Council of the Law Society of New South Wales v Renfrew

NCAT Occupational|2019-03-28

(2) the respondent is prohibited from engaging in legal practice except as an employed solicitor supervised by a solicitor with an unrestricted practising certificate;

(3) the respondent must not apply for, or be issued with, a practising certificate authorising her to engage in legal practice other than as an employee of a legal practice, corporation or government authority;

(4) the respondent must undergo courses of education as follows:

(5) the respondent is to pay the applicant's costs as agreed or assessed. Catchwords: Legal Practitioner - Wills and Probate - swearing an affidavit knowing or ought to have known to be false - serving an affidavit knowing or ought to have known to be false - misleading the Supreme Court - professional misconduct - whether recommending removal from Roll an appropriate order - whether practitioner probably permanently unfit to practise - reprimand - costs Legislation Cited: Civil and Administrative Tribunal Act 2013 Legal Profession Act 2004 (NSW) Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 Legal Profession Uniform Law (NSW) Probate and Administration Act 1898 (NSW) Cases Cited: A Solicitor v Law Society of New South Wales [2004] HCA 1; [2004] 216 CLR 253 Allinson v General Council of Medical Education and Registration [1894] 1QB750 Bechara v Legal Services Commissioner [2010] NSWCA 369 Bolster v Law Society of New South Wales (Unreported Court of Appeal, 20 September 1982 (BC8211696)) Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83 Dupal v Law Society of New South Wales [1990] NSWCA 56 Law Society of New South Wales v Bannister (1993) 4 LPDR 24 Law Society of New South Wales v Carvan (Unreported Court of Appeal, 14 May 1981 (BC8111397)) Law Society of New South Wales v Mayo [2014] NSWCATOD 134 Law Society of New South Wales v Osman [2018] NSWCATOD 75 Law Society of New South Wales v Walsh [1997] NSWCA18 Laybutt v Amoco Australia Pty Ltd (1974)132 CLR 57 Marshall v DG Sugdin & Co Ltd and Anor (1989) 16 NSWLR 463 New South Wales Bar Association v Cummins [2001] NSWCA 284 New South Wales Bar Association v Maddocks (Unreported Court of Appeal, 23 August 1988) Prothonotary v Del Castillo [2001] NSWCA 75 Texts Cited: Nil Category: Principal judgment Parties: Law Society of New South Wales (applicant) Louise Trudence Renfrew (respondent) Representation: Counsel:

G Johnson (applicant) J Dooley (respondent)

Law Society of New South Wales (A-M Foord) (applicant) B Walters (respondent) File Number(s): 2018/234668 Publication restriction: Nil

REASONS FOR DECISION What is this matter about?

Ms Louise Trudence Renfrew is an Australian legal practitioner who studied law from 1996 to 2000 after retiring from teaching. She was admitted to practice in New South Wales on 14 December 2001 and she presently holds a NSW practising certificate. From 2002 to 2004 Ms Renfrew worked as an employed solicitor. In 2004 she commenced practice on her own behalf as the firm of Renfrew Solicitors based in Newcastle, New South Wales. From 7 April 2006 to 9 August 2015 she was the sole principal of Renfrew Solicitors. From 11 August 2015 to present she has been the sole partner of that law practice.
It is uncontested and conceded by Ms Renfrew that in the course of acting for one of her clients, Mrs Kathleen Chambers, she committed substantial breaches of her professional duties and misled the Supreme Court of New South Wales. Ms Renfrew also concedes that she provided a response to a fellow practitioner that was intentionally misleading.
Based on that conduct together with an additional complaint of transferring trust money without prior direction or authority, the Council of the Law Society of New South Wales seeks that the Tribunal recommends Ms Renfrew's name be removed from the Roll of solicitors.
Although Ms Renfrew admits that she grossly failed her professional duties in the series of events the subject of the application made by the Law Society, she argues that it is not appropriate to recommend removal unless the Tribunal is persuaded of her "probable permanent unfitness" for practice, which she denies.
Ms Renfrew admits her conduct amounted to professional misconduct. The principal focus of the proceedings has therefore been the appropriate disciplinary order or orders.
Having regard to all the evidence, we have decided that an order recommending removal from the Roll would be too severe a sanction in the particular circumstances of this case for the reasons which follow. Our conclusion is that the appropriate primary orders are a reprimand and supervisory order along with orders for further education as outlined in this decision.

Application

These proceedings were commenced on 31 July 2018 when the applicant filed an Application for Disciplinary Findings and Orders dated 27 July 2018. We refer to the parties as the applicant (referring to the Council of the Law Society of New South Wales) and the respondent (referring to the solicitor, Ms Renfrew).
The applicant alleges that the respondent is guilty of professional misconduct on four grounds:

Ground 1 1. breaching s.255 of the Legal Profession Act 2004 (LPA) by failing to disburse trust money only in accordance with a direction given by the person on whose behalf the trust money was received;

Ground 2 1. preparing and witnessing the affidavit of Ms Pamela Yelland dated 15 July 2016, paragraph 3 of which affidavit the respondent knew, or ought to have known, was false;

Ground 3 1. attempting to mislead the Supreme Court of New South Wales by filing, or causing to be filed with the Supreme Court: 1. an application for a grant of probate of Mrs Kathleen Mary Chambers' Will dated 5 May 2010, which Will the respondent knew, or ought to have known, was false; and 2. the affidavit of Ms Pam Yelland dated 15 July 2016, paragraph 3 of which affidavit the respondent knew, or ought to have known, was false.

Ground 4 1. attempting to mislead Mr Robert Brook, a solicitor acting for Ms Kathleen Marie Spruce, the beneficiary of Mrs Chambers' estate, by letter dated 10 November 2016.

