Council of the Law Society of NSW v Walsh

Professional misconduct

1. There can be no doubt that the respondent's conduct as particularised, and as properly conceded by him, constitutes professional misconduct as defined in section 297 of the Act. In order to consider the definition, it is first necessary to have regard to the definition of unsatisfactory professional conduct referred to in section 296. These sections are in the following terms; 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 297 Professional misconduct (1) 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. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
2. We trust that it is not necessary to discuss in any detail the significant responsibility that reposes in any person who is called upon to witness a document, because in so doing that person represents to the world that he or she saw the person whose signature is being witnessed actually sign the document. This responsibility is significantly enhanced in circumstances where the document creates rights and obligations recognised by law. Of even greater seriousness is the attestation of a signature by a legal practitioner purporting to attest to the taking of a solemn oath by a person. Such an attestation is fundamental to the conduct of a whole range of endeavours in our community.
3. Legal practitioners are privileged to practice in an honourable profession and must act honourably at all times. Falsely and inaccurately representing that they have witnessed a signature on a document or that a person has taken a solemn oath before them is dishonourable conduct unbefitting a legal practitioner. It must be dealt with accordingly. We have no hesitation in finding the respondent guilty of professional misconduct.

The instrument of consent

1. The parties put before us an Instrument of Consent provided for under section 144 of the Legal Profession Uniform Law Application Act 2014 which is in the following terms; 144 Consent orders (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (2) Consent may be given before or after the proceedings were initiated in the Tribunal with respect to the complaint. (3) If consent is given before the proceedings were initiated, an investigation of the complaint (whether commenced or not) may be dispensed with, and any investigation of the complaint already being conducted may be suspended or terminated. (4) This section does not apply to consent given by the respondent lawyer unless the lawyer and the NSW Commissioner have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the respondent lawyer. (6) The instrument of consent must be filed with the Tribunal. (7) Nothing in this section affects the procedures regarding the initiation of proceedings in the Tribunal where consent was given before the proceedings are initiated. (8) If consent was given before the proceedings are initiated, the proceedings are nevertheless to be initiated with respect to the complaint in the same way as if the consent had not yet been given. (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. (10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.
2. The Instrument was signed by the applicant and the respondent. It contained an agreed statement of facts which is unremarkable. It sought a finding of professional misconduct and the making of protective orders to the effect that the respondent be reprimanded and ordered to pay the applicant's costs.
3. We indicated to the parties that in view of the seriousness of the misconduct as conceded by the respondent we were not content to accept on a prima facie basis the agreed outcome as reflecting appropriate protective orders. We asked that additional evidentiary material be provided, consisting of further background information from the respondent and any character references which he wished to provide. In an adjourned hearing the respondent tendered a statement and gave oral evidence, as well as producing character references.

