Unauthorised Practice of Law – What Constitutes Acting or Practising as a Solicitor?

This article analyses the contrasting judicial approaches in recent Singapore and Malaysian decisions on what amounts to acting or practising as a solicitor. The author suggests that although the Singapore framework is sound, certain aspects of its application should be clarified.

Introduction

In Singapore, the unauthorised practice of law is prohibited by section 33 of the Legal Profession Act 1966 (Singapore LPA), which provides for criminal sanctions for various offences that can be committed by persons essentially masquerading as practising lawyers to provide legal services. The regulatory regime is founded on a “negative” definition, which deems all persons whose names are not on the roll of advocates and solicitors and who do not have valid practising certificates as “unauthorised persons”.¹See s 32(2) of the Singapore LPA. As observed in the vintage case of Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd²(1988) 1 SLR(R) 281. (Turner), the “primary object of the [Singapore LPA] is to protect the public from claims to legal services by unauthorised persons”.³Id, at (34).

At its core, the unauthorised practice of law, be it in Singapore, Malaysia, Australia, Canada, England and Wales or the United States, is concerned with one issue: what constitutes the practice of law, or more specifically, what amounts to acting or practising as a solicitor?

Two recent decisions in Singapore and Malaysia respectively have provided guidance on this issue. In June 2021, the Singapore High Court in Choo Cheng Tong Wilfred v Phua Swee Khiang & Anor⁴(2021) SGHC 154. (Wilfred Choo) held that, based on the tests formulated in Turner, “self-styled”⁵Id, at (89). business consultancy services provided by an unauthorised person were in fact legal work. This decision was affirmed by the Appellate Division of the High Court (AD) in February 2022.

In August 2021, the Federal Court of Malaysia issued an important decision, Darshan Singh Khaira v Majlis Peguam Malaysia⁶(2021) 5 MLJ 921. (Darshan Singh), on a similar issue, holding that the giving of advice by an unauthorised person in the context of court proceedings to a client of a law firm amounted to “practising as a lawyer”.

This article examines the contrasting judicial approaches in Wilfred Choo and Darshan Singh on what constitutes acting or practising as a solicitor. The author suggests that although the well-established tests in Turner are sound, certain aspects of their application should be clarified.

Wilfred Choo

In Singapore, various formulations relating to the practice of law are used in the Singapore LPA:

• “does any act in the capacity of an advocate and solicitor (section 25(1));
• “must not practise as an advocate and solicitor or do any act as an advocate and solicitor” (section 32(1));
• “acts as an advocate and solicitor” (section 33(1)(a));
• “duly qualified or authorised to act as an advocate or a solicitor” (section 33(1)(b)); and
• “anything done by an unauthorised person as an advocate or a solicitor” (section 36(1)).

It was this last provision that the Singapore High Court in Wilfred Choo was concerned with. Section 36(1) of the Singapore LPA states in full as follows:

“No costs in respect of anything done by an unauthorised person as an advocate or a solicitor or in respect of any act which is an offence under section 33 are recoverable in any action, suit or matter by any person whomsoever.” [emphasis added]

The plaintiff in this case had intermittently practised as a lawyer and did not have a valid practising certificate between 1 April 2000 and 31 March 2006, and from 1 April 2014 onwards. Between 1 April 2006 and 31 March 2014, the plaintiff had in force a valid practising certificate which was subject to a condition imposed by the Law Society of Singapore that he could not take on any clients during this period. The plaintiff also had a brief stint as a stock dealer in around August 2000 to 2001 or 2002.

The plaintiff claimed that the defendants owed him consultancy fees pursuant to several oral agreements for various “law-related business consultancy services” that he provided to the defendants. These services arose in the context of certain disputes emanating from the defendants’ property investments in Australia. They included matters pertaining to the defendants’ recovery of capital and profits from these investments as well as various ensuing litigation proceedings in Singapore, Australia and the British Virgin Islands.

The defendants contended that the plaintiff, being an unauthorised person at the material times, was not entitled to recover his purported fees for these consultancy services based on section 36(1) of the Singapore LPA.