The applicant seeks the following orders: 1. an order recommending that the respondent's name be removed from the Roll of solicitors; 2. the respondent pay the costs of the applicant as agreed or assessed; 3. such other order as the Tribunal deems fit. Respondent's Reply
The respondent filed a Reply to Application for Disciplinary Findings (dated 18 September 2018) on 19 September 2018. The substance of the Reply is as follows: Ground 1 1. The respondent admits that she transferred from her firm's trust account the amounts alleged to have been transferred but denies she breached s 255 LPA as she says that for each transfer an oral authority was given to her office regarding the proposed transfers. Ground 2 1. The respondent admits that she witnessed the affidavit sworn by Ms Yelland but denies that she prepared the affidavit and says that the affidavit was prepared by Ms Carlene Bond. The respondent denies that she knew that paragraph 3 of the affidavit was false but admits that she ought to have known that paragraph 3 of the affidavit was false. The respondent admits that she knew that the Will with the two signatures was false. Ground 3 1. The respondent admits that she knew the application for the Grant of Probate was false and says that she made an egregious error of judgment in filing the application for the Grant of Probate. Ground 4 1. The respondent admits that in her letter of 10 November she attempted to mislead Mr Brooks and says she made an egregious error of judgment in sending the letter.
The respondent opposes order (1) sought by the applicant (as outlined in paragraph 9 above) and in lieu of the orders sought by the applicant seeks that the Tribunal make orders that: 1. the respondent be publicly reprimanded 2. the respondent pay a fine to be determined by the Tribunal 3. the respondent attend ethics courses in a manner determined by the Tribunal 4. the respondent have a restricted practising certificate and work under supervision of a solicitor with an unrestricted practising certificate for such period as the Tribunal considers appropriate 5. the respondent pay the costs of the applicant as agreed or assessed, and 6. such further or other orders as the Tribunal deems fit.
Following some discussion towards the end of the hearing, and on the basis that the Tribunal may conclude that recommending removal from the Roll was not the appropriate sanction, at the Tribunal's request, the applicant, in consultation with the respondent's representatives, provided a draft form of suggested wording for an order that the respondent practise under supervision and for a further order that she undertake further education in legal ethics, wills and probate and trust accounting. Applicant's Evidence
The applicant tendered without objection and the we admitted into evidence the following affidavits on which the applicant relies: 1. Affidavit of Anne-Marie Foord dated 27 July 2018 (together with Exhibit AMF 1) - Exhibit A-1 2. Affidavit of Anne-Marie Foord dated 2 October 2018 - Exhibit A-2 3. Affidavit of Anne-Marie Foord dated 22 October 2018 - Exhibit A-3 4. Affidavit of James Sofiak dated 3 July 2018 - Exhibit A-4 5. Affidavit of James Sofiak dated 14 February 2019 - Exhibit A-5
The deponents of the affidavits were not required for cross-examination.
The applicant also relies on written submissions which had been filed and to which the respondent did not object. Those submissions were supplemented by oral submissions at the hearing. Respondent's Evidence
The respondent tendered without objection and we admitted into evidence the following affidavits on which the respondent relies: 1. Affidavit of Louise Trudence Renfrew dated 3 December 2018 - Exhibit R-1 2. Affidavit of Anne Kinnear dated 4 December 2018 - Exhibit R-2 3. Affidavit of Terence John Bates dated 6 December 2018 - Exhibit R-3 4. Affidavit of Mark Bede Brady dated 7 December 2018 - Exhibit R-4 5. Affidavit of Dr Alan Boyd dated 11 December 2018 - Exhibit R-5 6. Affidavit of Pam Yelland dated 18 December 2018 - Exhibit R-6 7. Affidavit of Lea Karen Smith dated 19 December 2018 - Exhibit R-7 8. Affidavit of Dr Jon Kochanski dated 19 December 2018 - Exhibit R-8
The deponents of Exhibits R-2, R-3, R-4, R-5, R-7 and R-8 were not required for cross-examination. The respondent and Ms Yelland were required for cross-examination and were cross-examined by Mr Johnson on aspects of their affidavits. They were also questioned by the Tribunal.
The respondent also relies on written submissions which had been filed and to which the applicant did not object. These submissions were supplemented by oral submissions at the hearing. Jurisdiction
It is not disputed that these proceedings are governed by the Legal Profession Uniform Law (NSW) (Uniform Law). The relevant provisions of the Uniform Law authorise us to make orders of the kind sought in these proceedings (ss 302 and 303). The complaint that caused the applicant to instigate its investigation and which led to the filing of the Application was referred by the Office of the Legal Services Commissioner on 18 January 2015. Relevant Legislation
Section 255 of the Legal Profession Act 2004 (NSW) (LPA) provides: (5) A law practice must: (a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and (b) disburse the trust money only in accordance with a direction given by the person. Maximum penalty: 50 penalty units.
Section 297(1) of the Uniform Law provides: For the purposes of this Law, 'professional misconduct' includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
Section 298(1) of the Uniform Law provides: Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct - … (b) conduct consisting of a contravention of the Uniform Rules;
The Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (Uniform Rules) state (in relevant part): 19 Frankness in court 19.1 A solicitor must not deceive or knowingly or recklessly mislead the court. 22 Communication with opponents 22.1 A solicitor must not knowingly make a false statement to an opponent in relation to the case (including its compromise). Relevant Background Facts
The following facts are not disputed:
In 2010 the respondent was introduced to Mrs Kathleen Chambers and her daughter, Ms Pam Yelland, by a mutual acquaintance. Mrs Chambers retained the respondent to draft a Will for her. Mrs Chambers was shortly thereafter also retained by Mrs Chambers' son, Mr Douglas Chambers, for the purposes of preparing a Will for him.
The respondent drafted a Will for Mrs Chambers and met with her on or about 5 May 2010 to have her sign the Will. It was a requirement in New South Wales at the time that the Will needed to be signed in the presence of two witnesses. The respondent was aware of this requirement. The respondent had intended she would be one of the witnesses to Mrs Chambers' Will and had intended her employed administrative assistant, Ms Carlene Bond, to also attend the meeting with Mrs Chambers to be the second witness. Ms Bond was unable to attend the meeting. Mrs Chambers signed her Will, witnessed only by the respondent who signed the Will at the meeting as the sole witness.