Evidence relating to protective orders

1. We commence our consideration of the appropriate protective orders to be made in these proceedings by reference to the relevant evidentiary material. In his written statement the respondent informed us that he was admitted as a solicitor in December 1983 having practised previously as a non-practising barrister. He commenced private practice in January 1984 with a firm of solicitors in a regional country area, firstly as an associate and subsequently as a partner where he remained until August 2012 when he commenced his own law firm as a sole practitioner. Whilst practising as a sole practitioner he also performs locum services for four local firms of solicitors. The respondent has a general practice including criminal law and family law. He also performs pro bono work.
2. In his evidence the respondent said that he had witnessed "hundreds, if not thousands of documents for members of the public and often other solicitors" and had performed these tasks "properly and diligently often ensuring that the person understood the difference between a declaration and an oath."
3. The respondent has been actively involved over many years in his regional country area in a range of charitable, communal and sporting activities, has assisted and is continuing to assist his regional and local church organisation in a variety of responsible roles and is actively engaged in mentoring law students especially in the area of professional placement following graduation.
4. Significantly, the respondent has demonstrated both in his written statement and in his oral evidence before us that he has insight into his misconduct which is the subject of these proceedings, and he has expressed what we regard as sincere contrition and remorse for what occurred. There can be no doubt that the making of the complaint against him, and the long period which has occurred whilst it has been investigated and prosecuted by the applicant leading up to the conduct of the proceedings before this Tribunal has had a severe impact on the respondent and on his family.
5. The respondent tendered into evidence character references provided by his local Parish Priest and two solicitors who have practised in the same regional area, one of whom has recently retired. All of the referees were provided with details of the complaint made against the respondent and the fact that he had admitted guilt. All attested to the respondent's good fame and character and to the fact that the respondent's misconduct was out of character.
6. In describing his misconduct as being out of character, the respondent highlighted that when the mortgage documents had been left at his office by the former client and his wife, he had not proceeded to sign them as a witness but had taken the trouble to bring the documents to their place of business and interrogate the former client about whether the signatures on the documents were, in fact, his. It was only after being assured by the former client that it was his signature on the documents that the respondent proceeded to sign them as a witness. In all the circumstances the respondent said that his misconduct represented a momentary lapse and a one-off error of judgement.
7. We note for completeness that although there is evidence of the respondent having come to the attention of the applicant on prior occasions, apart from being issued with a caution on one occasion there is no other matter which the applicant said should be taken into account by us in determining these proceedings.

