IN THE HIGH COURT OF THE REPUBLIC OF SINGAPORE

[2020] SGHC 174

Originating Summons No 1178 of 2019

Between

Law Society of Singapore

… Applicant
And

Govindan Balan Nair

… Respondent

GROUNDS OF DECISION

[Legal Profession] — [Disciplinary proceedings] — [Conflict of interest] —

[Adverse interest]
[Legal Profession] — [Professional conduct] — [Breach]

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 This judgment is subject to final editorial corrections approved by the
court and/or redaction pursuant to the publisher’s duty in compliance
with the law, for publication in LawNet and/or the Singapore Law
Reports.

Law Society of Singapore

v
Govindan Balan Nair

[2020] SGHC 174

High Court — Originating Summons No 1178 of 2019

Valerie Thean J
8, 27 July 2020

19 August 2020

Valerie Thean J:

1 Where a legal practitioner is aware that he has been negligent in his duty
toward his client in allowing default judgment to be entered against his client,
does he have a duty, when queried by his client and if the default judgment is
irregular, to inform his client of the circumstances of his omission, prior to
seeking his client’s consent for the next step in the future conduct of the matter?
The Disciplinary Tribunal (“DT”) answered this question in the negative in
DT/08/2018. Two charges, brought by the Law Society of Singapore (“Law
Society”) against Mr Govindan Balan Nair (“the respondent”) premised on
r 22(3)(a) of the Legal Profession (Professional Conduct) Rules 2015
(S 706/2015) (“LPPR”), formed its context. The Law Society, being of the
opposite view, applied under s 97 of the Legal Profession Act (Cap 161, 2009
Rev Ed) (“LPA”) to review the DT’s decision. Rule 22 of the LPPR, which

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

formed the focus of the application, concerns situations of conflict or potential

conflict of interests between the interests of a legal practitioner and his client.

Background

2 The complaint against the respondent had been lodged with the Law
Society by the sole director of MSK Building Services Pte Ltd (“MSK”) (“the
complainant”). The facts, as found by the DT, upon which the conflict of interest
was said to have arisen, are briefly these. The respondent had acted for MSK in
a dispute with JKC Consultant (“JKC”), MSK’s sub-contractor on a building
project. JKC had served a writ and statement of claim on MSK on or around 2
August 2017 to claim the value of electrical works they had performed. The
complainant had initially approached Mr Gurdaib Singh. The two men agreed
that Mr Singh would find another lawyer to deal with the matter. Mr Singh then
approached the respondent who agreed to do so, and the respondent filed a
memorandum of appearance on behalf of MSK on 10 August 2017. By this
point, the retainer relationship would have commenced between the respondent
and MSK.

3 The respondent met his client for the first time on the day MSK’s
defence was due. This was on 24 August 2017. At the meeting, he failed to
appraise his client of the deadline although he was himself aware of it.1 The
respondent also advised the complainant that MSK had a good defence and
counterclaim. Terms of engagement and a warrant to act were signed on this
occasion. The respondent, who had been provided the necessary documents,

1 ROP Vol III pp 196 – 197 – NE 2 May 2019 p 155 line 22 – p 156 line 10,
ROP Vol II p 11 – Mr Srivathsan’s Affidavit dated 26th April 2019 at [23]

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

was told to file the Defence. On his part, the respondent asked the complainant
to check if he had other documents for the counterclaim. On 25 August 2017,
the complainant sent an email stating that he could not find the documents for
the counterclaim, and gave instructions for the Defence to be filed without the
counterclaim. The Defence was not filed, and enquiries from the client went
unattended.2

4 Default judgment was entered against MSK on 31 August 2017.3

Although notice of the default judgment was served on the respondent on 31
August 2017,4 he was unaware of it. When the complainant went to the
respondent’s office unannounced on 5 September 2017 to check on the matter,
the complainant was assured that a Defence would be filed in due course.
Concerned that the respondent had not responded to any of his reminders, the
complainant went to the State Courts on 18 September 2017 to check on the
status of the suit.5 There, he discovered that default judgment had been entered
against MSK.6 He confronted the respondent at his office on the same day,
seeking an explanation for these developments. On this occasion, the respondent
sought to persuade the complainant to file an affidavit stating that the Defence
was filed late due to MSK’s delay in providing details to its lawyers. The
complainant refused because he had given instructions timeously and had
specifically instructed the respondent to file the Defence earlier. Meeting the