On or about 6 May 2010 the respondent attended the nursing home where Mr Douglas Chambers lived, for the purposes of executing his Will. Mr Chambers signed his Will, witnessed only by the respondent who signed the Will at the meeting as the sole witness.
On 9 November 2012 Mr Chambers passed away. The respondent acted in the application for probate of Mr Chambers' Will. Probate was granted on 18 December 2013. Before probate was granted, the respondent issued invoices for fees in respect of the probate and caused five payments from the trust account of Renfrew Lawyers, being assets of Mr Chambers' estate, to be made into her business account as follows: 1. 13 December 2012 - $1000 2. 8 February 2013 - $375 3. 6 June 2013 - $1194.50 4. 18 June 2013 - $1443 5. 25 June 2013 - $2000
On 15 January 2016 Mrs Chambers passed away. On or about 22 January 2016 the respondent met with the surviving children of Mrs Chambers (Ms Pam Yelland and Ms Kathleen Spruce) and gave them copies of Mrs Chambers' Will witnessed by the respondent.
On or about 30 March 2016 the respondent certified a copy of Mrs Chambers' Will as being a true and correct copy of the last Will and testament of Mrs Chambers dated 5 May 2010. The Will as certified was not the Will as signed by Mrs Chambers and the respondent on 5 May 2010, but rather a Will that contained two signatures, the respondent's signature and that of Ms Charlene Bond. That copy of Mrs Chambers' Will indicated that the respondent and Ms Bond witnessed Mrs Chambers signing the Will as testator.
The respondent then acted for Ms Pam Yelland as executor of the estate of Mrs Chambers. In or about July 2016 the respondent, or another person from the respondent's law practice, drafted an affidavit for Ms Yelland in connection with the application for probate to be made to the Supreme Court of New South Wales in respect of Mrs Chambers' estate. That supporting affidavit was sworn by Ms Yelland and witnessed by the respondent on 15 July 2016. Paragraph 3 states: The attesting witness to [Mrs Chambers' Will] is solicitor Louise Renfrew of the firm Renfrew Solicitors who is the deceased [sic] solicitor and that of Carlene Hope Bond.
On 19 July 2016 the respondent filed or caused to be filed in the Supreme Court of New South Wales a Summons for Probate (Summons). The Will of Mrs Chambers with two witness signatures and the supporting affidavit of Ms Yelland as witnessed by the respondent were filed with the Court in support of the Summons.
Despite receiving a requisition from the Court on 10 August 2016, the respondent did not take steps to inform the Court about the fact that the Will had a second witness signature which had not been made at the time the Will was signed by Mrs Chambers.
On 21 September 2016 the Supreme Court granted probate.
On 21 October 2016 the respondent provided a certified copy of the Grant of Probate to Mr Brook's law practice, which acted for Ms Spruce, a beneficiary to Mrs Chambers' Will. A sealed copy of the Will containing two witness signatures was attached to the Grant of Probate.
On 2 November 2016 Mr Brook wrote to the respondent regarding the differences between the version of the Will with one witness signature and the Will with two witness signatures.
On or about 10 November 2016 the respondent sent a letter to Mr Brook in response to his letter and stated: With reference to the provision of the draft Will of the deceased to your client we advise that the Original Will was witnessed by two (2) persons. Myself and Carlene Hope Bond. We confirm that this was the Will in its original form used for Probate Application.
On 13 December 2016 the respondent met with Mr Sofiak, the Chief Trust Account Inspector for the Law Society, at her office.
On 19 April 2017 the respondent sent a letter in connection with this matter to the applicant. In response to questions from the applicant, the respondent said that she did not knowingly mislead the Court or act in a dishonest way.
On 22 October 2017 the respondent sent another letter to the applicant in which she gave incorrect answers to certain questions posed by the applicant in relation to this matter. Relevant Considerations on the Grounds for the Application
The respondent does not dispute that on 15 July 2016 she witnessed the affidavit of Ms Pam Yelland, but says that she did not prepare the affidavit. She accepts that she committed the gravest professional and ethical errors in particular in that she knew that the Will to be submitted in the probate application had the second signature applied to it (which signature was not on or appended to the Will at the time the testator signed the Will), and she was aware that the version of the Will referred to in the supporting affidavit was the Will falsely endorsed with that second signature. The respondent accepts that her conduct was inexcusable and of the highest order of breaches of professional and ethical standards.
The respondent does not dispute that on 19 July 2019 she caused the Summons to be filed in the Supreme Court of New South Wales accompanied by the supporting affidavit of Ms Yelland. The respondent appreciates that what she did was to mislead the Court. She accepts that her conduct in this respect was inexcusable and the most serious nature of breaches of professional and ethical standards.
The respondent does not dispute that on 2 September 2016 when she responded to the Court's requisition, she had a further opportunity to inform the Court that the Will submitted with the Summons had a false second signature, but she did not take that opportunity. She accepts that her continuing failure to bring the matter to the Court's attention was of the same highest level of seriousness as the other breaches of professional and ethical standards she had committed.
The respondent does not dispute that her response to Mr Brook's 2 November 2016 letter, in which she advised Mr Brook that the 'Original Will was witnessed by two (2) persons', was false.
The respondent does not dispute that she was not entirely frank with Mr Sofiak during their discussions in December 2016, although there is a factual dispute as to what was discussed.
The respondent does not dispute that she gave incorrect answers to the applicant in October 2017 The respondent deposes that she did not intentionally mislead or give wrong answers.
The respondent does not dispute that she transferred to her firm's general account in payment of her fees money from the estate of Douglas Chambers held in trust prior to the grant of probate of that estate. She deposes that she had oral instructions from the executor of the estate, Mrs Chambers, to make those payments. There is no allegation regarding the quantum of the fees or that they were not properly charged.