The appropriate protective orders

1. The principles which apply to the formulation of relevantly appropriate protective orders are well-established. They are conveniently summarised in Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24] and following. Whilst the factual background to those proceedings is significantly different to that with which we are dealing in these proceedings, the observations made by the Tribunal are of relevance, particularly in considering the views expressed by the applicant as contained within the Instrument of Consent. The Tribunal said; It is well-established, without the necessity for resort to authority, that there are four principal aspects to be considered in determining what protective orders are appropriate in any particular case. These are; (1) the gravity of the misconduct (2) the deterrent effect of any protective order on the further conduct of the practitioner (3) the deterrent effect of any protective order on the conduct of other practitioners (4) the enhancement of confidence in the public in the integrity of the profession We commence by observing that an act of dishonesty of the kind in which the respondent engaged is prima facie incompatible with a determination that she is a fit and proper person to engage in the practice of law. Unfitness to practice is a powerful consideration for the cancellation or suspension of the right to practice constituted by the existence of a practising certificate. Similar considerations dictate that both the respondent and other practitioners must be aware that the conduct of this kind exposes them to a real risk that there will be an adverse impact on their right to practice law. Furthermore, the public must have confidence that persons who practice law will observe the highest standards of integrity and honesty not only in their practice but also in their everyday life. In these circumstances the respondent, as she accepted, bears some responsibility for convincing us that neither cancellation nor suspension is appropriate. We have had specific regard to the position taken by the Law Society of NSW and the Legal Services Commissioner both of whom are charged with a degree of responsibility in ensuring that legal practitioners uphold appropriate standards in the practice of their profession. Indeed, the Law Society plays an important part in the formulation, establishment and promotion of codes of conduct for solicitors throughout New South Wales. Furthermore, we would expect that the Law Society in formulating its approach to appropriate protective orders in these proceedings was endeavouring to reflect the representative views of solicitors in New South Wales who are its members. Both of them supported protective orders short of cancellation or suspension of the respondent's practising certificate.
2. 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 matter. In appropriate cases misconduct of this kind would justify suspension or cancellation of the entitlement to practice law.
3. In support of the protective orders contended for by the parties in the Instrument of Consent counsel for the respondent relied on two authorities which it was submitted provided an analogous guide to assist us.
4. The first authority is a decision of the NSW Court of Appeal in Fraser v Council of the Law Society of NSW [1992] NSWCA 72. The relevant facts may be stated shortly. The solicitor the subject of those proceedings received a telephone call from a conveyancer explaining that clients needed to execute mortgage documents urgently, and those documents required a certificate of explanation issued by a solicitor certifying that he or she had explained the mortgage documents and memorandum to the borrowers. The conveyancer told the solicitor that a certificate of explanation had been provided by a non-practising barrister who had since died, and his certificate was not acceptable because he did not hold appropriate professional indemnity insurance at the time. The solicitor knew both the conveyancer and the barrister. The solicitor was also informed that the clients of the conveyancer lived in Wagga Wagga. He worked in Sydney. In order to assist the clients of the conveyancer the solicitor signed the certificate of explanation even though he had never spoken to the borrowers in person or by telephone. Subsequently, a solicitor acting for the mortgagee telephoned the solicitor twice and asked him to affirm that he had signed the certificate, that he held a full practising certificate and that he had explained the mortgage documents personally or by telephone. The solicitor replied to the effect that the mortgagee could rely on his certificate of explanation.
5. Subsequently, the Law Society of NSW initiated proceedings in the former Legal Profession Disciplinary Tribunal alleging that the solicitor was guilty of professional misconduct. The solicitor accepted that he was so guilty. The Tribunal removed the solicitor from the roll. He instituted an appeal to the NSW Court of Appeal. In that Court, separate reasons were delivered by Kirby P and Handley and Cripps JJA. Each of the members of the Court determined that in all the circumstances the appeal would be allowed, the order removing the solicitor from the roll of solicitors was set aside and a fine of $7000 was imposed together with a costs order.
6. Each of the judges formed the view that the solicitor had expressed contrition and remorse for his misconduct and had "a full realisation of the gravity of his misconduct, of its seriousness for legal purposes and of its offence to professional standards and to moral principle." (per Kirby P). Kirby P also took into account that the only serious consequences of the "fraud" committed by the solicitor were for the solicitor himself. Furthermore, his Honour said that in all the circumstances the solicitor should be given a second chance. Each of the members of the Court took into account that the delay between the making of the order of the Tribunal and the conclusion of the proceedings in the Court of Appeal had deprived the solicitor from having practised for a period of 7 months. We do not apprehend that Handley JA took into account whether or not there were serious consequences of the solicitor's conduct. Significantly, his Honour concluded that the Tribunal had been correct to remove the solicitor from the roll of solicitors on the basis of the material before it, but there was justification in allowing the appeal because he was satisfied that the solicitor would never again give a false certificate and that his misconduct was an isolated departure from proper professional standards. The reasoning of Cripps JA was to similar effect of that of Handley JA. His Honour also emphasised the good character of the solicitor as attested to by a number of referees.
