage of the Bar being exposed. For those few who are/will be exposed to it, there will definitely be challenges.
For starters, the law in this area is undeveloped. Whilst Part 8A of the LPA and the LP(CFA)R provide for the requirements and structure of a CFA, the exact interpretation and application of the provisions have not been tested in court. For example, a CFA could take a different structure from the three forms above, and the Court may have to adjudicate on whether such structure is permissible. In terms of our professional ethics rules, special care must also be taken in the agreeing to or drafting of a CFA to ensure that our legal profession rules have been adhered to or risk disciplinary proceedings.
Whilst a CFA is a management-level decision and a discussion to be held between client and partner, a new/young lawyer may be tasked to review or incorporate amendments to a CFA. Alternatively, he/she may be tasked to prepare a “template” CFA for the firm, or to brief partner(s) on the operation of a CFA. It may thus be a challenge to a new/young lawyer to get up to speed on a CFA, on top of handling his/her day-to-day tasks. That being said, CFAs are not that daunting as it is essentially a contract for services between solicitor and client; and I would suggest approaching it by going back to basics and applying the same skills used to review a simple contract for services, whilst bearing in mind the requirements under the LPA and LP(CFA)R.
As a CFA allows for different methods to structure fees, it could also provide an opportunity to develop a unique skill in structuring financial terms in a win-win manner for all contractual parties. Therefore, being exposed to such structuring early at a young age could help shape the business acumen of a new/young lawyer, or even provide exposure in structuring financial terms that could come in useful in closing deals or settlement agreements. Such skills are not only relevant to big money cases but could also come in handy for divorce settlement terms.
The question I ask myself is: Would new/young lawyers who put in blood, sweat and tears be short-changed under a CFA if the client does not obtain the desired result? Perhaps on a personal satisfaction level, yes. In terms of income, it is too early to speculate. However, this “gamble” may be the extra motivation for us to gun for the win when the going gets tough.
Notwithstanding the above, those of us who are presently not exposed to CFAs should not ignore this development. If this regime is successful, there is a possibility that it may be incrementally expanded to include all Court proceedings in Singapore.
Before signing off, I once again congratulate you on your admission. I hope you are excited for your legal journey, and look forward to meeting you in court (chilling in the Bar room, of course).
|↑1||Order 3, rule 1 of the ROC 2021.|
|↑2||Order 5, rule 1(1) of the ROC 2021.|
|↑3||Order 5, rule 3(1) of the ROC 2021.|
|↑4||Order 9, rule 9(2) of the ROC 2021.|
|↑5||Order 9, rule 9(7) of the ROC 2021.|
|↑6||Order 9, rule 8 of the ROC 2021.|
|↑7||Order 11, rule 2 of the ROC 2021.|
|↑9||Section 115A(1) of the LPA.|
|↑10||Regulation 3 of the LP(CFA)R.|