Applicant's Position and Submissions

The applicant contends that the evidence demonstrates: 1. The respondent breached s.255 of the LPA. It is conceded the payments alleged to have been made from the trust account of her law practice to her business account did occur on the relevant dates and that this was prior to the grant of probate of Mr Chambers' estate on 18 December 2013. The respondent admits that the funds concerned were trust money. Even if the respondent had 'instructions' as she alleges from the executor Ms Kathleen Chambers regarding the payments, this did not entitle the respondent to disburse the trust money for payment of legal fees as Mrs Chambers was not lawfully authorised to give instructions within the realm of s 255 LPA before the grant of probate of Mr Chambers' estate. The respondent therefore had no authorisation or direction to disburse the trust money. 2. The respondent prepared and on 15 July 2016 witnessed the affidavit of Ms Yelland in support of the application for probate and that affidavit contained a paragraph that was false, and the respondent knew, or ought to have known, that the paragraph was false. 3. The respondent attempted to, and did, mislead the Supreme Court of New South Wales by filing, or causing to be filed with the Court, the Summons, accompanied by: 1. the Will of Mrs Chambers, which the respondent knew was false in that it was endorsed with two signatures, one of which was falsely applied; and 2. the supporting affidavit of Ms Yelland, the third paragraph of which the Respondent knew, or ought to have known, was false. 1. The respondent attempted to mislead Mr Brook.
The respondent's conduct if found by the Tribunal to have been engaged in knowingly, or recklessly, constitutes both conduct that substantially or consistently failed to reach or maintain a reasonable standard of competence and diligence, thus amounting to professional misconduct under the Uniform Law and is conduct that would be considered by practitioners as 'disgraceful or dishonourable' as those terms were used in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. It has been recognised that the categories of professional misconduct are not fixed: Bechara v Legal Services Commissioner [2010] NSWCA 369, [44] (McClellan CJ at CL).
The respondent acted dishonestly. However, it has been recognised in this Tribunal that conduct might amount to professional misconduct even though it does not involve deliberate dishonesty: see Law Society of New South Wales v Carvan - Unreported Court of Appeal, 14 May 1981 (BC8111397), Bolster v Law Society of New South Wales - Unreported, Court of Appeal, 20 September 1982 (BC8211696) at 1, referred to in Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83 at [200] - [201], [212].
Conduct involving misuse of trust funds is particularly serious, and warrants in the circumstances characterisation as professional misconduct.
The respondent's conduct in respect of the preparing and/or witnessing a false affidavit significantly undermines her integrity as a solicitor. The respondent's conduct in causing the Summons to be filed in the Supreme Court was an attempt to mislead the Court, in that the Summons was accompanied by a version of Mrs Chambers' Will the respondent admits she knew had a second false signature applied to it, and by the supporting affidavit of Ms Yelland that she knew, or ought to have known, contained a false statement. In knowingly or recklessly misleading the Court the respondent acted in contravention of Rule 19.1 of the Uniform Rules.
The respondent's conduct in attempting to mislead Mr Brook was a continuation of the conduct of the respondent in attempting to hide or avoid her prior wrongdoing. In so doing, the respondent acted in contravention of Rule 22.1 of the Uniform Rules.
Each of the four grounds of the Application in this matter, properly characterised, amounts to professional misconduct under either or both the common law and the Uniform Law. The respondent made many decisions extending over several months that were not just to her own detriment but to the detriment of the legal profession. She had a number of opportunities to correct her grievous errors but chose not to do so. Her failure to take steps to rectify her errors shows a serious lack of professional judgment.
With respect to the appropriate protective orders, the principles to be applied in determining the appropriate protective order are set out in Law Society of New South Wales v Walsh [1997] NSWCA 185. The matters to which the Tribunal should have regard include the following: 1. the protection of the public, which is of paramount importance; 2. the maintenance of the high standards of the profession; 3. deterring not only the particular practitioner but others who may stray from the appropriate standards and serving as a reminder to the profession; 4. the gravity of the conduct involved; and 5. emphasising the unacceptability of the conduct involved.
In the circumstances of the present case, the appropriate protective order to be made is an order pursuant to s302(1)(f) of the Uniform Law recommending that the name of the respondent be removed from the Roll. The Tribunal can be satisfied that the unfitness demonstrated by the proven conduct is a present unfitness which is permanent, or at least indefinite, and so justifies an order recommending removal of the respondent's name from the Roll. Any lesser sanction would be insufficient to mark the seriousness of the conduct of the respondent.
Whilst the respondent's conduct in either knowingly, or recklessly, preparing and/or witnessing an affidavit containing false information, in attempting to mislead the Court and a fellow practitioner, as well as for misusing trust funds are individually capable of warranting an order recommending removal from the Roll, together they demand such a sanction. Respondent's Position and Submissions
With respect to Ground 1 of the Application, on each of the five occasions she caused payment to be made from the trust account of her firm in respect of fees for the probate of Mr Chambers' Will, the respondent had oral instructions and authority from Mrs Chambers concerning the payment. Mrs Chambers was named in the Will as the executor of her son's estate.
As set out in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 at 77-78 (cited with approval in Marshall v DG Sugdin & Co Ltd and Anor 16 NSW LR 463), an executor derives title from the will and probate merely authenticates that title and is not the source of it.
When probate of Mr Chambers' Will was granted, Section 44 of the Probate and Administration Act 1898 (NSW) related the executor's powers back to the date of Mr Chambers' death. As a general rule that section permits an executor to engage in transactions for the benefit of the estate, pending the grant of probate. There is no basis to contend that an executor is not able to give instructions pending probate and the respondent in the circumstances believed she was entitled to deal with the executor and rely on her instructions. The respondent therefore did not breach s 255 LPA.
With respect to Ground 2, the respondent admits that on 30 March 2016, she certified a copy of Mrs Chambers' Will as being a true and correct copy but says she did not read the copy at the time. She assumed that the copy she had was the copy of the original Will, containing only the signatures of herself and Mrs Chambers. She did not notice that the Will had a second witness signature. She frankly admits that this was a very serious mistake.
