Upon the respondent pleading guilty to one charge of professional misconduct the Tribunal orders -

1. The respondent be reprimanded.
2. The respondent pay a fine of $3,500.
3. The respondent pay the applicant's costs of this proceeding to be taxed in default of agreement in accordance with County Court Scale D.

1. In this proceeding the Legal Services Commissioner seeks orders against a practitioner, Ms Johal. Ms Johal was born in 1984 so is 27 years of age. She was educated in South Australia and obtained degrees in commerce and law from the University of Adelaide in 2006. She was admitted to practice in Victoria on 12 August 2008. It is fair to observe that the process of her admission to practice was attended by one or two hiccups. These related to allegations of plagiarism in reference to a non-assessable project submitted by her to the College of Law in the course of her training. Ultimately the Board of Examiners determined that she should be admitted though a transcript of some of the proceeding in which that determination was made on 27 May 2008 before a board consisting of Ms Cameron, Chairperson, Mr Meldrum QC, Mr Joping QC and (Justices Emerton and Almond as they now are) records that it was at times a close run thing. Ms Cameron in her remarks indicated that the determination to admit was a majority determination and not a unanimous one and that the examiners were concerned that there had not been a fully frank disclosure before them in the course of various pieces of evidence given by Ms Johal.
2. Ms Cameron concluded by saying:

We hope that you take this experience very seriously; that the conduct that you have engaged in is never repeated and that you fully satisfy and live up to the very high expectations of the profession we wish you all the best for the future.

1. The following year Ms Johal who it appears from the evidence had suffered serious personal difficulties following the break-up of a long-term relationship which according to her account entailed elements of physical and psychological abuse by her former partner took a days absence from her employment at the law firm MDP McDonald who had supported her application for admission. She was called upon to produce a medical certificate for that day's absence, namely 4 September 2009.
2. Initially she asserted on two occasions that such certificate existed and she ultimately provided a document which was a forgery, that is, derived from an earlier genuine certificate with the date of August. Her employer detected the forgery immediately and she was summarily dismissed. The principal of the firm, Mr McDonald made a complaint to the Legal Services Commissioner. The Legal Services Commissioner commenced proceedings in the Tribunal laying some three charges in the alternative, though I am sure if the former Justices Batt and Tadgell were here in the Tribunal they would say that there can never be more than two alternatives. Ultimately (and I should say at a fairly early stage, that is in December of last year), Ms Johal elected to plead guilty to the third of the three charges and so the first two are not being proceeded with and they can now be ignored.
3. The third charge in the Commissioner's application was in the following terms:

The respondent by deliberately forging the September 2009 medical certificate is giving it to her employer engaged in professional misconduct within the meaning of section 4.4.4(a) of the Act [that is the Legal Profession Act 2004] as her conduct was dishonest and thus in contravention of rule 30.1.1 of the Professional Conduct and Practice Rules 2005.

1. I should observe that the relevant rule in the Professional Conduct and Practice Rules is a generalised obligation on the part of practitioners to conduct themselves with honesty.
2. The proceeding today has been conducted by Mr Over on behalf of the Commissioner and Mr Bartfeld QC who has represented Ms Johal. Ms Johal herself gave evidence of which she was cross-examined by Mr Over and briefly re-examined by her own counsel, Mr Bartfeld.
3. The graveman of Mr Over's cross-examination was that whilst when confronted with the falsity of the certificate Ms Johal admitted that it was false, she nevertheless made a number of factual assertions relative to the situation either by way of excuse or mitigation which ultimately were not justified and have not been persisted in at hearing today. These include allegations that the principal of the law firm of which she was employed, Mr McDonald; his wife, Mrs McDonald, the practice manager and others in the firm bullied and harassed her. Mr Bartfeld QC has told me that whilst it is accepted that objectively this allegation could not be made good, it could have been perceived subjectively by his client as being the situation. Mr Over also took Ms Johal to her initial response to the Commissioner in which she made heavy emphasis on this alleged harassment and bullying and called for the charges against her to be dismissed as vexatious. Mr Over's point was that this showed a failure to appreciate the seriousness of what was involved in characterising it as vexatious and also to a degree a lack of candour by seeking to put the blame in a way upon the employer. He also cross-examined Ms Johal as to statements relative to psychological treatment that she was receiving, assertions that she was receiving weekly counselling from a clinical psychologist whereas the fact was that she was attending a single six session course of treatment and she received six or seven treatments from the psychologist and not weekly psychological treatment and so on.
4. Whilst the psychologist himself did not appear as a witness I have the advantage of a report from him which was accepted into evidence. The report states inter alia:

At the time of her first presentation, Ms Johal reported reduced appetite, insomnia, a lowered sense of self worth, decreased concentration, and lowered mood all occurring over the 3 to 4 weeks previous to the first session of psychological counselling. She denied any suicidal thinking in the previous two weeks. These symptoms were consistent with at least five of the criteria required by the Diagnostic and Statistical Manual -IV for the diagnosis of a Major Depression Episode. She also reported anxiety related symptoms such as panic episodes.

1. To put this in the proper context of time, the report records that there were seven sessions between 28 July and 22 December 2009. It will be seen therefore that the incident of September occurred approximately in the middle of this course of treatment.
2. At the conclusion of his report, the psychologist, Mr David Xureb said:

In summary, I conclude that Ms Sharon Johal did experience difficulties in interpersonal situations in her work during 2009 and that these difficulties may be largely attributable to symptoms that relate to her traumatic experiences sustained in her relationship with a previous boyfriend. It is these symptoms, which regrettably, have remained untreated, but probably account for the PAI T-Scores that suggested Hypervigilance, Resentment, Negative Relationships, Traumatic Stress and Anxiety as being significantly elevated when compared with the PAI Census-Matched Standardisation Sample. These findings would tend to suggest that at some point during her previous employment, Ms Johal's judgment may have been impaired during her time working as an employee of Mr Michael McDonald, primarily due to a combination of untreated post-trauma symptoms and stress experienced due to workplace bullying as reported by Ms Johal.

1. I also had the advantage of statements from the partners of the firm which now employs Ms Johal and who employed her in November 2009 in circumstances of full disclosure of the incident that led to her parting of from MDP McDonald.
2. This material therefore is the material available to me for my adjudication. Having regard to the guilty plea, the only matter that I have to consider is the matter of penalty and disposition. It is accepted that in the circumstances of a plea an order for costs would flow as a matter of course by reason of Clause 46D of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. It has been proposed by Mr Over on behalf of the Commissioner and not dissented from by Mr Bartfeld, that costs should be fixed according to County Court Scale D.
3. The proposed disposition according to the view of the Commissioner is that Ms Johal's practising certificate should be suspended and that she not be granted a new practising certificate for up to one year from the date of the suspension. Mr Bartfeld submits that this leads far too heavy a penalty and an unfair disposition in all the circumstances. He submits that in the circumstances of the criminal justice system, matters such as the one that brings us here today would merit a reprimand or perhaps a fine under Clause 4.4.19 of the Legal Profession Act 2004. Paragraph (b) would be the appropriate disposition. As to the later he stresses that his client has a fairly exiguous financial situation, modest earnings, a large mortgage debt, heavy mortgage repayments and the necessity to resort to the letting part of her city residence to raise additional income.
4. Mr Over referred me to the authorities on appropriate dispositions in these circumstances. First he said that the Tribunal's powers in this regard are primarily protective though they also serve a punitive function. He referred to Hanneberry v Legal Ombudsman [1998] VSCA 142; Quinn v Law Institute of Victoria [2007] VSCA 122; Law Institute of Victoria v Slattery (Legal Practice) [2008] VCAT 1179 at paragraph [58] and Law Institute of Victoria v Brott [2008] VCAT 1998. Mr Over submitted that it was appropriate that I consider that aggravating and mitigating factors. He referred to Slattery's case at paragraphs [50] - [52] and quoted a series of considerations that are relevant in these circumstances as set out by Dal Pont: Lawyers' Professional Responsibilities 3rd Edition in 2006 at paragraphs [23.110] to [23.116]. The considerations are as follows:

(b) the attitude of the practitioner to her conduct;

(g) material advanced by third parties as to her character;

(h) loss suffered by others because of the misconduct; and

(i) loss already suffered by the practitioner as a result of the misconduct.

1. As to the nature of the conduct, Mr Over referred to a decision of the New South Wales Court of Appeal in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 where the Court, Spigelman CJ, the President of the Court of Appeal, Mason P and Handley JA said at paragraph [56]:

First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essentially for, the conduct of practice. In this second case, the terminology of "professional misconduct" overlaps with and, usually it is not necessary to distinguish it from, the terminology of "good fame and character" or "fit and proper person".