2 ROP Vol I p 342 – 25 August 2017 Email “Re: Document for your reference”, ROP
Vol II p 12 – SRIV 26 APR at [26]
3 ROP Vol I p 448 – O 19 Default Judgment
4 ROP Vol I p 450 – Certificate of Service
5 ROP Vol II p 13 - SRIV 26 APR at [29]
6 Mr Govindan’s Affidavit dated 14 November 2019p 4 at [18]

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

complainant again on 21 September 2017, the respondent again did not explain
how default judgment had been entered. This was despite the complainant’s
repeated request for an explanation of the same. Instead, pointing to the
purported procedural defects in the default judgment, the respondent obtained
the complainant’s signed consent on a letter to JKC’s solicitors. The letter
communicated that the respondent had instructions to set aside the default
judgment (on the basis of those procedural defects) and sought JKC’s
indulgence for MSK to file its Defence and Counterclaim in the suit.7

5 By a letter of 4 October 2017, the respondent requested instructions from

the complainant to continue the suit.8 The complainant replied on the same day
asking for an explanation in respect of the default judgment.9 Again when the
respondent replied, he did not answer the questions but informed that he had
drafted a simple affidavit to set aside the default judgment and that the Defence
and Counterclaim were ready to be filed subject to a few clarifications.10 The
complainant did not respond to this letter: instead, he lodged a complaint with
the Law Society against the respondent on 16 October 2017.11 Eventually the
respondent informed the complainant on 24 October 2017 that he would
discharge himself12 and rendered his invoice for work done in the suit.13

7 Mr Govindan’s Affidavit dated 14 November 2019, p 37

8 ROP Vol I p 359
9 ROP Vol I p 360
10 ROP Vol I p 364
11 ROP Vol I p 365
12 ROP Vol I p 375
13 ROP Vol I p 376

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

6 The primary charge against the respondent read as follows:

1st CHARGE
You, GOVINDAN BALAN NAIR … are charged that whilst acting
for MSK Building Services Pte Ltd in respect of DC Suit No.
1180 of 2017, you:

(a) failed to withdraw in a timeous manner from representing

MSK Building Services Pte Ltd, when you had an adverse
interest to that of your client, upon discovering that your client
had a potential claim against you by reason of your failure to
file your client’s defence in DC Suit No. 1180 of 2017 and
occasioning in default judgment being entered against them in
the Suit, and you had an interest not to admit to any negligence
on your part with respect to the non-filing of your client’s
defence; and

(b) continued to act for your client, MSK Building Services Pte
Ltd, when you had an adverse interest to that of your client, in
the circumstances as aforesaid, without first:

(i) making a full and frank disclosure of the adverse

interest to the client;

(ii) advising the client to obtain independent legal advice

or ensuring that the client is not under an impression
that you were protecting the client's interests; or

(iii) obtaining from MSK Building Services Pte Ltd its

informed consent in writing to continue acting for them
consequently,

and you are thereby guilty of a breach of Rule 22(3)(a) of the

Legal Profession (Professional Conduct) Rules 2015 amounting
to improper conduct or practice as an advocate and solicitor
within the meaning of Section 83(2)(b)(i) of the Legal Profession
Act (Chapter 161).14

The alternative charge was worded in exactly the same manner, save that it
alleged that the same actions amounted to “misconduct unbefitting an advocate

14 ROP Vol I p 10 – Statement of Case; 1st Charge

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

and solicitor as an officer of the Supreme Court of Singapore or as a member of

an honourable profession within the meaning of Section 83(2)(h) of the Legal
Profession Act (Chapter 161)”.15

7 The gravamen of Law Society’s charges against the respondent was that
upon finding out about the default judgment, the respondent did not follow the
procedure set out in r 22(3)(a) of the LPPR. Instead, the respondent evaded the
complainant’s questions as to why judgment in default had been entered and
simply assured the complainant that the default judgment could be set aside.16
He continued to act for MSK, and on 21 September 2017, procured written
consent from the complainant to send a letter to JKC’s solicitors to inform that
he had instructions to set aside the default judgment and was seeking JKC’s
indulgence for MSK to file its Defence and Counterclaim in the suit.17 Before
the DT, the respondent relied on this written consent to raise a defence of
waiver.18

