The Court of Three Judges (COTJ) on Friday (20 November) ordered the suspension of senior lawyer Lee Suet Fern from legal practice for 15 months.
The court issued its judgement today in relation to the alleged conflict of interest present in her involvement with founding prime minister and her father-in-law Lee Kuan Yew’s last will on 17 December 2013.
The COTJ, which is Singapore’s apex disciplinary body in dealing with lawyers’ misconduct, consists of Chief Justice Sundaresh Menon, Judge of Appeal Judith Prakash and Justice Woo Bih Li.
Lawyers for the Law Society of Singapore earlier argued for the disbarment of Mrs Lee over her involvement in the preparation and execution of LKY’s final will despite knowing that her husband Lee Hsien Yang stood to benefit from it.
The charges of misconduct were brought against Mrs Lee by the Society, following a complaint filed by the Attorney-General’s Chambers (AGC) to the Society on 4 December 2018.
As the complaint came from the AGC, the Society is by law mandated to apply to the Chief Justice to appoint a Disciplinary Tribunal (DT).
The DT conducted a five-day hearing from 1 to 5 July this year and subsequently found Mrs Lee guilty of the charges made against her.
In their judgement, the judges wrote that they differed from certain findings made by the DT.
The DT found that there was an implied retainer between Mrs Lee and LKY based on several reasons.
The reasons included–but were not limited to–Mrs Lee purportedly adopting LHY’s statement to a Ministerial Committee that she had taken instructions from LKY on the final will’s preparation and execution, removing LKY’s regular lawyer Kwa Kim Li from correspondences regarding the last will, and allowing LKY to execute his final will based on the belief that she had been primarily responsible for drafting it.
However, the COTJ observed that Mrs Lee did not receive instructions or directions directly from LKY.
Contrary to the DT’s findings, the COTJ also did not find that an implied retainer existed between Mrs Lee and LKY.
The COTJ, however, agreed with the DT’s finding that she has engaged in gross improper professional conduct that was “unbefitting an advocate and solicitor”.
Among the reasons given by the court were that Mrs Lee had allowed LKY to proceed with the execution of his final will despite not having verified his instructions personally and not advising him that she was in no position to make those representations.
Her husband being “a significant beneficiary” under LKY’s final will also “compounded” her actions in the handling of the said will, said the court.
In handing down the suspension, the COTJ said that it considered the harm caused in this case to be “at the lower end of the moderate range”.
While the court reasoned that the actual harm rests in the final will not being the document that LKY had indicated he wished to sign–namely the first will, which was broadly similar to the final one–the COTJ also considered that Mr LKY was “content” with the final will after he signed it.
“He lived for more than a year after executing it and did not revisit it, apart from providing for the bequest of two carpets to Mr LHY in the Codicil,” said the COTJ.
A ‘codicil’ is a formally executed document made after a will that adds to, subtracts from, or changes the will.
The COTJ also found that while the DT ruled that all the charges against Mrs Lee had been proved beyond a reasonable doubt, the tribunal “did not in fact seem to have considered Charges 1A and 2A”.
Charge 1A related to Mrs Lee’s alleged failure to advance her client‘s interest independently of her personal interest and/or that of her husband LHY, while Charge 2A pertained to acting in connection with the “significant gift” that LKY intended to give to LHY, namely a one-third share in LKY’s estate.
The COTJ, in acquitting Mrs Lee of the two aforementioned charges, said that the Law Society is “unable to establish” that she had breached Rules 25(a), 25(b) and 46(d) of the Legal Profession (Professional Conduct) Rules (PCR), due to an absence of a solicitor-client relationship between Mrs Lee and LKY.
Rules 25(a) and 25(b) pertain to when a solicitor prefers her own interest and/or another person’s interest to that of the client, while Rule 46(d) relates to a solicitor’s decision to act for the client in respect of a significant gift to a family member of the solicitor and does not advise the client to seek independent advice in respect of that gift.
“As we have found that no solicitor-client relationship arose between the Respondent and the Testator on the present facts, the Law Society is unable to establish that rr 25 and 46 of the PCR, which form the gravamen of Charges 1, 1A, 2 and 2A, have been breached,” the COTJ reasoned.
The court took on the view that LKY did not consider Mrs Lee as his solicitor for the preparation and execution of his final will.
Thus, the “presumptive penalty” of having Mrs Lee struck off the rolls “would be disproportionate”, notwithstanding the “otherwise clear conflict” between her husband’s interest as a beneficiary of LKY’s final will, her own interest and LKY’s own interest.
The COTJ drew parallels between the degree of culpability in Mrs Lee’s case and that in Law Society of Singapore v Ahmad Khalis bin Abdul Ghani, where the solicitor–who was found not to have acted dishonestly–had “knowingly preferred the interests of one client despite the clear conflict between that client’s interests and the interests of his other clients”.
Unlike in Ahmad Khalis, however, Mrs Lee in this case was “ultimately not in a solicitor-client relationship” with LKY. Another key difference is that LKY was, said the COTJ, “not an unsophisticated client” unlike the remaining surviving beneficiaries in Ahmad Khalis who had trusted the solicitor in the case for legal advice as they were not familiar with the relevant law.
“This, however, is countered by the grave nature of the potential conflict of interest that the Respondent was faced with, which, because it concerned her husband’s interest, is treated as akin to a situation where the solicitor’s own interest is engaged,” the court added.
“In all the circumstances, having regard to the moderate degree of culpability and harm in this case … we consider that a period of suspension of 15 months is appropriate,” the COTJ ruled.
Lee Suet Fern disagrees with judgement
In a statement to the media, Mrs Lee said that she disagrees with the court’s decision.
She noted that there was no basis for this case to have even been initiated, as it was a private will.
“Lee Kuan Yew knew what he wanted. He got what he wanted. The COTJ did not find that he was of unsound mind or that he was not in control.
“He made the decision to revert to his landmark 2011 will following discussions with his lawyer Kwa Kim Li before I was tasked to find a witness. Anyone can revoke their own will while they are alive,” said Mrs Lee.
She argued that if the will was not what LKY wanted, he could easily have made another, as he had done several times before. The COTJ also found that Lee Kuan Yew was “content” with this will.
“No complaint had ever been lodged by my father-in-law, Lee Kuan Yew, nor by any of his beneficiaries or his personal lawyer for his various wills, Kwa Kim Li,” she stressed.
Mrs Lee pointed out that the case arose from a complaint years later by the AGC.
While her brother-in-law Lee Hsien Loong made extensive submissions, he did not present himself as a witness and was not subject to cross-examination, she said.
The COTJ also found “no solicitor-client relationship existed” between Lee Kuan Yew and Mrs Lee and did not find dishonesty, fraud or undue influence.
Mrs Lee also said that probate for LKY’s will had been granted by the courts in 2015.
Probate was also sought on the urging of PM Lee and his lawyer Lucien Wong before the latter became Attorney-General, she added.
The decision by the COJT cannot be appealed.
From 20 August 2011 to 17 December 2013, LKY made a total of seven Wills.
By operation of law, each new Will superceded the previous Will. Lee Kuan Yew signed the Last Will on 17 December 2013.
Two lawyers came to LKY’s house to witness his execution of the Last Will.
On 2 January 2014, LKY on his own prepared and signed a Codicil to his Last Will. He arranged his own witnesses. The Codicil bequeathed two carpets to LHY.
LKY passed away on 23 March 2015. Probate was granted on the basis of the Last Will on 6 October 2015.