In early June 2016, the respondent's mother was admitted to hospital. After admission, her mother suffered a stroke, was unable to recognise the respondent, was bedridden, was unable to feed herself, lost 99% of her previous vision, and was unable to communicate. The respondent was exhausted and severely distressed by these events.
In late June 2016, the respondent found out about the version of the Will with the second signature. She says that Ms Bond said to her that she (Ms Bond) had added the signature. The respondent says it was a very difficult moment and she did know what to do. She was panicking. She did not want to risk not giving effect to her client's wishes and did not want to risk providing any basis for challenging the Will which did reflect Mrs Chambers' wishes and a grant of probate would avoid disputes. She felt completely overwhelmed and professionally embarrassed. The respondent contends she had no idea what to do. With the benefit of hindsight and some distance from the events, the respondent accepts that there were many ways she could have got help
The respondent says that she did not prepare or read the affidavit she gave Ms Pam Yelland to execute in support of the application for probate. The respondent accepts she should have noticed that paragraph 3 of that affidavit incorrectly stated that Carlene Bond had witnessed the Will.
The respondent also frankly accepts that she knew that the Will to be submitted in the probate application had the second false signature, and that the version of the Will referred to in the supporting affidavit which the respondent witnessed had the second false signature.
The respondent gives the following evidence about this (Exhibit R-1, paras 87-88): "The reason, which I acknowledge is utterly unacceptable, is that I was continuing to panic and essentially bury my head in the sand. I was continuing to hope blindly that if I continued to sit on the issues that they would go away. I was very worried about the possibility of challenge to probate, and the consequences for the family. I accept I was also worried about how this would reflect on me - and felt overwhelmed and I did not know what to do. Effectively I just went through the motions as if everything was normal and there were no problems. I am very embarrassed and ashamed. I accept that my conduct is inexcusable and of the highest order of breaches of professional and ethical standards."
With respect to Ground 3 of the Application, the respondent admits that on 19 July 2016 she filed the Summons for Probate and supporting affidavit with the Supreme Court and she knew at that time that the application was false and the affidavit contained a false statement. In her affidavit the respondent says (Exhibit R-1, paras 89-90): "The reasons I proceeded to lodge this affidavit are, in essence, the same as those just outlined. I was panicking, and going through the motions with a blind hope that all the issues would go away. I appreciate that what I did was to mislead the court I [am] utterly devastated about this. I appreciate that this reflects very poorly on me personally and my conduct as a practitioner, and understand that my actions undermine the trust given by the courts to the legal profession. […] I am mortified. I accept that my conduct is inexcusable. I accept that what I did was the most serious nature of breaches of professional and ethical standards."
In late July 2016, the respondent told Ms Yelland about the problem with the version of the Will having two witness signatures. The respondent accepts that this disclosure was insufficient, as Ms Yelland was not informed about the seriousness of filing the application for probate with the Court with the Will with the second false signature, and that it was too little too late.
The respondent accepts that she should have taken steps to inform the Supreme Court about the fact that the Will had a second false signature when she received a requisition from the Court on 10 August 2016.
With respect to Ground 4 of the Application, the respondent accepts that what she stated in her response to Mr Brook was false and there was no excuse for this. The respondent was hoping that the position would resolve if she pretended nothing was wrong, and is deeply embarrassed and ashamed by the fact that she misled a fellow practitioner, and accepts that this reflects exceedingly poorly on her and her professional standards.
With respect to her discussions with Mr Sofiak, the respondent accepts she should have been, but was not, entirely frank with Mr Sofiak, and that not doing so was a serious failing of her professional and ethical obligations
The respondent also now accepts that, in responding in the way she did to the correspondence from the applicant in 2017, she did not fully accept the gravity of her actions and failed to take care to be sufficiently accurate.
The respondent admits that she has engaged in professional misconduct within the meaning of s 297 of the Uniform Law. She also accepts that the nature of the allegations is such as to enliven the possibility that an appropriate outcome is that her name be removed from the Roll of solicitors.
It is not appropriate to make an order for removal unless the Tribunal is persuaded of the respondent's "probable permanent unfitness" for practice. Unless the Tribunal is so persuaded, the proper order to make is one of suspension or fine or imposing an order for practising under supervision instead of recommending removal.
The respondent contends in her submissions that the evidence does not show that it is probable that the she has "permanent unfitness" for practice. Other than the subject matter of this proceeding, there is no suggestion that the respondent is a person who has a "probable permanent unfitness" for practise. The many character witnesses who have been provided with her very frank witness statement, but still give evidence on the respondent's behalf, cogently counter the crucial notion of probable permanent unfitness.
The relevant principles were summarised in Law Society of New South Wales v Osman [2018] NSWCATOD 75 at [69]-[74]. The three critical principles referred to in that passage, upon which the respondent relies in this case, are as follows: 1. the Tribunal should not make an order for removal unless persuaded of the respondent's "probable permanent unfitness" for practice; unless the court is so persuaded, the proper order to make would usually be one of suspension or fine instead of removal (Osman at [73]). 2. the degree of candour demonstrated by the respondent (Osman at [72]; and contrast the solicitor in that case, who gave no explanation at all, see [64]). 3. while mitigating factors are of considerably less importance than in criminal sentencing, they continue to be relevant (Osman at 71). Consideration
With the exception of the few matters mentioned above, the factual basis for the Application is not in dispute. As the relevant facts that establish the conduct complained of are essentially uncontested, we do not need to further consider the nature and extent of the factual background. The only matters that require formal determination are: 1. whether the solicitor's admitted conduct amounts to professional misconduct, and 2. the orders we should make.
We have already mentioned that the respondent admits that she is guilty of professional misconduct within the meaning of s 297 of the Uniform Law. She also accepts that the nature of her conduct enlivens the possibility that an appropriate outcome is that her name be removed from the Roll of solicitors.
We have carefully considered all of the evidence, the parties' submissions, the legislation and the authorities to which we have been directed. We also carefully considered and observed the respondent in the witness box giving her oral evidence

