Law Society of New South Wales v Dubler

Jurisdiction

1. It was not in dispute that these proceedings are governed by the Legal Professional Uniform Law (NSW) (the Uniform Law).

Agreed Facts

1. On 24 April 2018, as earlier noted, the parties filed an Instrument of Consent under s144 of the Application Act. The Instrument was executed by both the Law Society and by the Respondent and annexed an Agreed Statement of Facts. We deal with the facts agreed between the parties in Consideration and Findings below.

Evidence of the Law Society

1. The Law Society relies on two affidavits of Ms Foord sworn 26 June 2017 and 13 March 2018 (cumulatively Exhibit AX1).
2. Ms Foord's 26 June 2017 affidavit deposes to her having searched the Law Society's records which indicate that the Respondent was admitted to the Supreme Court of New South Wales Roll on 29 August 2013; has at all material times been the holder of a Practicing Certificate issued by the Law Society but subject to the condition that as a solicitor he worked as an employee. They also indicate that the Respondent has not - since admission - been employed as a solicitor in a law practice.
3. The affidavit then deposes to the investigation process, commenced following receipt of a letter from the Director and Prothonotary of the Supreme Court dated 4 May 2016. The letter stated that it had come to the attention of that officer that the conduct of the Respondent in respect of witnessing a Will fell short of the standard required of a legal practitioner. The letter indicated that the matter was being referred to the Law Society to consider what action if any should be taken against the Respondent. The letter set out the background as follows: 1. A Summons for administration of the Estate of Mr Broome was filed with the Supreme Court on 18 December 2015 2. The daughter of Mr Broome, Georgie McLeay Broome ("Ms Broome") had sworn an affidavit of Applicant 3. Ms Broome deposed in her Affidavit that she located a sealed envelope addressed to Mr Broome that had not been opened, and that the contents of the affidavit included a Will and an POA which had not been signed by the testator or principal, however had purportedly been witnessed by the Respondent 4. In response to a requisition raised by a Deputy Registrar the Court had received an affidavit of the Respondent sworn 22 February 2016 5. The Director and Prothonotary had trouble accepting the explanation given by the Respondent; further, was concerned that the witnessing of documents in the absence of testators, principals or deponents may be a general practice of the Respondent.
4. A copy of the Supreme Court's file in respect of the administration application was provided. On 10 May 2016, following its receipt by the Law Society, a complaint was made against the Respondent on 10 May 2016 under s266 of the Uniform Law.
5. The material provided by the Supreme Court to the Law Society included a letter from Aubrey Brown Lawyers to the Registrar of the Probate List of the Equity Division of the Court enclosing a number of documents including a Summons for administration, and the affidavit of Ms Broome.
6. Ms Broome in her affidavit sworn 7 December 2015, deposed to being a daughter of Mr Broome and a University student; further, that her father, the testator, died on 12 September 2015. She annexed to her affidavit what purports to be a copy of the last Will and Testament of Mr Broome bearing the date 23 June 2015 and a POA also bearing the date of 23 June 2015. In her affidavit she described the circumstances by which she came upon these documents: "I located a document purporting to embody the testamentary intentions of the deceased. It was discovered in a sealed envelope addressed to the deceased but had been unopened by him and it was unclear if the deceased intended the document to be his final Will and there was insufficient evidence the deceased intended the document to be his final Will. Annexed hereto and marked with the letter "B" is a copy of that document, together with the other documents discovered in the sealed envelope annexed hereto and marked with the letters "C" and "D""
7. Annexure "B" is the Will; annexure "C" the POA; and Annexure "D" is a handwritten document saying:
8. "Geoff
9. Please sign bottom of each page and last page using a black pen (your Will)"
10. Annexure "B" to Ms Broome's affidavit is described as a Will bearing date 23 June 2015 made by Mr Broome of South Tacoma. It bears the signature of two witnesses described on page 5 (being page 18 of the Exhibit to Ms Foord's affidavit) as the Respondent (witness 1) and Sharon Dubler (witness 2). It does not bear the signature of the testator. Adjacent to the position of where a testator would normally sign is a photocopy of an arrow within which are the words "Geoff sign". This to indicate where the testator should sign. To the left of where there was provision for the signature of the testator were the words:
11. "Signed by the Will maker in our joint presence and attested by us in the presence of the Will maker and each other"