8 The DT rejected the respondent’s defence on waiver19 but found that no

adverse interest arose between MSK and the respondent by virtue only of the
default judgment that had been obtained by JKC against MSK.20 There was
therefore no contravention of r 22 of the LPPR and both the charge and the
alternative charge were not made out. The DT, however, did indicate that it was

15 ROP Vol I p 11 – Statement of Case; 1st Alternative Charge

16 ROP Vol II p 14 - SRIV 26 APR p 11 at [31a]
17 Mr Govindan’s Affidavit dated 14 November 2019 at p 37
18 ROP Vol I p 596 – Respondent’s Written Submissions DT 8/2018 p 23 at [40]
19 ROP Vol IV p 14 – Report of the Disciplinary Tribunal at [24]
20 ROP Vol IV p 15 – Report of the Disciplinary Tribunal at [26]

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

prepared to find that there had been a negligent omission on the respondent’s
part.21 It then administered a reprimand on the respondent for conduct which
had fallen short of the standards of professionalism expected of an advocate and
solicitor.22 The reprimand, however, was not based on or made in reference to
any of the charges raised. The DT also ordered that the respondent pay the Law
Society’s costs of $8,000.

9 The Law Society sought to invoke both the appellate and supervisory
jurisdiction of the High Court under s 97 of the LPA. On the charges brought,
the Law Society asked that I substitute the decision of the DT with a conviction
on one of the charges premised on r 22(3) of the LPPR, and to substitute the
DT’s recommendation to the Council of a reprimand for that of a fine under
$20,000. In the alternative, the Law Society asked that if I disagreed with them
on the substantive merits regarding r 22(3) of the LPPR, to set aside that part of
the decision ordering a reprimand to the solicitor and to remit the matter to the
DT on an amended charge premised on r 5 of the LPPR regarding the negligent
omission found by the DT.23

10 I deal first with the procedural issue of the reprimand, before turning to
the substantive merits of the DT’s decision.

21 ROP Vol IV p 15 – Report of the Disciplinary Tribunal at [27]

22 ROP Vol IV p 17 – Report of the Disciplinary Tribunal at [35]
23 Law Society’s Submissions dated 19 February 2020 at [4a]

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

Procedural impropriety

11 The DT’s reprimand was not based on either of the two charges for
which the respondent was investigated. This constituted a breach of natural
justice. The DT ought to have requested the Council of the Law Society to prefer
amended or additional charges, and thereafter ascertained if the respondent or
the Law Society required any relevant evidence to be brought before it, before
coming to a conclusion as to the penalty to be meted out. The failure to do so
was a procedural defect.

12 For completeness, while the DT appears to have reprimanded the

respondent at paragraph 35 of its determination, I should mention that the
scheme of the LPA envisages that it is for the Council of the Law Society to
administer any fine or reprimand under s 94(3) of the LPA or order remedial
measures under s 94(3A) of the LPA. The DT’s role, as a fact-finding tribunal,
is to determine whether the practitioner should be reprimanded: see s
93(1)(b)(ii) of the LPA.

Analysis of DT’s decision on r 22(3) of the LPPR

13 Turning to the substantive issue under review, this was whether the
present situation involved a breach of r 5 or r 22 of the LPPR. The DT’s decision
assumed a breach of r 5 and not r 22. If I agreed with the DT on their
interpretation of the two rules, the proper course would have been to set aside
the reprimand, and remit the matter to the DT for the charge to be amended and
due process to thereafter follow. I was of the view, however, that r 22 applied,
for reasons explained below.

