Legal Services Commissioner v Maddock

Factual background

1. The Instrument of Consent sets out the following Agreed Statement of Facts: "a. The Respondent was admitted on the Roll of Lawyers of the Supreme Court of the Australian Capital Territory (ACT) on 14 December 2001. b. On 5 September 2007, the Respondent made an application for the grant of a practising certificate to the Council of the Law Society of New South Wales. c. So as to be eligible to make an application for the grant of a practising certificate in New South Wales, the Respondent was required to provide, and provided, the Law Society of New South Wales with evidence of her admission in the ACT. d. On 5 September 2007, the Council of the Law Society of New South Wales granted the Respondent a solicitor's practising certificate. e. On or about 8 February 2012 the Respondent: i) Signed as 'witness' to the purported signature of Ms Fanya Sondakh (Ms Sondakh) on an Enduring Power of Attorney (the EPOA) dated 8 February 2012 whereby Ms Sondakh purported to appoint her husband, Vincentius Herliman (Mr Herliman) as her enduring attorney. ii) Signed a certificate under section 19 of the Powers of Attorney Act 2003 certifying as follows: '1. I explained the effect of this enduring power of attorney to the principal before it was signed. 2. The principal appeared to understand the effect of this enduring power of attorney. 3. I am a prescribed witness. 4. I am not an attorney under this enduring power of attorney. 5. I have witnessed the signature of this enduring power of attorney by the principal.' f. However, the Respondent did not witness Ms Sondakh's signature on the EPOA and did not explain the effect of the EPOA to Ms Sondakh. g. The Respondent admits that: i) She did not meet Ms Sondakh on 8 February 2012 or at any time prior thereto. ii) She did not know Ms Sondakh as at 8 February 2012. iii) Ms Sondakh did not sign the EPOA in her presence. iv) She did not explain the effect of the EPOA to Ms Sondakh. v) She did affix her signature to the EPOA as the witness to Ms Sondakh's purported signature. vi) She did sign the certificate set out [at] paragraph 1(b) above [sic]. h. The EPOA was subsequently registered at the Land Titles Office but not by the Respondent. i. On 4 December 2017 Ms Sondakh signed a Revocation of the EPOA in the presence of the Respondent."
2. The Instrument of Consent is signed by the Applicant and the Respondent. It seeks a finding of professional misconduct and the making of protective orders to the effect that the Respondent be reprimanded, fined and ordered to pay the Applicant's costs as agreed.

Jurisdiction

1. It is not in dispute that these proceedings are governed by the Uniform Law and that the Tribunal has jurisdiction to deal with the matter.

Legislation

1. The Instrument of Consent is formulated on the basis that the Solicitor concedes that she is guilty of professional misconduct. Misconduct of this kind is defined in the Uniform Law by reference to the definition of unsatisfactory professional conduct. The relevant provisions of the Uniform Law (ss 296 and 297) 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;… …
2. Section 144 of the Uniform Law Application Act makes provision for the Tribunal to make consent orders with or without conducting or completing a hearing. For present purposes it is sufficient to set out here subsections (1), (4), (6) and (10): 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. … (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. … (6) The instrument of consent must be filed with the Tribunal. … (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.