Finding on Ground 1

Both parties concede that there is considerable complexity to the interpretation of s255(5) LPA in the context of the facts of this matter and that there is an uneasy fit between that provision and sections 44 and 61 of the Probate and Administration Act 1898 (NSW), to which we were referred.
In light of all the evidence and especially in the absence of conclusive authority, we are not sufficiently persuaded that the respondent breached s 255 LPA. Ground 1 is therefore not established.

Findings on Grounds 2-4

Little need be said about Grounds 2-4, save that they are admitted by the respondent and having considered all of the evidence, we find them to be established. We note the respondent says that she did not know that paragraph 3 of the supporting affidavit to the Summons for probate was false (the respondent denies she actually knew it was false and she denies drafting or even reading the affidavit before giving it to Ms Yelland to sign). As to this part of the respondent's evidence, we need not and do not make any finding. We neither accept nor reject what she said in that regard, as she admits she ought to have known it was false.
Legal practitioners are privileged to practice in an honourable profession and must act honourably at all times. Making false, misleading and inaccurate representations such as those admitted by the respondent in this matter is dishonourable conduct unbefitting a legal practitioner. We have no hesitation in finding the respondent guilty of professional misconduct. Indeed, the respondent has admitted her conduct was professional misconduct. It is trite to say that a legal practitioner misleading a court and a fellow practitioner must be amongst the most egregious misconduct that a practitioner can commit. A practitioner has an obligation as an officer of the Court to act with complete integrity. A practitioner must also co-operate honestly with colleagues and respond to correspondence with complete candour.
In knowingly or recklessly misleading the Court in making the probate application in the way she did, the respondent breached Rule 19.1 of the Uniform Rules. Her admitted conduct in attempting to mislead Mr Brook was a breach of Rule 22.1 of the Uniform Rules.
We are satisfied that the respondent's conduct as outlined in Grounds 2-4 of the Application and as established by the evidence constitutes disgraceful and dishonourable conduct and would be regarded as such by the respondent's professional peers of competence and repute and constitutes professional misconduct at common law: (per the often cited test in Allinson).
It is clear, we consider, that the respondent breached in a most serious way the trust that is placed in her as a legal practitioner. As was stated by this Tribunal in Council of the Law Society of NSW v Mayo [2014] NSWCATOD 134 at [40]: The clients, the public, the courts and other members of the profession and are entitled to expect a solicitor to be a person of honesty, trustworthiness and integrity. They are also entitled to expect a solicitor to exercise due competence and diligence. Diligence, of course, involves maintaining ethical standards in complying with the law.
Legal practitioners must never act in a way that undermines the integrity of the profession and the court system and public confidence in its processes.
Each of Grounds 2-4 of the Application, properly characterised, amounts to professional misconduct under either or both the common law and the Uniform Law (ss 297(1) and 298(1)).

What sanction should be imposed?