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

Scope of r 22(3)

14 Rule 22(3) of the LPPR reads as follows:

Conflict, or potential conflict, between interests of client

and interests of legal practitioner or law practice, in general
22.—
…
(3) Where a legal practitioner, any immediate family member of
the legal practitioner, or the law practice in which the legal
practitioner practises has an interest in any matter entrusted
to the legal practitioner by a client of the legal practitioner —
(a) in any case where the interest is adverse to the
client’s interests, the legal practitioner must withdraw
from representing the client, unless —
(i) the legal practitioner makes a full and frank
disclosure of the adverse interest to the client;
(ii) the legal practitioner advises the client to
obtain independent legal advice;
(iii) if the client does not obtain independent legal
advice, the legal practitioner ensures that the
client is not under an impression that the legal
practitioner is protecting the client’s interests;
and
(iv) despite sub‑paragraphs (i) and (ii), the client
gives the client’s informed consent in writing to
the legal practitioner acting, or continuing to act,
on the client’s behalf; or
(b) in any other case, the legal practitioner must
withdraw from representing the client, unless —
(i) the legal practitioner makes a full and frank
disclosure of the interest to the client; and
(ii) despite sub‑paragraph (i), the client gives the
client’s informed consent in writing to the legal
practitioner acting, or continuing to act, on the
client’s behalf.

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

15 Rule 22(3)(a) of the LPPR is predicated on a legal practitioner

possessing an interest in the matter which is “adverse” to the client’s interest.
The Law Society argued that in the present case, once it was discovered that
default judgment had been entered, there were three issues that compromised
the respondent’s ability to advance his client’s best interest. First, the client
could take up disciplinary proceedings against him. A default judgment is a
serious matter. The DT at paras 18 and 27 of their Report24 and by their decision,
accepted that the respondent’s actions, in allowing judgment in default to be
entered, amounted to breach of r 5 of the LPPR. Second, a civil suit in
negligence was a possibility. During the DT hearing, the respondent admitted
in cross-examination that he had been negligent in allowing the default
judgment to be entered.25 That said, the respondent pointed out that no harm had
been occasioned because the judgment was irregular and could have been set
aside as of right.26 This did not take his case very far. He still had an interest in
avoiding any allegation of negligence. Further, the rule that an irregular
judgment may be set aside as of right simply means that a court in setting it
aside will not go into the actual merits of the defence; the courts would,
however, continue to scrutinize the surrounding circumstances in the exercise
of its discretion in deciding whether to depart from or adhere to the rule (see
Mercurine Pte Ltd v Canberra Development Pte Ltd [2008] 4 SLR(R)
907(“Mercurine”) at [73] and [76]). Finally, there were potential cost
implications arising from having to set any default judgment aside, even an
irregular one. The client would bear those costs if the lawyer did not.

24 ROP Vol IV p 9 and 15

25 ROP Vol III p 205; ROP Vol I p 525 – Law Society’s Written Submissions DT 8/2018
[78] – [90]; pp 33 - 45
26 Respondent’s Written Submissions dated 1 July 2020 at [38]

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16 The issue in this case is whether these reasons were sufficient to found
an interest “adverse” to the client. Professor Pinsler suggests in his commentary
on the LPPR that the word would include any interest that could “actually or
potentially compromise his duty to advance the client’s best interest in any way
and to whatever extent”: Jeffrey Pinsler, Legal Professional (Professional
Conduct) Rules 2015:A Commentary (Academy Publishing, 2016) at para
22.011. In considering this, I looked, first, to the ordinary meaning of the word
“adverse”. In its natural meaning, “adverse” simply reflects any situation that
would give rise to any disadvantage to the client. This interpretation is
consistent with that offered by the Law Society. Obiter views from two cases
support this interpretation. In Law Society of Singapore v Khushvinder Singh
Chopra [1998] 3 SLR(R) 490 (“Khushvinder Singh Chopra”), Yong Pung How
CJ, delivering the opinion of the court, ruled that the solicitor’s “questionable
conduct in procuring the statutory declaration for the [purpose] of averting […]
apprehended disciplinary proceedings” placed him in “a position of aggravated
conflict of interest”: Khushvinder Singh Chopra at [67]. Similar sentiments can
be found in Law Society of Singapore v Chung Ting Fai [2006] 4 SLR(R) 587
(“Chung Ting Fai”), where the High Court found that an attempt to “pre-empt
legal proceedings” (though not proven on the facts of that case) would have
been similarly objectionable: Chung Ting Fai at [50]. In these cases, legal or
disciplinary proceedings had not yet been brought against the legal practitioner,
but the remarks made by the courts suggest that an adverse interest could arise
even at that stage, when the risk of such proceedings had arisen.