The High Court began its analysis of the applicable law by noting that the Singapore LPA did not define what amounted to acting as an advocate and solicitor for the purposes of sections 32(1), 33(1) and 36(1). Nevertheless, the High Court noted that Turner, decided in 1988 by Chan Sek Keong JC (as he then was), had established two tests in this regard (which were in addition to the specific acts of an advocate and solicitor listed in sections 33(1) and 33(2)):⁷Supra, n 4 at (79).

1. “[A]n act is an act of an advocate and solicitor when it is customarily (whether by history or tradition) within his exclusive function to provide, eg giving advice on legal rights and obligations, drafting contracts and pleadings and pleading in a court of law.” (referred to as the “first Turner test” in Wilfred Choo)
2. “A person acts as an advocate and/or solicitor if, by reason of his being an advocate and solicitor, he is employed to act as such in any matter connected with his profession.” (referred to as the “second Turner test” in Wilfred Choo)

Applying the two tests, Chan JC had held in Turner that the American law firm which sought to represent one party in arbitration proceedings in Singapore would be acting as advocates and solicitors. The first Turner test was satisfied as the American law firm’s services were “customarily provided by advocates and solicitors of the Supreme Court” and indeed could be said to “constitute the core services of the legal profession”.⁸Supra, n 2 at (21). The second Turner test was also satisfied as the American law firm’s employment in the arbitration proceedings was “in connection with their profession as attorneys” and they were “not being employed to act as experts … or in some other non-legal capacity”.⁹Ibid.

Although sections 32 and 33 of the Singapore LPA were amended following Turner to disapply to arbitration proceedings, the High Court in Wilfred Choo observed that the Turner tests had not been amended in other aspects and were equally applicable to determining whether an act was “done by an unauthorised person as an advocate and solicitor” under section 36(1) of the Singapore LPA. In addition, the High Court accepted that the two Turner tests should be read disjunctively, and not conjunctively.

Closely tracking the reasoning in Turner, the High Court in Wilfred Choo held that both the first and second Turner tests were satisfied, and that the plaintiff had also prepared documents relating to legal proceedings within the scope of section 33(2)(a) of the Singapore LPA:

• The first Turner test had been satisfied as it was clear from the evidence that the plaintiff had given advice on the defendants’ rights and obligations. Giving legal advice was “one of the quintessential services rendered by advocates and solicitors” and, based on the Australian authority of Cornall v Nagle¹⁰(1995) 2 VR 188. (“Cornall”), could “properly be said to lie at or near the very centre of the practice of the law”.¹¹Supra, n 4 at (83). Although the plaintiff contended that he had only provided business consultancy services or legal opinions which the defendants were not obliged to follow, the High Court emphasized the need to “consider the substance and nature of his services rendered to the defendants and not merely the label attached to them”.¹²Id, at (127).
• The second Turner test was also satisfied as there was clear evidence that the defendants had engaged the plaintiff to act as their lawyer and legal adviser in the various matters, rather than in some other non-legal capacity. Importantly, the High Court rejected the plaintiff’s argument that he had played a supplemental role as the defendants ultimately relied on the advice of their instructed solicitors. In the words of Tan Siong Thye J, it was a “wholly illogical and an undesirable outcome” that:

“an unauthorized person could purport to give legal advice and prepare documents relating to legal proceedings, charge exorbitant fees, and yet remain ‘untouched by the regulatory system’ applicable to solicitors with practicing certificates, so long as his final work product is ultimately cleared by a practicing lawyer”.¹³Id, at (108).