12. Annexure "C" to Ms Broome's affidavit, being the 23 June 2015 POA contains two signatures in sections 5 and 6. Immediately to the left of the signature in section 5 are the words "signature of prescribed witness" and below the signature are the words "name of prescribed witness Martin Dubler". Immediately above the signature of the prescribed witness is provision for the signature of the principal. There is no signature recorded. To the left of the place where a principal would ordinarily sign are the handwritten words "Geoff sign".
13. On the same page at the foot of the document there is a certificate under s19 of the Powers of Attorney Act 2003. The Respondent is named as the certifier. He certifies that he: 1. explained the effect of the POA to the principal before it was signed 2. the principal appeared to understand the effect of the POA 3. he was a prescribed witness 4. he had witnessed the signature of the POA by the principal 5. he was not an attorney appointed under the Power of Attorney.
14. A signature then appears which appears to be the same signature as that appearing in s5 of the POA and as witness 1 on page 5 of the Will.
15. At pages 43 to 49 of the Exhibit to Ms Foord's affidavit is an affidavit of the Respondent sworn 22 February 2016 in the Supreme Court probate proceedings in response to the requisition by the Principal Registrar. In his 22 February 2016 affidavit the Respondent says relevantly: "2. I am a Solicitor instructed by the deceased to prepare Estate Planning documents for him. 3. I met with the deceased on or about April 2015, and we discussed his Will. 4. The deceased had said to me he wished his assets to be divided equally between his children. 5. I later prepared the draft Will annexed to the Plaintiff's affidavit, a copy of which is annexed hereto and marked "A". 6. I telephoned the deceased a number of times to arrange a time to go through his Will. 7. The deceased at no time answered my call nor returned my call. 8. I forwarded to the deceased the draft Will, which was signed by myself and my paralegal, but not in the deceased's presence. 9. It was my intention to send the deceased a signed version of the Will to encourage the deceased to contact me so that I could arrange a meeting with him so that we could properly execute the Will."
16. The document attached to the affidavit is a further copy of the 23 June 2015 Will in identical terms to that annexed to Ms Broome's affidavit. The annexure to the Respondent's affidavit also bears no signature of the testator.
17. An inventory of property appearing at page 56 of Ms Foord's affidavit indicates the value of property owned by the deceased at the time of his death to be in the order of $486,400. Page 10 of the same Exhibit suggests that the net value of the Estate was in the order of $381,300.
18. Following initiation of the complaint against him, and in response to the Law Society's 24 June 2016 requirement to provide written submissions, the Respondent by letter of 1 July 2016 (appearing at page 60 of Ms Foord's affidavit) sets out the circumstances by which he met Mr Broome in or about April 2015 and advised him that he would prepare a Will and a POA. He then said in his letter: "I prepared drafts of the documents for him. I tried to call him on numerous occasions to arrange a time to meet to present the documents and sign them. On each occasion my phone calls went to message bank. He failed to return my calls. I wanted to assist him. I therefore rang him and advised him that I would witness the documents and mail them to him for him to sign. I thought that I was helping him. I should not have done this. It is not my practice to witness documents in the absence of the Principal. I sincerely regret my actions."
19. Following receipt of the Respondent's 1 July 2016 letter the Law Society wrote to him on 16 February 2017 advising of a resolution of the Professional Conduct Committee of the same date that the Respondent be informed of the issues of professional misconduct involved in purporting to witness the Will and the Power of Attorney when neither had been executed by the testator/donor; advised of the Committee's opinion that subject to any submissions orders ought be sought from this Tribunal, and indicated that if the Respondent wished to make any further submissions he needed to do so within 14 days.
20. The Respondent did make further submissions by letter of 21 February 2017 in which, inter alia, he set out the work that he performed as a registered tax agent, the effect that a professional misconduct finding would have on his practice, a number of personal matters, and the absence of complaint made against him. He then said in relation to the professional misconduct issue: "I take my responsibility as a legal practitioner very seriously. All I can say is that my conduct in Mr Broome's case was an aberration and not the way that I conduct my practice. 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."
21. Further communications ensued between the Law Society and the Respondent, with the Respondent essentially repeating what is recorded above in a further letter of 15 March 2017.