17 Second, looking to the statutory provision in its context, r 22 of the

LPPR, as a whole, is targeted at both actual and potential conflicts of interest.
This is explained in the r 22(1) principles:

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

Conflict, or potential conflict, between interests of client

and interests of legal practitioner or law practice, in general
22.—(1) The following principles guide the interpretation of this
rule and rules 23, 24 and 25. —
Principles
(a) A legal practitioner owes duties of loyalty and confidentiality to a
client of the legal practitioner, and must act prudently to avoid any
compromise of the lawyer-client relationship between the legal
practitioner and the client by reason of a conflict, or potential conflict,
between the interests of the client and the interests of the legal
practitioner.

18 In furtherance of that broad rationale, the specific duty is articulated in

r 22(2) of the LPPR as follows:

22.—(2) Except as otherwise permitted by this rule, a legal

practitioner or law practice must not act for a client, if there is,
or may reasonably be expected to be, a conflict between —
(a) the duty to serve the best interests of the client; and
(b) the interests of the legal practitioner or law practice.

This reflects that the expectation that the standard expected of the legal
practitioner is to act in the best interests of the client at all times. Conflicts arise
under r 22(2) once his own interests derogate from the pursuit of the best course
for his client. The opening words “[e]xcept as otherwise permitted” make clear
that in such a situation, he must not act for the client save as permitted in r 22(3)
of the LPPR.

19 The object of r 22(3)(a), therefore, should not be considered in isolation,

but within the specific context of the r 22(2) duty to serve the best interests of
the client. It mandates full and frank disclosure to the client wherever a conflict
or potential conflict arises between the duty to serve the best interests of the
client, and the interests of the legal practitioner. The word “adverse” in

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r 22(3)(a) must be read with the text of r 22(2) to include any reason that would
detract a legal practitioner’s duty to serve the best interests of his client.

20 A conflict arose in the present case because, once there was negligence
and a breach of r 5 of the LPPR, the best interests of MSK would have been
served by being informed of the circumstances of the legal practitioner’s
negligence and breach, as well as its rights in that situation. This was the interest
that was adverse to the legal practitioner’s, since giving such information and
advice would expose the legal practitioner to potential liability, disciplinary
action, or simply a decision by the client not to engage that legal practitioner’s
services any longer. In other words, the legal practitioner would have an interest
in keeping these matters from MSK and would thereby have an interest that led
him away from the client’s best interests. Once this adverse interest arose, the
legal practitioner should have first made full and frank disclosure to the client
of the adverse interest; secondly, he ought to have advised the client to obtain
independent legal advice; and thereafter, and only thereafter, should he obtain
the client’s informed consent to continue acting. In absence of this process, the
rule mandates that the practitioner should withdraw from acting timeously, in
effect removing himself from that same relationship where his responsibility
was to act in his client’s best interest.

21 I deal with the DT’s reasons for holding to the contrary. First, the DT
held that the interests of the solicitor and his client were aligned in that both
wanted to set aside the default judgment.27 This fact alone, nevertheless, does

27 ROP Vol IV p 15 – Report of the Disciplinary Tribunal at [27]

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not preclude adverse interests. Alignment on one issue could co-exist with a
lack of alignment on other issues.

22 Second, the DT held that harm must have been caused to the client,
before an adverse interest can arise.28 On a related note, the DT also held the
view that any adverse interest was de minimis since the negligent omission was
reversible.29 In my view, because the rule is concerned with potential as well as
actual adverse interests, there need not be harm caused before it is contravened.
Further, in considering harm in this context, courts consider the impact of the
legal practitioner’s misconduct upon (a) those directly or indirectly affected by
the misconduct; (b) the public; and (c) the reputation of the legal profession: see
Law Society of Singapore v Ezekiel Peter Latimer [2019] 4 SLR 1427 (“Ezekiel
Peter Latimer”) at [55]. The respondent’s failure here to adhere to the standards
imposed by the LPPR had effects on his client, the reputation of the legal
profession and the confidence of the public at large in the profession.