Section 302(1) of the Uniform Law provides that if after it has completed a hearing in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in professional misconduct, the Tribunal may make such orders as it thinks fit, including one or more of the orders specified in the section. Those orders include an order recommending removal from the Roll, and order reprimanding the practitioner, an order that the practitioner undertake training or education or be supervised as well as an order imposing a fine.
Counsel for the applicant urged us to recommend removal of the respondent's name from the Roll pointing to the comments in Dupal v Law Society of NSW [1990] NSWCA 56 by Handley JA, with whom Priestly JA agreed to the effect that any lesser sanction would be insufficient to mark the seriousness of the conduct of the respondent. The applicant believes that such an order is justified as the proven conduct shows permanent or at least indefinite unfitness to practise.
Counsel for the respondent on the other hand urged against the Tribunal making a recommendation that the respondent's name be removed from the Roll as the evidence does not show that it is probable she is permanently unfit to practise. He also pointed to the respondent having suffered a degree of anxiety in relation to her conduct and from the proceedings before this Tribunal. The respondent concedes that what she did was wrong, understands the potential ramifications of her actions, and is distraught by that fact. Removal from the Roll, the respondent submits would substantially harm her ability to earn a living and support herself.
It is well-established that disciplinary proceedings are concerned with protection of the public. The principles which guide the Tribunal in determining an appropriate order and in particular whether a practitioner's name should be removed from the Roll, were summarised by Beazley JA (as she then was) in Walsh including:
the Tribunal's power is discretionary;
subject to considerations which would compel the Tribunal to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner's name from the Roll when the practitioner has been found not to be of good fame and character;
the subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Tribunal's jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society or Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct promptly to report it;
in general, mitigating factors, such as evidence of a respected reputation, no previously found misconduct, or service to the profession "are of considerably less significance than in the criminal sentencing process": Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 13.
A relevant factor is whether the practitioner understands the error of their actions, and whether the conduct in question is an isolated departure from proper professional standards. The Tribunal is also entitled to take into account the persistence with which the conduct has been pursued and the degree of candour displayed by the practitioner in the course of the disciplinary hearing: Prothonotary v Del Castillo [2001] NSWCA 75.
The ultimate issue, where an order recommending removal from the Roll is contemplated, is whether the practitioner is shown not to be a fit and proper person to be an officer of the Supreme Court: A Solicitor v Law Society of New South Wales [2004] HCA 1; [2004] 216 CLR 253.
In New South Wales Bar Association v Maddocks (Court of Appeal, 23 August 1988, unreported) (at 38) Kirby P said that "normally removal is taken to imply a judgment that a person is forever, or at least indefinitely, disqualified from practising. If this is not the conclusion which the Court has reached, it should stop short of removal."
Similarly in New South Wales Bar Association v Cummins [2001] NSWCA 284 Spigelman CJ at [24] confirmed that an order for the involuntary removal of the name of a practitioner from the Roll of solicitors is made only because 'the probability is that the solicitor is permanently unfit to practise'.
The Tribunal should not make an order for removal unless persuaded of the respondent's "probable permanent unfitness" for practice. The question for the Tribunal is present fitness; that is whether we could be satisfied at the time of the hearing that the respondent is a person who may properly be held out to the public as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor: Del Castillo at [71]. Present fitness to practise is the ultimate issue. Not every finding of professional misconduct justifies a conclusion by the Tribunal that removal from the Roll is the appropriate order: A Solicitor v Council of the Law Society of NSW.
We have already expressed above the manner in which we would characterise the professional misconduct of the respondent. It must be regarded as a most serious failure to observe professional standards. In appropriate circumstances misconduct of this kind would justify cancellation of the entitlement to practice law and removal from the Roll of practitioners or suspension. This is recognised by the respondent herself as already stated earlier.
The evidence in this matter leads us to form the view that it is unlikely the respondent would err in the same manner again. We have considered the respondent's own insight into her misconduct including her comprehension and understanding about what occurred and why. The very frank explanation by the respondent of her conduct and her candour are factors that weigh in her favour. In the course of the proceedings she has not cavilled with the facts alleged in the Application which considerably simplified the determination of this matter. The applicant's Counsel reminds us that the respondent's expression of remorse was not made prior to the proceedings. While this may be true, the respondent has nevertheless now been very frank.
The respondent acknowledges that she acted improperly and we accept that she fully understands and appreciates the gravity of her errors and the seriousness of her conduct. We take into account the respondent's experience. She is a legal practitioner of many years' standing who has practised as a sole practitioner for most of those years. She has no prior history of any other improper conduct, nor is there any evidence of any subsequent misconduct. The respondent has continued to practise as a principal at her firm and was not suspended by the applicant Law Society. The fact that the Law Society has not suspended her speaks against any contention that the respondent is not a fit and proper person to engage in legal practice.
In her affidavit (Exhibit R-1) the respondent demonstrates considerable insight into her conduct and considerable remorse for it. Her insight into her conduct and what appears to be genuine contrition was also reflected in her oral evidence. There has been a complete acceptance of her failings.
The respondent submits that the facts and evidence in this matter support the proposition that her conduct was out of character and isolated. While we agree with the applicant that the respondent's conduct was not a single lapse but a consistent failure over a relatively lengthy period of time, we consider that the evidence is consistent with the respondent's submissions that events snowballed for her and she was overwhelmed, apprehensive and did not know what to do and panicked. These concessions are made in the respondent's affidavit (Exhibit R-1, paras 74, 75, 76, 87, 91 and 107 among others).
As a result the respondent kept making very serious errors of judgment, one after the other, all related to and compounding her original mistakes. She felt overwhelmed and buried her head in the sand. However, we believe the conduct does not reflect the respondent's basic good character. The acts complained of arise largely from one sequence or series of related events without intent to do anybody any ill or harm. The respondent very misguidedly believed that acting as she did, she was acting to give effect to her client's wishes.
The respondent has provided a number of character references (Exhibits R-2, R-3, R-4, R-5 and R-7) all from respected members of the community. Among them are three from experienced legal practitioners: Ms Anne Kinnear (a solicitor), Mr Terence Bates (a barrister) and Mr Mark Brady (also a barrister). They each confirm they have read the respondent's frank affidavit acknowledging her errors and they consider the conduct deposed to is not consistent with their experience of the practitioner and her usual standards of practice. Notwithstanding the admitted conduct, they still consider her a professional and competent practitioner and a person of good character. We consider these references significant in the circumstances of this case.
In determining the appropriate orders that should follow our finding of professional misconduct, we bear in mind that our functions are primarily educative and protective and not punitive in nature (as per Walsh). It is relevant to take into account the effect that the orders the Tribunal makes will have upon the understanding in the profession and members of the public of the standard of behaviour required of practitioners.
The assessment which must be undertaken to determine this issue involves the exercise of a value judgment having regard to the relevant principles and to all of the relevant factual circumstances and evidence before us. Put shortly, it is a matter of impression. As we have already set out, our impression is contrary to that suggested by the applicant. We are not satisfied that in all the circumstances the respondent's conduct was such that she should be regarded, at the present time, as permanently unfit to practise as a solicitor. We are not satisfied that it is appropriate in the circumstances of this case to recommend removal of the respondent's name from the Roll.
There is however no excuse for the respondent's conduct. We believe that in the circumstances of this case the appropriate order is to reprimand the respondent as a deterrent to the profession and to show the Tribunal's disapproval of the conduct. A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession.
We have also determined that while the respondent can continue to practise as a solicitor, conditions should be placed on her practising certificate prohibiting her from practising except under supervision. The respondent conceded that she has suffered for many years from depression that has deepened as a result of the circumstances of her offences and these proceedings (Exhibit R-1, para 138). We think that the respondent will benefit from working in an environment where assistance and supervision are readily available. We are comfortably satisfied that the respondent is not a continuing risk to the profession, particularly if supervised. In the respondent's circumstances, ongoing supervision is appropriate for the proper conduct of her legal practice and for her own mental health.
We also believe that the respondent must undertake courses in legal ethics and wills and probate not only to educate but to remind her of her duty to the law, the profession and the wider public.
We are not persuaded that suspension or a fine (even though respondent proposed such an order) are appropriate. We are mindful that a finding of professional misconduct, which is a serious matter, and a reprimand will of themselves prove a deterrent to the respondent and, importantly, other legal practitioners. The public also should be confident that legal practitioners who do not conduct themselves in an appropriate manner will be dealt with appropriately under the relevant legislation which regulates the conduct of the legal profession. The respondent will be publicly admonished with the publication of these reasons and orders and will incur a financial penalty by payment of the applicant's costs.
The requirement that the respondent practise under supervision and undertake extensive training (including in wills and probate and legal ethics) will provide the necessary assurance to the public that practitioners who do not meet the standards expected of the profession will be sanctioned and if appropriate, required to be further educated.
There is an application for costs by the applicant. Such an order is not opposed and is conceded. Having found the respondent guilty of professional misconduct, the Tribunal is obliged to order that the respondent pay the applicant's costs (see Clause 23 of Schedule 5 of the Civil and Administrative Tribunal Act 2013) unless exceptional circumstances exist. No exceptional circumstances have been suggested by either party. The respondent must therefore pay the applicant's costs. Orders
The respondent is found guilty of professional misconduct and the Tribunal orders: 1. the respondent is reprimanded; 2. the respondent is prohibited from engaging in legal practice except as an employed solicitor supervised by a solicitor with an unrestricted practising certificate. 3. the respondent must not apply for, or be issued with, a practising certificate authorising her to engage in legal practice other than as an employee of a legal practice, corporation or government authority. 4. the respondent must undergo courses of education as follows:

(A) Wills and Probate The respondent must, at her own expense and within six (6) months from the date of these orders, complete a course in wills and probate law that the Law Society of New South Wales' Director, Professional Standards (Director) or Acting Director, Professional Standards (Acting Director) approves in writing (Wills and Probate Course), and therein achieve a pass mark of not less than 50% (Pass Mark). Further: 1. within 7 days of receipt of notification of the result of her participation in the Wills and Probate Course, the respondent must provide to the Director of or Acting Director, the original result notification from the Wills and Probate Course provider; 2. if the respondent fails to achieve the Pass Mark, she must complete any further Wills and Probate Course until such time as she achieves the Pass Mark; 3. if the respondent fails to achieve the Pass Mark within the six (6) month period above then: 1. if the respondent holds a current practising certificate on the date the period expires, that practising certificate shall be suspended from that date until the date that she achieves the Pass Mark; and 2. if the respondent does not hold a current practising certificate on the date the period expires, she must not apply for, or be issued with, a practising certificate until she achieves the Pass Mark.

(B) Legal Ethics The respondent must, at her own expense and within six (6) months from the date of these orders, complete a course in legal ethics that the Law Society of New South Wales' Director, Professional Standards (Director) or Acting Director, Professional Standards (Acting Director) approves in writing (Legal Ethics Course), and therein achieve a pass mark of not less than 50% (Pass Mark). Further: 1. within 7 days of receipt of notification of the result of her participation in the Legal Ethics Course, the respondent must provide to the Director of or Acting Director, the original result notification from the Legal Ethics Course provider; 2. if the respondent fails to achieve the Pass Mark, she must complete any further Legal Ethics Course until such time as she achieves the Pass Mark; 3. if the respondent fails to achieve the Pass Mark within the six (6) month period above then: 1. if the respondent holds a current practising certificate on the date the period expires, that practising certificate shall be suspended from that date until the date that she achieves the Pass Mark; and 2. if the respondent does not hold a current practising certificate on the date the period expires, she must not apply for, or be issued with, a practising certificate until she achieves the Pass Mark. 1. the respondent is to pay the applicant's costs as agreed or assessed; I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2019

Legal Profession Act 2004(NSW)

At a glance

Court

Decision date

Source

Judgment (20 paragraphs)

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Legislation Cited (2)

Cases Cited (10)

Cited By (4)