7. We do not apprehend that there is any statement of principle which has fallen from any member of the Court of Appeal in Fraser which would cause us to depart from our characterisation of the misconduct of the respondent in these proceedings, nor alter our opinion concerning the appropriate range of protective orders. We observe also that the circumstances which arose in Fraser were significantly different in that the solicitor had been deprived of entitlement to practice for a period of 7 months, and that a monetary penalty of $7000 was imposed over 25 years ago. The quantum of that penalty has to be considered in terms of what that amount would represent in current day value.
8. The second authority is a decision of this Tribunal in Law Society of NSW v Dubler [2018] NSWCATOD 79. The solicitor was instructed by a client to prepare a will and power of attorney. After he had prepared these documents he endeavoured to make contact with the client by telephone but was unable to do so. He left a message on the client's answering machine to the effect that he was posting out the form of will and power of attorney for execution. Before posting out these documents the solicitor signed each one of them as a witness to the client's signature, even though the client had not executed them. In addition, at the foot of the power of attorney the solicitor signed his name as certifying that he had explained the effect of that document to his client before it was signed, and that the client appeared to understand its effect. He also certified that he was a prescribed witness, and that he had witnessed the signature of his client on the document. The documents were posted to the client in about June 2015. The client died in September 2015 apparently without having opened the envelope containing the documents. When the client's daughter discovered the documents they were referred to in proceedings concerning the estate in the Supreme Court of NSW, leading ultimately to the making of the complaint.
9. The solicitor readily admitted that he was guilty of professional misconduct and said that this misconduct was an aberration and out of character with the way in which he conducted his practice. He said "I thought I was being helpful to a man who was in a difficult financial and emotional position. I realise that my actions were wrong. I will not do this again. I sincerely regret my actions."
10. In those proceedings the parties had sought orders pursuant to an Instrument of Consent to the effect that the solicitor be reprimanded, fined the sum of $3000 and ordered to pay the costs of the Law Society. In determining to accede to the making of orders in conformity with the Instrument of Consent the Tribunal said [at 56] "The evidence before us leads us to form the view that it is unlikely that the respondent would err in the same manner again. We take into account the respondent's experience; that his conduct was an isolated departure from proper professional standards, and that he recognises the extent and gravity of his conduct." The Tribunal said the fact that no one had suffered any damage as a result of the misconduct was irrelevant to the determination of what would be the appropriate disciplinary orders.
11. We now come to determine what are the appropriate protective orders informed by the established principles which we have earlier set out, and the observations made in Fraser and Dubler. We have already determined that the conduct of the respondent which is the subject of these proceedings should properly be characterised as professional misconduct. As such, it is misconduct of a most serious kind, and as we have already mentioned, in appropriate circumstances would justify removal from the roll of solicitors or suspension.
12. However, the appropriate protective orders need to be tempered by the readiness of the respondent to concede his misconduct, his insight into his wrongdoing and his expressions of contrition and remorse which we accept as having been sincerely made. Furthermore, the respondent has practised law in a regional area for many years and has a substantially unblemished reputation as a solicitor. In addition, he is obviously a person of overall good character as attested to by his charitable, civic and religious work and the high esteem in which he is held by others. All of these matters in the aggregate persuade us that it is unlikely that the respondent will ever engage in conduct of this kind in the future. Accordingly, the necessary deterrent effect on the respondent is ameliorated. Furthermore, the necessity to protect the public from the further misconduct of this respondent is ameliorated in the same manner.
13. However, it is necessary to consider the deterrent effect of the protective order which we shall make in these proceedings on the conduct of other legal practitioners and its effect in enhancing the confidence of the public in the work carried out by legal practitioners and the reputation of the profession generally. The factual circumstances which apply to these proceedings provide a ready example of how a well-meaning legal practitioner may succumb to the temptation to help out a client by taking a shortcut, whether to save time or costs or otherwise. We should make it clear that false representations that a signature has been witnessed by a legal practitioner or that the nature and effect of a document have been explained to a person by a legal practitioner involve misconduct of a most serious kind, for reasons which we have earlier referred to. In these circumstances it is not, in our opinion, appropriate to confine the protective orders to the imposition of a reprimand. We acknowledge that prima facie a reprimand denotes the public opprobrium of a legal practitioner, and in reality it should be seen as constituting something more than a "slap on the wrist."
14. The assessment of an appropriate protective order involves the exercise of a value judgement as part of an intuitive process. That intuitive process commences by having regard to the nature and extent of the misconduct engaged in and the mitigating factors which apply to the circumstances of the respondent. Superimposed upon these matters is the necessity to deter other legal practitioners and the requirement to uphold the integrity of the profession in the eyes of the public. In all the circumstances we consider that it is appropriate that in addition to a reprimand a monetary fine be imposed. In fixing the amount of the fine we take into account the mitigating circumstances which apply to the respondent as well as his exposure to an adverse costs order which he has conceded should appropriately be made. We apprehend that the orders which we have determined are appropriate are compatible with the approach taken in Fraser and Dubler referred to above.

Orders

1. Consequent upon the finding of professional misconduct which we have made we make the following orders; 1. the respondent is reprimanded 2. the respondent is fined the sum of $1000 3. the respondent is to pay the costs of the applicant as assessed in default of agreement

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: 17 December 2018