23 Third, the DT was of the view that it would be too onerous for a solicitor
to withdraw in these circumstances: “[i]t would suggest that every time a
solicitor makes a minor error that can be corrected, the solicitor should refrain
from further acting for the client (or withdraw from acting) until or unless the
client has obtained independent legal advice. This is because short of such
independent legal advice, the solicitor cannot be truly certain that his client has
arrived at a fully formed consent for the solicitor to continue.”30 I do not agree.
First, minor errors (if they are truly minor) would generally not occasion a

28 ROP Vol IV p 15 – Report of the Disciplinary Tribunal at [27]

29 ROP Vol IV p 16 – Report of the Disciplinary Tribunal at [28]
30 ROP Vol IV p 16 – Report of the Disciplinary Tribunal at [28]

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conflict of interest. A commonsensical approach must be taken: for example,

there is plainly a distinction between a typographical error and a default
judgment. Second, it is full and frank disclosure that r 22(3) of the LPPR
mandates, and the need for withdrawal only arises on the failure of the legal
practitioner to properly disclose the interests adverse to him. The legal
practitioner is certainly permitted to put any negligence in context, for example,
in this case, he could well have explained that the judgment was irregular and
to undertake not to charge his client for any rectification of a state of affairs
caused by his omission. After he informs the client, under r 22(3)(a)(iii), the
client may choose to seek independent legal advice. Alternatively, the client
may choose not to, provided that the practitioner disabuses the client of any
impression that he is protecting the client’s interests. The choice belongs to the
client, and r 22(3) of the LPPR returns that choice to its rightful place.

Distinction from r 5 of the LPPR

24 I turn to r 5 of the LPPR, which the DT thought more applicable. Rule 5

of the LPPR reads as follows:

Honesty, competence and diligence

5.—(1) The following principles guide the interpretation of this
rule.
Principles
(a) The relationship between a legal practitioner and his or her client
imports a duty to be honest in all dealings with the client.

(b) A legal practitioner must have the requisite knowledge, skill and
experience to provide competent advice and representation to his or
her client.

(c) A legal practitioner has a duty to be diligent in the advice and

information given to his or her client, and in the manner the legal
practitioner represents the client.

(2) A legal practitioner must —

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(a) be honest in all the legal practitioner’s dealings with

his or her client;
(b) when advising the client, inform the client of all
information known to the legal practitioner that may
reasonably affect the interests of the client in the matter,
other than —
(i) any information that the legal practitioner is
precluded, by any overriding duty of
confidentiality, from disclosing to the client; and
(ii) any information that the client has agreed in
writing need not be disclosed to the client;
(c) act with reasonable diligence and competence in the
provision of services to the client;
(d) ensure that the legal practitioner has the relevant
knowledge, skills and attributes required for each
matter undertaken on behalf of the client, and apply the
knowledge, skills and attributes in a manner
appropriate to that matter;
(e) keep the client reasonably informed of the progress
of the client’s matter;
(f) where practicable, promptly respond to the client’ s
communications;
(g) keep appointments with the client;
(h) provide timely advice to the client;
(i) follow all lawful, proper and reasonable instructions
that the client is competent to give;
(j) use all legal means to advance the client’s interests,
to the extent that the legal practitioner may reasonably
be expected to do so; and
(k) keep proper contemporaneous records of all
instructions received from, and all advice rendered to,
the client.
…

25 Rule 5 of the LPPR describes the honesty, competence and diligence

that is expected of a solicitor in the ordinary practice of his craft. In contrast,

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r 22 of the LPPR specifically governs situations when conflicts of interest arise

or could potentially arise.