The Respondent's Evidence

1. The Respondent swore an affidavit in these proceedings on 19 February 2018 (Exhibit RX1).
2. Paragraphs 1 to 6 essentially repeat what the Respondent had deposed to in his 22 February 2016 affidavit about meeting Mr Broome in April 2015, offering to prepare, and then preparing, a Will and POA. The Respondent then said: "7. I contacted Mr Broome by telephone on numerous occasions. I wished to arrange a time where we could meet to sign the documents. He failed to return any of my telephone calls. 8. I left a message on Mr Broome's telephone advising that I would mail a Will and enduring Power of Attorney to him. I asked him to contact me when he received the documents. 9. On or about June 2015, I mailed to him a Will and Enduring Power of Attorney which I had signed together with instructions as to how he should sign the documents. 10. Mr Broome died in September 2015. 11. I received a telephone call from his daughter [Ms Broome] advising me that she had found a Will in an unopened envelope. I advised her that she would need to talk to a lawyer. 12. I sincerely regret my actions. I accept that my actions were wrong and completely contrary to those of a prudent solicitor."
3. The Respondent gave brief oral evidence relative to his statement in his 1 July 2016 letter to the Law Society [Foord Exhibit paragraph 60] of having telephoned Mr Broome and advising him that he would witness the documents and mail them to him to sign. It had been pointed out during the course of submissions that what appears to have been a discussion between the Respondent and Mr Broome recorded in the 1 July 2016 letter was not within the Respondent's 19 February 2018 affidavit. The Respondent's evidence was that Mr Broome did not in fact answer a number of telephone messages that the Respondent left for him and that the reference in the letter to the Respondent advising Mr Broome that he would witness the documents and mail them to him to sign was in fact a message that was left on Mr Broome's answering machine and not something that was said to Mr Broome directly.

A. What issues require determination

1. This Tribunal is required to determine whether, on the evidence presented, and admitted to, the Respondent is guilty of professional misconduct [section 302 Uniform Law].
2. If we so find, s302 of the Uniform Law permits the Tribunal to make any orders that it thinks fit including those set out in sub-sections (1) and (3), and including the orders proposed in the Instrument of Consent.

B. Did the Respondent's conduct amount to professional misconduct

1. We find each of the facts set out in the Agreed Statement of Facts established to the requisite Briginshaw standard. The evidence of Ms Foord, which is admitted by the Respondent in his affidavit, establishes the particulars of each ground of complaint set out in the agreed statement. They are the same grounds as those pleaded in the Application. The Respondent, in his Reply to that Application, specifically says that he did not dispute the facts set out in it nor in Ms Foord's affidavit.
2. Section 297 of the Uniform Law provides, so far as relevant: "Professional misconduct 297(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) the 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 sub-section (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."
3. The Law Society submits that the Respondent's conduct was extremely serious and constituted professional misconduct. We agree.
4. In Law Society of NSW v Gathercole [2016] NSW CATOD 27 the Occupational Division of this Tribunal found that a solicitor who, on a number of occasions, falsely purported to witness the signature of a mortgagor on various mortgage documents, as well as certifying that he had attended on the mortgagor in conference, amounted to professional misconduct of a very high degree.
5. Similarly, the NSW Court of Appeal in Fraser v Council of the Law Society of NSW [1992] NSWCA 72, found that a solicitor who had falsely certified that he had explained mortgage documents to certain mortgagors was guilty of professional misconduct.
6. We are comfortably satisfied that a legal practitioner who: 1. purports to witness the execution of a Will when it had not been, at that point, executed by the testator; 2. purports to witness the execution of a POA when it had not, at that point, been executed by the donor; 3. makes a false certificate under s19 of the Powers of Attorney Act 2003, and 4. seeks that his or her testator/donor client execute a Will/POA when the respective documents had already (and not in the testator/donor's presence) had the practitioner and another person's signature appended thereon as witnesses is guilty of professional misconduct. It is conduct that would usually justify finding that the practitioner was not a fit and proper person to engage in legal practice.
7. The Respondent concedes, in the Instrument of Consent, that this Tribunal would find that the conduct described under the heading "Grounds of Complaint", and particularised in the Agreed Statement of Facts attached to these Reasons, amounts to professional misconduct.