1. This analysis he said was endorsed by the High Court in A solicitor v The Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253. He referred to paragraphs [33] and also paragraph [20]
2. As to matters of attitude to conduct Mr Overs referred to the remarks of the Court of Appeal. To Tadgell JA with whom Chernov and Phillips JJ concurred in Hanneberry v Legal Ombudsman [1998] VSCA 142 at paragraph [22] where the Court said:

That disciplinary tribunal is not only entitled but obliged to take into account any failure by the practitioner to understand the error of his or her ways.

1. I was also referred by Mr Overs to two determinations of the New South Wales Administrative Decisions Tribunal. In one case, the case of Lesley McIntosh Young, Law Society of New South Wales (No. 3) [2001] NSWADTAP 38, a decision of the Appeals Panel and the Council of the Law Society of New South Wales v Russell [2008] NSWADT 268 a decision of the Tribunal but not the appeal panel. In both of these cases the practitioners in question forged documents. In Young's case the forgery was of letters of administration which believed to be genuine were used by a client in the administration of a deceased estate. In the other case it was forgery of a statutory certificate known as VETASSESS which was relevant to an application to the Department of Immigration and Multicultural Affairs of the Commonwealth. The fact was the certificate had been denied but the practitioner produced a forged version. In the case of Russell a fine of $10,000 was imposed. In the case of Young two fines totalling $13,000 were imposed.
2. I return then to the consideration of the various matters which are appropriate for the consideration of the proper disposition. In this case Ms Johal's conduct was of a very serious nature indeed. Integrity is of the first and most indispensable necessity for a legal practitioner. The forgery of any document clearly is a grave offence against that obligation of integrity and honesty. The document it is true related only to a private employment relationship within the law office. It had no statutory standing. It was not a court document. It did not impinge on any way on the interest of any client. The importance however of maintaining an absolute obligation of integrity and honesty is paramount. The forging of any document is the start of a slippery slope. A medical certificate today, letters of administration tomorrow. In its disciplinary role the legal system cannot trivialise or wink at any sort of forgery whatsoever. That said the forgery in this case being a matter of private contract within the law office was of a vastly lesser quality than was the conduct of either the practitioners dealt with by the New South Wales Tribunal. Ms Johal has shown contrition. When confronted with the truth she admitted the truth. She has however I think prevaricated to some degree in bringing in allegations which have not ultimately been supported relative to harassment and making exaggerated claims for the nature of the psychological treatment that she was seeking and so forth. So her attitude to these matters was generally appropriate in the admission of guilt but not all that we might have hoped for. The plea that she has made at an early stage of the proceedings clearly stands strongly in her favour. There is other uncontradicted evidence that she was affected by illness or external stresses in the manner which I recited from the psychologist's report. She was admitted to practice in 2008. This incident occurred in 2009. On any view at that time she was a practitioner of relatively little experience and what she has done therefore must be viewed as less serious for that reason.
3. Her dealings with the Board of Examiners mean that I cannot regard her as having an entirely unblemished record as she comes before me today. Her present employers have given her firm endorsements and have offered and stated that they will continue to mentor and support her. There has been no loss suffered by anyone because of her misconduct. On the other hand Ms Johal has suffered a financial loss of summary dismissal from her employment. The plea which she has made means that there is a public black mark against her and it is appropriate that I give consideration to those matters as well.
4. The result then is that there are grounds for concern about Ms Johal's future given that she was the recipient of the clearest possible warning from the Board of Examiners which might have set her on the right path. Regrettably however this did not happen. Whilst she has entered an early plea and generally admitted her wrongdoing there has been an element of prevarication in the plea and the admission which I think was well identified in Mr Over's cross-examination to which I gave reference earlier. That said however, particularly in light of the dispositions that remain by the New South Wales Tribunal it would be disproportionate to the seriousness of the matter and the lack of loss to client or the State to impose a suspension as advocated by the Commissioner. Again, merely to impose a reprimand I think would be inadequate. If it were not for the degree of ambiguity in the admission and the previous matters that were the subject of appearing before the Board of Examiners I would be tempted to dispose of the matter merely as a matter of reprimand; but I believe when one adds those considerations to the equation that would be an inadequate disposition in itself and without more. Accordingly in my view the proper disposition aside from a costs order to which I made reference earlier, is that the practitioner should be reprimanded for her misconduct and further that she should pay a fine of $3,500.