26 Here, a potential breach of r 5 of the LPPR arose when the respondent

did not contact his client at all until the day the Defence was due to be filed,
failed to inform his client that the Defence was due that very day, failed to abide
by his client’s instructions to prepare the Defence quickly and was entirely
oblivious to the fact that a default judgment had been entered on 31 August
2017. The respondent had admitted in cross-examination his negligence in these
areas.31 The charge concerns r 22 of the LPPR because, in that context, where
there was an undisputed breach of r 5 and negligence, it was then incumbent on
the respondent as a legal practitioner who was well aware of the interests
adverse to his client, to follow the prescription set out in r 22(3) of the LPPR.
He did not. Instead, the respondent procured written consent from the
complainant to set aside the Writ of Summons and the default judgment. While
glossing over that which he needed to disclose, he nonetheless obtained the
client’s written consent for the next course of action. Absent full disclosure, the
consent was not an informed one. Hence, the DT found that there was no waiver.
As Law Society pointed out in its submissions, whereas the object of the signed
consent envisaged by r 22(3) was to protect the client’s interest, the signed
consent obtained in this case served to diminish the client’s interest.

31 ROP Vol I p 525 – Law Society’s Written Submissions DT 8/2018 [78] – [90]; pp 33
- 45

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Finding and sanction

27 Coming to the two charges, the primary charge premised on s 83(2)(b)(i)

of the LPA was engaged once there was a breach of the LPPR; the alternative
charge was framed on the more general provision of s 83(2)(h). As I was of the
view that the respondent had breached LPPR r 22(3), I found the primary charge
made out.

28 Turning to the sanction, I considered whether there was due cause of

sufficient gravity that warranted a referral of the matter to the Court of Three
Judges, and, if not, the appropriate penalty that the Council ought to consider.
The Law Society proposed that the matter could be dealt with by way of a
substantial fine nearer to $20,000, particularly taking into consideration the
respondent’s age of 82 and his ill health.

29 I took reference from the framework of harm and culpability set out by
the Court of Three Judges in Ezekiel Peter Latimer ([22] supra) to determine
the appropriate sanction for charges premised upon conflicts of interest. It was
there said that in cases where a practitioner has preferred his own interests over
that of the client, striking off would be the presumptive penalty because such
situations often reveal an abuse of trust and reflect a serious defect of character.
The specific scenarios elaborated in that judgment, however, involved the
solicitor’s use of his position to pursue financial advantage or substantial gift
(see Ezekiel Peter Latimer at [67]). In this case, while the respondent acted to
the detriment of the client in preferring his own self-protection over his client’s
best interests, there was no planned pursuit of financial gain aside from his
continued representation of the client and the professional fees appurtenant.
Notwithstanding conduct falling short of the expectations of the LPPR, defect

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

of character, dereliction of a legal practitioner’s duty of loyalty and abuse of his

position of trust, it was a less culpable scenario. There was also less harm caused
here than in the cases envisaged in Ezekiel Peter Latimer. In that regard, the DT
characterised the damage as capable of correction.32 Although I have decided at
[22] that this did not mean that there was no adverse interest, this was relevant
to the harm caused. The respondent envisaged being able to rectify the issue for
his client and did eventually do so, albeit furtively, when solicitors for JKC
agreed to withdraw the default judgment.33 Therefore, applying the culpability
and harm matrix in this case, I concluded that the matter was not sufficiently
serious to be referred to the Court of Three Judges. I agreed with the Law
Society’s position on the sanction to be imposed.

Conclusion

30 Accordingly, I set aside the DT’s reprimand. The respondent’s conduct

was in breach of the LPPR and thus I substituted the DT’s determination with a
finding of guilt on the primary charge and determined that the respondent should
be ordered to pay a penalty sufficient and appropriate to the misconduct
committed. The Council, in exercising s 94(3)(a) of the LPA mutatis mutandis
after this review, should have regard to a fine upwards of $15,000 (and below
$20,000) against the respondent.

31 Costs of the proceedings below were ordered to stand. I fixed the costs
of the review at $5,000, inclusive of disbursements.

32 ROP Vol IV p 14 – Report of the Disciplinary Tribunal at [28]

33 ROP Vol I p 431 – Transcript of Govindan’s Discussions with Complainant (dated 21
September 2017); ROP Vol I p 169 – JKC’s Summons Seeking Leave to Amend
Plaintiff’s Name.

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Law Society of Singapore v Govindan Balan Nair [2020] SGHC 174

Valerie Thean
Judge

Eng Zixuan Edmund, Brinden Anandakumar and Danica Gan Fang

Ling and (Fullerton Law Chambers LLC) for the applicant;
Dhanaraj James Selvaraj (James Selvaraj LLC) for the respondent.

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