Quote from Martin Schweiger on August 6, 2018, 4:35 am

Your question comes with two aspects.

1. First, is it legally allowable to reply to a letter of demand on behalf of your client?

2. And second, is it wise to reply to a letter of demand on behalf of your client?

3. To answer the first aspect, yes, you can reply to a letter of demand on behalf of your client, and yes, you can negotiate a settlement of the case before it goes to court.

These activities do not fall under the restrictions of S33 Legal Profession Act.

4. These are the matters that can only be done by a lawyer with a valid practitioner certificate (see paras (1) and (2) of S33 Legal Profession Act):

- to act for any party to legal proceedings,
- to sue out any writ, summons or process,
- to commence, carry on, solicit or defend any action, suit or other legal proceeding in the name of any other person, or in his own name, in any of the courts in Singapore,
- to draw or prepare any document or instrument relating to any proceeding in the courts in Singapore,
- to draw or prepare any document or instrument relating to any movable or immovable property,
- to draw or prepare any document or instrument relating to any legal proceeding,
- to take instructions for or to draw or prepare any papers on which to found or oppose a grant of probate,
- to take instructions for or to draw or prepare any papers on which to found or oppose letters of administration,
- on behalf of a claimant or a person alleging himself to have a claim to a legal right, to write, to publish or to send a letter or notice threatening legal proceedings (other than a letter or notice that the matter will be handed to a solicitor for legal proceedings),
- to solicit the right to negotiate, or negotiates in any way for the settlement of, or settles, any claim arising out of personal injury or death founded upon a legal right or otherwise.

5. Please note that the Legal Profession Act does not contain a definition for "legal proceeding", but it is commonly understood that this term refers to an activity that seeks to invoke the power of a court or tribunal or any other public authority in order to enforce a law, including appeals against the decision of a court or tribunal or any other public authority.

Legal proceedings are generally characterized by an orderly process in which participants or their representatives are able to present evidence in support of their claims, and to argue in favor of particular interpretations of the law, after which a judge, jury, or other factfinder makes a determination of the factual and legal issues.
see https://en.wikipedia.org/wiki/Legal_proceeding

6. As a result, replying to a letter of demand on behalf of your client and negotiating a settlement of the case before it goes to court is not captured in S33 Legal Profession Act, so you may do so on behalf of your client.

S33(2)(d) even explicitly allows sending out a letter to an alleged infringer on behalf of your client threatening that the matter will be handed to a solicitor for legal proceedings if he does not comply with your client´s claims.

7. To answer the second aspect of your question: no, it is not wise to reply to a letter of demand on behalf of your client.

From a business point of view, although you may generate some extra-business by engaging in IP litigation, it is wiser to focus on the registration and prosecution aspects of Intellectual Property, and to see lawyers as our clients, whom we support when it comes to a lawsuit.

I have also often had cases that became contentious after I have tried to settle them. It is extremely handy if you can then also handle the case when it goes to court, but you look extremely bad in the eyes of your client if you must tell him then that he needs a lawyer to proceed onwards. Again, you may generate some extra-business by engaging in IP litigation, but it is wiser to focus on the registration and prosecution aspects of Intellectual Property, and to see lawyers as our clients, whom we support when it comes to a lawsuit.

I have also seen cases where the claimant's lawyer starts a discussion about whether or not you non-lawyer are allowed to represent your client in the negotiations for settling the case. This is not necessary and it will weaken your own ability to play hardball with the claimant: yes, in the case of an alleged trademark infringement you must fight back. Never accept the position that your client is a trademark infringer, and there is never a clear-cut case where there is no room for negotiations at all.

I have also seen cases that went to court after failed pre-trial negotiations, done by a non-lawyer. The lawyer who handles the court proceedings will usually disagree with the strategy used during the pre-trial negotiations. While that is normal because this is in the nature of anyone in the legal industry, that can destroy the good relationship between the client and yourself.

Engaging a lawyer for such pre-trial negotiations is always useful and worth the extra money paid, and even if it is only for applying the four-eyes-principle to increase quality of the outcome.