On appeal, the plaintiff failed in his application to have his appeal transferred to the Singapore Court of Appeal.¹⁴Choo Cheng Tong Wilfred v Phua Swee Khiang and another (2022) SGCA 8. The English authorities were not cited in the AD’s judgment, but the author’s independent research indicates that the English Court of Appeal in Agassi v Robinson (Inspector of Taxes) No 2 (2006) 1 WLR 2126 at (49) had preferred the narrower formulation in the English High Court decision of Piper Double Glazing Ltd v DC Contracts (1994) 1 WLR 777 at 786, i.e. “the words ‘acting as a solicitor’ are limited to the doing of acts which only a solicitor may perform and/or the doing of acts by a person pretending or holding himself out to be a solicitor. Such acts are not to be confused with the doing of acts of a kind commonly done by solicitors, but which involve no representation that the actor is acting as such.” (emphasis added) Andrew Phang JCA rejected the plaintiff’s contention that Turner should be overruled in light of developments in foreign jurisdictions. Observing that the plaintiff had pitched his case in the higher realm of policy (what the law ought to be), he held that Turner was still good law and that Parliament, and not the courts, should decide on matters of policy.

At the substantive appeal, the plaintiff argued before the AD that “in light of political, economic and social changes in Singapore since Turner”, the High Court should have “adopted a more restrictive approach as set out in more recent English cases”.¹⁵Choo Cheng Tong Wilfred v Phua Swee Khiang and another (2022) SGHC(A) 5 at (5). The AD dismissed this contention on the ground that the plaintiff had ran a different case in the High Court, namely, that all his services were not of a legal nature. It was therefore no longer open to him to contend that most of his services were not of a legal nature. The AD also held that it was “absurd to suggest”¹⁶Id, at (10). that the mere fact that the plaintiff was instructing other solicitors to act for the defendants would mean that he would necessarily not be acting as a solicitor.

Darshan Singh

In the Malaysian Federal Court decision of Darshan Singh, the appellant, an undischarged bankrupt, had been suspended from legal practice. Under section 29(2)(b) of the Malaysian LPA, an undischarged bankrupt is prohibited from practising law without the Bar Council’s consent. While suspended from practice, the appellant, however, had assisted a litigant-in-person in a traffic case in the magistrate’s court in Georgetown and later in proceedings before the High Court and the Court of Appeal. For practising law without a valid practising certificate, the appellant was ordered to be struck off and his appeal came up to the Federal Court.

A three-man bench, including the Chief Judge of Malaya (Azahar Mohamed CJ), unanimously dismissed the appeal. The Federal Court begun its judgment with a few preliminary but significant observations:¹⁷Supra, n 6 at (16)-(17).

1. There was no inherent right to practise law and it is only an advocate and solicitor who is given certain privileges which attach to his profession under the Malaysian LPA.
2. The Malaysian LPA did “not provide any determinative test as to what amounts to practicing as an advocate and solicitor in all other cases”, although it is “instructive as to the types of conduct which are within the exclusive domain of advocates and solicitors”.
3. Although the Malaysia LPA described these functions as the privilege of advocates and solicitors, the implicit rationale of the unauthorised practice of law provisions was “the need to protect the public against persons who, although being without the necessary qualifications and competence of an advocate and solicitor, may purport to provide such services which may clearly be outside their competence to the detriment of unsuspecting members of the public” [emphasis added].

Turning to the substance of the appeal, the Federal Court rejected the appellant’s arguments that practising law “requires a systematic, regular and continuous act” and “isolated acts of advice do not require a practising certificate”.¹⁸Id, at (19). The Federal Court held that “even a single or isolated act can amount to acting as an advocate and solicitor”.¹⁹Id, at (20). The question was not so much whether it was “a single or isolated piece of advice but rather whether the impugned act or acts is what a lawyer usually does in carrying out his functions and duties as an advocate and solicitor”²⁰Ibid. [emphasis added].

Noting the lack of Malaysian precedents in this area, the Federal Court referred to the same Australian decision in Cornall where the Supreme Court of Victoria set out three ways that a person could be said to be practising as a solicitor:²¹Id, at (22).

1. The Re Sanderson²²(1927) VLR 394. test: by doing something that is usually (but not required to be exclusively) done by a solicitor and by doing it in such a way as to justify the reasonable inference that person doing it is a solicitor.
2. By doing something that is positively proscribed by the Act or by rules of court unless done by a duly qualified legal practitioner.
3. By doing something which, in order to adequately protect the public, is required to be done only by those who have the necessary training and expertise in the law (for example, giving of legal advice as part of a course of conduct and for reward).