C. Disciplinary Orders Proposed

1. The parties, by their s144 Instrument seek orders that the Respondent be: 1. reprimanded 2. fined the sum of $3,000; and 3. ordered to pay the Law Society's costs as agreed or assessed.
2. The Law Society concedes in its submissions that the Respondent at no time has denied the conduct alleged against him. He has been forthright in his dealings with the Law Society. It is because of that frankness in response that the Law Society does not seek the order that it originally sought in the Application filed in June 2017, namely a recommendation that the name of the Respondent be removed from the Roll.
3. Mr Pierotti, for the Law Society, referred us to New South Wales Bar Association v Thomas [1989] NSWLR 193, where Kirby P, in proceedings involving the misconduct of a barrister, referred with approval to the barristers candid acknowledgment in evidence before the Court, written and oral, that with the wisdom of hindsight there had been steps which the he could, and should, have taken to avoid what became the subject of complaint. His Honour said that in approaching the ultimate questions of whether a respondent in such circumstances ought be struck off one is entitled to bear in mind a number of facts including whether a respondent, when asked questions which directly required disclosure of material facts, answered honestly; or alternatively, sought to protect his or her position.
4. Mr Pierotti pointed to the fact that the Respondent in his Supreme Court affidavit responding to the Principal Registrar's requisition, deposed that he had forwarded the Will that he had drafted to Mr Broome signed by himself and his paralegal, but not in Mr Broome's presence. There is also the Law Society's initial letter to the Respondent of 24 June 2016 and the Respondent's candid 1 July 2016 response of purporting to witness the documents then mailing them to Mr Broome to sign; the Respondent's concession that he "should not have done this"; that it was not his practice to witness documents in the absence of a Principal, and that he sincerely regretted his actions. Mr Pierotti informed us that the Law Society was comfortable with the responses the Respondent provided.
5. Mr Pierotti further referred us to the observations of Beazley JA in Law Society of NSW v Walsh (unreported, Court of Appeal (NSW) 15 December 1997). Her Honour, in considering a claim of professional misconduct against a legal practitioner, and after referring to the fact that such disciplinary proceedings were concerned with the protection of the public, said: "The Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect it will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. In this sense, any penalty imposed should contain an element of general deterrence, publicly marking the seriousness of what the instant solicitor has done."
6. Mr Gooley, for the Respondent, said that his client totally agreed with the submissions put for the Law Society by Mr Pierotti but urged against the Tribunal making a recommendation that the Respondent's name be removed from the Roll. He pointed to the Respondent having suffered a degree of anxiety in relation to his conduct and from the proceedings before this Tribunal. The Respondent conceded that what he did was wrong, understood the potential ramifications of his actions, and is distraught by that fact. Removal from the Roll, it was submitted, would substantially harm his present occupation as a tax agent.
7. Mr Gooley also relied upon the Solicitor's early and frank admission of misconduct, and the observations made by Kirby P in Thomas referred to above.
8. We determine that the appropriate orders are those recorded in the Instrument of Consent. We are of the view that an order recommending the Respondent's name be removed from the Roll is not required for the proper protection of the public.
9. The NSW Court of Appeal in Fraser (cited above) was dealing with a solicitor who had falsely certified that he had explained mortgaged documents to certain mortgagors. In disciplinary proceedings the Legal Profession Disciplinary Tribunal (as it then was) had ordered that the Solicitor be removed from the Roll. The Court of Appeal quashed that order and instead ordered that a fine of $7,000 be paid. Kirby P said: "…I have concluded that the proved and admitted behaviour of the Appellant was professional misconduct. But I do not believe that it requires the removal of his name from the Roll. He should be afforded another chance. It is inconceivable that he would ever err the same way again. I take into account, in coming to this conclusion, the Appellant's age, his experience as a solicitor to date, the attitude of helpfulness which he appears to display to his clients and the good opinion expressed of him by a fellow practitioner and a member of parliament in statements placed before the Court."
10. Handley JA said: "So far as the evidence reveals, and there is nothing to suggest otherwise, this was "an isolated… departure from proper professional standards". The Appellant is still young, with limited experience, and as a result of these proceedings he will be both a sadder and wiser man. He has now been off the Roll of Solicitors for over 7 months. In my opinion therefore, the requirements of this disciplinary and protective jurisdiction will be fully met if this Court were to make the orders proposed by Kirby P."
11. Cripps JA, after referring to the Appellant's recognition of the extent and gravity of his conduct, and that it fell short of the standards required to be observed by practicing solicitors, said: "The essential function of the Court is not to decide an appropriate punishment. It is to determine what order should be made bearing in mind the evident purpose of the legislative provisions ie to protect members of the public by not exposing them to persons who are unfit to practice as solicitors and to promote and maintain public confidence in the legal system."
12. 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.
13. Finally, the Respondent in his 19 February 2018 affidavit referred in paragraph 13 to the fact that his conduct has not resulted in any damage being suffered by any person. That was also relied upon by Mr Gooley in his submissions.
14. There is no evidence before us as to the suffering of damage by any party. We consider such an issue, however, to be irrelevant to our determination as to what disciplinary orders ought be made.

ORDERS

1. The Tribunal, having found the Respondent Martin Dubler guilty of professional misconduct, orders that: 1. The Respondent be reprimanded 2. The Respondent be fined the sum of $3,000 3. The Respondent pay the costs of the Applicant (the Council of the Law Society of NSW) 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: 25 May 2018