Hearing

1. Under s 301(2) of the Uniform Law, subject to any procedural requirements, the Tribunal may determine proceedings without conducting a formal hearing, subject to the rules of procedural fairness.
2. As noted above, s 144 of the Uniform Law Application Act sets out certain circumstances in which the Tribunal may make orders without conducting or completing a hearing. As required by s 144(4), the parties agreed on the terms of an Instrument of Consent which was then filed with the Tribunal on 26 November 2020, meeting the requirements of s 144(6).
3. Having received and considered the parties' signed written submissions and request for an order dispensing with a hearing in this matter, on 30 November 2020, pursuant to s 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), with the consent of the parties, an order was made that a hearing in this matter be dispensed with, and the issues for determination were agreed to be determined by the Tribunal on the written submissions, documents and material provided to the Tribunal by the parties.
4. The parties filed comprehensive written submissions in relation to the conduct of the Respondent which confirmed the agreed facts set out in the Instrument of Consent and also addressed the relevant issues to be considered by the Tribunal and confirmed that there were no contentious or contested issues. The submissions filed on behalf of the Respondent dated 28 January 2021 specifically acknowledged that the Applicant's written submissions dated 15 December 2020 fairly and accurately set out the procedural and factual matters and the legal principles governing the proceedings. There is no dispute between the parties on these matters. The Respondent's submissions also covered the personal circumstances of the Respondent, in particular at the time of the Respondent's conduct, and the applicability of the orders sought by consent.
5. The Tribunal is satisfied that it is not necessary to conduct or complete a hearing in this matter in the public interest. The parties have been afforded the opportunity to make submissions about all aspects of the matter, including the order dispensing with a hearing. Taking into account all the submissions made on behalf of the parties, the parties' written evidence filed, and all other relevant circumstances, as well as the informed consent of the parties, the Tribunal is satisfied that this matter can be appropriately dealt with and determined on the papers provided to the Tribunal.

Consideration and Findings

1. The parties made submissions about the approach to be taken by the Tribunal in considering the making of the consent orders sought as set out in the Instrument of Consent.
2. The relevant approach was discussed in Legal Services Commissioner v Searle [2016] NSWCATOD 23 at [21] by reference to the Administrative Decisions Tribunal's decision in Council of the New South Wales Bar Association v Butland [2009] NSWADT 177. As the Tribunal noted in Searle at [23], the approach in Butland has been followed in subsequent decisions of the Tribunal, including Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152.
3. While the decision in Butland concerned the operation of s 564 of the Legal Profession Act 2004 (NSW) (repealed), this is relevantly in identical terms to s 144 of the Uniform Law Application Act and the principles in Butland continue to apply to Instruments of Consent under s 144 of the Uniform Law Application Act (see for example Council of the New South Wales Bar Association v Hanrahan [2018] NSWCATOD 44 at [83] and, more recently, Council of the Law Society of NSW v Low [2020] NSWCATOD 142 at [68]-[69], where, in both matters, Butland was considered in the context of an Instrument of Consent under s 144 of the Uniform Law Application Act).
4. Relevantly, in Butland (at [29]) the Tribunal observed that the Tribunal does not act, nor should it be seen to act, as merely a "rubber stamp" for agreed positions, however the consents of the parties deserve significant weight. Accordingly, while we have regard to the parties' views and consent in this case, the Tribunal must make its own judgment.
5. The Instrument of Consent filed on 26 November 2020 complies with the requirements of s 144 of the Uniform Law Application Act, providing an agreed statement of facts and being signed by the parties. In addition to the Agreed Statement of Facts, the Tribunal has read and considered the evidence and comprehensive submissions provided by the parties in these proceedings.
6. In particular, the Tribunal has read and considered the affidavits filed by the parties, namely: 1. the Affidavit of John McKenzie affirmed on 20 October 2020 and Exhibit "JM1" to that Affidavit, which provides evidence of the complaint and submissions received during the investigation; and 2. the Affidavit of the Solicitor affirmed on 22 January 2021.

Issues to be determined

1. This Tribunal needs to determine whether, on the evidence presented and admitted to, the Respondent is guilty of professional misconduct (s 302 of the Uniform Law).
2. If we so find, s 302 of the Uniform Law permits us to make any orders that we think fit, including those set out in subsections (1) and (3), and including the orders proposed in the Instrument of Consent.

Did the Respondent's conduct amount to professional misconduct?