Citing Cornall (including the extract on the giving of legal advice referred to in Wilfred Choo) and other Australian and American authorities, the Federal Court found that:

• the appellant had satisfied the Re Sanderson test by actively advising the complainant on the procedures applicable in the Court of Appeal and preparing the documents to be filed by the appellant in the Court of Appeal. Such legal advice and document preparation “required the expertise of a legally trained mind”, which “went beyond mechanical or clerical tasks” and which could not be provided by any mere lay person;²³Id, at (26) and (29).
• “a relationship of confidence and trust” had arisen between the parties, which is “an essential of legal practice”.²⁴Id, at (30). This was not a case where the appellant had provided legal advice “causally or informally”, “lacking the necessary setting and status of a solicitor dealing with a client”;²⁵Ibid. and
• Even though the complainant had paid the legal fees to a law firm, M/s Darshan Singh & Co, and not to the appellant, the Federal Court held that “any payment or receipt of fees or reward is not a pre-requisite to a finding that a person has engaged in legal practice”, but the receipt of such fees or reward would make it “more likely that a person may be deemed to have been practicing law”.²⁶Id, at (34). In any case, it was clear that the appellant’s services had been provided for a fee and payment was made to the law firm.

Wilfred Choo and Darshan Singh compared

Although Wilfred Choo and Darshan Singh applied different frameworks in determining what amounted to acting or practising as a solicitor (see the table below), many of the Australian case law principles applied in Darshan Singh were similar to the Singapore High Court’s reasoning in Wilfred Choo.

For example, the reference to a “legally trained mind” in Darshan Singh was echoed in Wilfred Choo where the Singapore High Court found that the plaintiff “had taken an area of law, ascertained the facts of the defendants’ case, told them what the law was, applied the law to their facts, and purported to charge them for this advice”.²⁹Supra, n 4 at (127). Likewise, “a relationship of trust and confidence” had also arisen in Wilfred Choo, given that the defendants had “trusted” the plaintiff’s legal expertise, even describing him as their “chief legal strategist”.³⁰Id, at (100)-(101), (103) and (107).

That said, Darshan Singh has provided a wider comparative lens to assess the application of the Turner tests. The next section discusses three aspects of the Singapore framework that should be clarified.

Clarifying the Application of the Turner Tests

1. Relevance of foreign case law jurisprudence

Given that the Singapore courts have eschewed both the Australian Cornall approach and the more restrictive English approach, has the door closed on foreign case law jurisprudence on the unauthorised practice of law? Wilfred Choo suggests that such authorities may only be relevant if they support the Turner tests. The High Court in Wilfred Choo had cited only a short extract from Cornall on the giving of legal advice. Unlike the Federal Court in Darshan Singh, it did not go further to discuss the Cornall approach or refer to any other foreign case law.

It is submitted that the Singapore courts should be open to considering, at the very least, Canadian authorities on the unauthorised practice of law. A close analysis of Turner indicates the first Turner test was derived primarily from two Canadian authorities, R (Smith) v Mitchell and R v Campbell. In both cases, the High Court in Turner had emphasized that the party alleged to have practised or been acting as a solicitor had given legal advice, besides performing other lawyerly acts. This explains why the High Court in Turner had expressly referred to “giving advice on legal rights and obligations” in the first Turner test.

Current Canadian jurisprudence states the rule from R v Campbell on “acting as a solicitor” as follows:

“… a person who ‘acts as a solicitor’ is one who conducts an action or other legal proceeding on behalf of another, or advises that other person on legal matters, or frames documents intended to have a legal operation, or generally assists that other person in matters affecting his legal position.”³¹See e.g. Law Society of Upper Canada v Boldt (2006) CanLII 9142 (ON SC) at (50). [emphasis added]

Thus, even without relying on Cornall, the rule in R v Campbell would have sufficed to dispose of the point in Wilfred Choo. The rule in R v Campbell has been applied in a number of Canadian cases (decided after Turner) involving issues of unauthorised practice of law in different contexts³² See e.g. Law Society of Upper Canada v Boldt (2006) CanLII 9142 (ON SC); Suzy De Jesus Dos Santos v Law Society of Upper Canada (2009) ONLSHP 7. and is likely to offer a wellspring of jurisprudence which Singapore courts can draw from.

