Victorian Civil and Administrative Tribunal|2011-03-24

Legal Services Commissioner v Comito (Legal Practice) [2011] VCAT 497 (24 March 2011)

Misconduct at common law, certifying explaining of document when not so done, purporting to witness signature to documents when not so done.

Legal Services Commissioner v Comito (Legal Practice) [2011] VCAT 497

Certified that he explained the effect of a guarantee and indemnity to the person giving that guarantee and indemnity (Mr Ceniti) when he did not so explain (Charge 1).
Purported to witness the signature of Mr Ceniti to a guarantee and indemnity when he did not in fact do so (Charge 3).

Purported to witness the signing by Mr Ceniti of an original loan facility agreement when he did not in fact do so (Charge 5).

Purported to witness the signing of an original mortgage of land by Mr Ceniti when he did not in fact do so (Charge 7).

The respondent is reprimanded.
The respondent is to pay an aggregate fine of $10,000.00 to the Legal Practice Board on or before 31 March 2011.
The respondent is to pay to the applicant his costs of the proceedings, fixed by the Tribunal in the sum of $5,519.00, on or before 7 April 2011.

The respondent, Anthony Comito has been charged with four charges of misconduct at common law and four alternative charges of statutory misconduct under the Legal Profession Act 2004.
Mr Comito pleaded guilty to the four charges of misconduct at common law in that he:

Certified that he explained the effect of a guarantee and indemnity to the person giving that guarantee and indemnity (Mr Ceniti) when he did not so explain (Charge 1). 2. Purported to witness the signature of Mr Ceniti to a guarantee and indemnity when he did not in fact do so (Charge 3).

Purported to witness the signing by Mr Ceniti of an original loan facility agreement when he did not in fact do so.

Purported to witness the signing of an original mortgage of land by Mr Ceniti when he did not in fact do so.
The alternative charges fall away by reason of Mr Comito pleading guilty to the four charges of misconduct at common law.

Misconduct at common law also known as misconduct in a professional capacity is preserved by the opening words of paragraph (1) of the definition of professional misconduct in section 4.4.3 of the Legal Profession Act 2004.
Misconduct in a professional capacity, often described as misconduct at common law, has been defined consistently for many years as conduct in a professional capacity which would be reasonably regarded as disgraceful or dishonourable by professional brethren (nowadays read colleagues) of good repute and competency: see Allison v General Council of Medical Education and Registration [1894] 1 QB 750 where the definition was formulated in a case involving a medical practitioner; Re a Solicitor: ex parte The Law Society [1912] 1 KB 302 where the definition was adopted in a case involving a solicitor; Myers v Elman [1940] AC 282 where the definition was approved by the House of Lords and Grahame v AG of Fiji [1936] 2 All ER 992 where the definition was approved by the Privy Council; and Re a Solicitor [1960] VicRp 96; [1960] VR 617 where the definition was applied in Victoria.

The documents signed by Mr Comito related to financial arrangements in respect of a property development. The persons involved in the development were Mr Ceniti, Mr Comito's son, Mark, and his daughter Luisa. Mr Comito and Mr Ceniti had been good friends for many years but at the time of the signing of the documents by Mr Comito they had fallen out. The documents were to be executed by Mr Ceniti, Mark and Luisa. The documents were presented to Mr Comito by Mark and Luisa and Mr Comito witnessed their signatures. He also placed his signature against the place where Mr Ceniti's signature was to be witnessed and certified that he had explained the document to the persons executing the documents. Mr Ceniti had not signed the documents and Mr Comito had not explained them to him.
Mr Comito states that he explained the documents to Mark and Luisa and that he was satisfied that they understood them before he witnessed their signatures and certified his explanation. He states that he knew that it was wrong to sign as having witnessed Mr Ceniti's signatures and certifying explanation of the documents to Mr Ceniti. However, he states that he stupidly regarded it as a technicality. Mr Comito had previously acted as pro bono lawyer to the three joint venturers but concedes that he had not been engaged by Mr Ceniti to advise him in relation to the documents.
This is clearly a case where the informality of family and personal relationships has come into conflict with the necessary formality of a professional relationship. This is what led Mr Comito into error. It was conceded by the applicant's counsel that there is no suggestion of forgery or of Mr Comito being motivated by self-interest or that of his children.

Mr Comito is 65 years of age. He was born in Eritrea and came to Australia without English. He was educated in Melbourne and undertook his legal studies at the University of Melbourne and RMIT. He was admitted to practice in 1970. Having been called up for National Service in 1966 and having been deferred until completion of his law course, Mr Comito joined the Australian Army upon his admission to practice. He completed officer training and was commissioned as an officer. During his Army service Mr Comito rose to the rank of Major and to the post of Deputy Assistant Director of Legal Services.
Upon completion of his National Service in 1972, Mr Comito commenced private practice in Melbourne and has so practised ever since.
The events giving rise to the present charges occurred in 2006.
Other than the present charges, Mr Comito's professional record is unblemished.
Numerous references from members of the legal profession, other professions and the clergy were placed before the Tribunal attesting to Mr Comito's good character and his record of voluntary and pro bono works.
In addition, evidence was given to the Tribunal by Mr John Menetta, Barrister-at-Law, attesting to Mr Comito's ability as a lawyer.
The Tribunal also notes that Mr Comito contributes to the welfare of his late sister's son and his late sister's daughter's son both of whom suffer disabilities.
In short, the Tribunal accepts that Mr Comito is a person of good repute who has given valuable service to the community and who has practised honourably for a long period with the exception of the acts which give rise to these charges.

It is accepted law that the purpose of disciplinary proceedings such as this is not punitive but that it is a mechanism for the protection of the public and for the signifying of disapproval of inappropriate conduct as a deterrent to others.
It was submitted by Counsel on behalf of both the Legal Services Commissioner and Mr Comito that an appropriate disposition is a reprimand and a fine of $10,000 payable within seven days.
The proposed disposition is one which may be seen as lenient having regard to the nature of the misconduct. However, this must be viewed in light of there being no aggravating circumstance and Mr Comito's character and record. I am satisfied that this was an isolated incident which occurred in an environment separated from Mr Comito's usual professional environment. Nevertheless, it did occur within the context of conduct in a professional capacity. Had the circumstances been different, the possibility could have existed for a far more onerous disposition.
Having regard to the circumstances of the events, Mr Comito's record of public service and professional practise, and to his admissions, the Tribunal is satisfied that the proposed disposition is appropriate.

Legal Services Commissioner v Comito

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Judgment (16 paragraphs)

Legal Services Commissioner v Comito (Legal Practice) [2011] VCAT 497 (24 March 2011)

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