1. We find each of the facts set out in the Agreed Statement of Facts in the Instrument of Consent established and proven. The evidence of Mr McKenzie in his affidavit, which is effectively admitted by the Respondent in her 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 her Reply to that Application, also specifically admits the conduct the subject of the complaint and says that she does not dispute the facts set out in it.
2. As noted earlier, professional misconduct is defined in s 297(1) of the Uniform Law (see [8] above).
3. Professional misconduct at common law was identified in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 to be conduct which would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.
4. Rich J in Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563 at [563] observed that professional misconduct involves conduct which amounted to: "a grave impropriety affecting [the practitioner's] professionalism and character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or the public."
5. The New South Wales Court of Appeal noted in Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369 at [44] that "[t]here are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside the generally accepted standard[s] of common decency and common fairness."
6. The Legal Services Commissioner submits that the Respondent's conduct was extremely serious and constituted professional misconduct. At the time she signed as witness to Ms Sondakh's signature, the Respondent knew she had not in fact witnessed Ms Sondakh sign the Enduring Power of Attorney as she had never met the principal at the time the EPOA was signed. Similarly, at the time the Respondent signed the s 19 certificate, she knew she had not "explained the effect of the EPOA before it was signed". Accordingly, the principal could not have "appeared to understand the effect of the EPOA". The Respondent also knew she did not "witness the principal's signature" as stated in the s 19 certificate, as she had never met the principal at the time the certificate was signed.
7. As the Tribunal noted in Council of the Law Society of NSW v Walsh [2018] NSWCATOD 196 (at [9]-[10]): "[9] 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... [10] 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."
8. These very apt comments made in Council of the Law Society of NSW v Walsh are equally applicable in this case. There is no doubt that the Respondent's admitted conduct amounts to a serious and substantial failure to meet reasonable standards of competence and diligence, and therefore clearly falls within the statutory definition of professional misconduct (s 297(1)(a) of the Uniform Law). The conduct would equally "be reasonably regarded as disgraceful or dishonourable by [her] professional brethren of good repute and competency" and therefore falls within the common law definition of professional misconduct (as per Allinson).
9. In The Law Society of New South Wales v Gathercole [2016] NSWCATOD 27 the Tribunal found that the conduct of 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 when he did not, amounted to professional misconduct of a very high degree.
10. Similarly, the New South Wales Court of Appeal in Fraser v The Council of the Law Society of New South Wales [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.
11. A number of other cases to which we were referred by the parties involved false attestations of signatures and false certification and in each case the Tribunal made a finding of professional misconduct: see The Council of the Law Society of NSW v Beverly [2008] NSWADT 251; Law Society of NSW v Martin [2010] NSWADT 245; Council of the Law Society of NSW v Ly [2011] NSWADT 210; Council of the Law Society of NSW v Chau [2011] NSWADT 271; Legal Services Commissioner v Huggett [2017] NSWCATOD 67.
12. We are comfortably satisfied that a legal practitioner who: 1. purports to witness the execution of an Enduring Power of Attorney when the legal practitioner did not see it being executed by the principal; and 2. makes a false certificate under s 19 of the Powers of Attorney Act 2003 (NSW), particularly in circumstances where the legal practitioner has not even met the principal, is guilty of professional misconduct. Either of the circumstances above on their own would in our view amount to professional misconduct. It is very serious misconduct that would usually justify finding that the practitioner is not a fit and proper person to engage in legal practice.
13. The Respondent rightly concedes, in the Instrument of Consent, that this Tribunal would find that the conduct described under the heading "Grounds", and particularised in the Agreed Statement of Facts, amounts to professional misconduct.
14. We accept, as the evidence shows, that the Respondent's conduct was isolated and that she was experiencing personal and medical difficulties at the time. Nevertheless, subjective mitigating circumstances do not influence the objective characterisation of the Respondent's conduct as professional misconduct.
15. 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, or providing false certification that the nature and effect of a document have been explained to a person by a legal practitioner, is dishonourable conduct unbefitting a legal practitioner. It is particularly serious when an Enduring Power of Attorney is involved as in this case. It must be dealt with accordingly. We have no hesitation in finding the Respondent guilty of professional misconduct.
16. It is well-established that the jurisdiction of both the courts and the Tribunal in legal professional disciplinary matters is protective, not punitive. In Law Society of New South Wales v Walsh [1997] NSWCA 185 it was said that 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 disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. We think the same obligation lies on the Tribunal.
17. The Tribunal's power is to be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the profession, which will continue its good reputation. In considering the matter of penalty, we have considered specific deterrence and protection of the public as necessary aims as they relate to the Solicitor and the accompanying aims of general deterrence and education of the legal profession.