2. Isolated acts

Under the Singapore framework, it appears unclear whether isolated acts of an unauthorised person suffice for acting or practicing as a solicitor. In Turner, Chan JC rejected the argument that the American law firm would not be practising as advocates and solicitors because they were acting in only one arbitration. He highlighted that “the degree and duration” of the American law firm’s participation were relevant factors, noting that it was “a dispute of substantial character which may take a long time to be resolved by arbitration and/or in further proceedings by way of appeal”.³³Supra, n 2 at (25). In effect, this “would not be doing an isolated act but a series of acts over a period of time in respect of an isolated matter”.³⁴Ibid. However, some cause for doubt remains as Chan JC suggested that the outcome could have been different if the firm had only “give[n] legal advice and no more on an isolated occasion”.³⁵Ibid.

This was precisely the issue that came before the Federal Court in Darshan Singh as to whether an isolated act of giving advice could constitute practising law or whether it required a systematic, regular and continuous act. The Federal Court unhesitatingly held that even a single isolated act could amount to acting as an advocate and solicitor. This view is supported by the observation in Cornall that an isolated act should not be regarded as “necessarily significant in every case” as to whether the offender is “acting or practising as a solicitor”.³⁶Supra, n 10.

As this issue was not raised in Wilfred Choo, it remains to be seen whether the Singapore courts will take a more definitive position.

3. Incorporating the “reasonable person” in the second Turner test

In finding that the plaintiff had been engaged by the defendants to do work in his capacity as a solicitor (the second Turner test), the High Court in Wilfred Choo had taken into account the fact that the plaintiff had described himself as an advocate and solicitor on his name card (by the words “Barrister-at-Law” and “Advocate & Solicitor”). The AD, however, disagreed with the High Court that “a natural reading of the name card indicates that ‘Advocate & Solicitor described [the plaintiff’s] occupation at the time”,³⁷Supra, n 15 at (11). given that it had actually referred to his position in the stockbroking company as a “Dealing Director” in capital letters, while the words “Advocate & Solicitor” were not all in capital letters. There was “nothing wrong in including one’s professional qualifications in this manner since the card’s focus was on the stockbroking company”, although the AD ultimately concluded that the card “would have indicated that [the plaintiff] had legal expertise”.³⁸Ibid.

This raises a question as to whether there should be a deeper principle underlying the second Turner test of “capacity”. Both Canadian and Australian authorities take into account, under their analogous tests, the perspective of “a reasonable person”, either: (a) “with knowledge of the material activities” such as the person dealing with the unauthorised person (Australia);³⁹Council of the Law Society of New South Wales v Seymour (1999) NSWCA 117 at (21). or (b) who is led to believe that the unauthorised person “possessed and purported to exercise the skill and learning of a duly-qualified solicitor, whether or not those who dealt with him knew he was a solicitor or not” (Canada).⁴⁰See e.g. R ex rel. Smith v Mitchell (1952) CanLII 76 (ON CA).

It is submitted that a “reasonable person” standard should be incorporated in the second Turner test, as this would shift the inquiry away from subjective intent or visual presentation to a more objective assessment from the consumer’s perspective. Adopting this standard would also be consistent with the public protection rationale behind the prohibition against unauthorised practice of law in Singapore.

Conclusion

Wilfred Choo has affirmed that the Turner tests have stood the test of time. The differing judicial approaches in Wilfred Choo and Darshan Singh have provided an opportunity to re-evaluate certain aspects of the application of the Turner tests. Although no legal framework can exhaustively define lawyerly acts or the practice of law,⁴¹Supra, n 2 at (17). there is scope for improving the application of the Turner tests. Clarifying the jurisprudential and other aspects of the Singapore framework will help reinforce the legal guardrails protecting the public against the unauthorised practice of law.

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