Protective orders

1. The principles which apply to the formulation of 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. 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"
2. Having found the Solicitor guilty of professional misconduct, the Tribunal may make "any orders that it thinks fit": Uniform Law, s 302.
3. We noted above that disciplinary proceedings are concerned with the protection of the public and the Tribunal's role is to protect clients and members of the public from harm that could be caused by dishonest, incompetent or non-diligent legal practitioners. The extent of the duty was explained by Beazley JA in Law Society of New South Wales v Walsh [1997] NSWCA 185 at 40. 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 the order 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'..."
4. We have already expressed above the manner in which we categorise 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 practise law.
5. The Solicitor retired from legal practice in April 2018 and she has testified in her Affidavit that she does not intend on returning to practice. Nevertheless, the evidence shows she wishes to preserve the opportunity to practice, with the concession it would need to be under appropriate supervision. The evidence also shows that the Respondent has no other adverse disciplinary finding recorded against her name.
6. In determining the appropriateness of the protective orders sought, we have borne these matters in mind as well as the readiness of the Respondent to concede her misconduct, her insight into her wrongdoing and her expression of remorse and contrition which we accept as having been sincerely made. We must however consider the deterrent effect of any protective order which we make on the conduct of other legal practitioners and the reputation of the profession generally.
7. Accordingly, in our view, subject to the making of an additional order which we outline below, the Instrument of Consent appropriately reflects orders which are commensurate with the circumstances of this case and adequately protect the public interest.
8. The Tribunal has the power to reprimand the Respondent pursuant to s 302(1) and (5) of the Uniform Law. The purpose of a reprimand is to publicly censure relevant misconduct, so as to deter not only the Respondent, but also other lawyers that might be minded to engage in similar conduct, so as to uphold and publicly mark the high standards that lawyers are held to. We are of the view that a reprimand is appropriate in this case. We are conscious that an order of this kind will be given publicity through various channels including the internet and should not be regarded as an insignificant penalty.
9. The Tribunal also has the power to fine the Respondent pursuant to s 302(1)(I) of the Uniform Law. A fine, in the context of disciplinary proceedings, is not punitive. Rather, it serves to act as a deterrent so that professional standards may be upheld. This is consistent with the Tribunal's protective function.
10. In all the circumstances of this case we consider it is appropriate that in addition to a reprimand, a monetary fine should be imposed as agreed in the Instrument of Consent. In accepting to fix the amount of the fine at $2,500 as agreed in the Instrument of Consent, we have considered the cases to which we were referred by the parties as to the appropriate quantum of the fine and we have also taken into account the mitigating circumstances which apply to the Respondent, as well as her exposure to an adverse costs order to which she has rightly agreed.
11. We have also considered the potential need for a supervision order in the event that the Respondent does decide to resume practice in future. While this matter was not addressed in the Instrument of Consent, the parties addressed this question in some additional submissions as requested by the Tribunal. We note that both parties accept that the issue is likely to be taken into account by the Law Society of New South Wales when considering any future practising certificate application by the Respondent. We are of the view that the Tribunal's protective function is sufficiently taken care of by an additional order (not included in the Instrument of Consent) requiring the Solicitor to inform the appropriate regulatory authority of these proceedings in the event that she applies for a practising certificate.

Costs

1. Where a finding has been made that a solicitor has engaged in professional misconduct, in the absence of exceptional circumstances the Tribunal is bound by Schedule 5, clause 23 of the Civil and Administrative Tribunal Act 2013 (NSW) to order costs in favour of the Applicant. The Respondent has rightly agreed to pay the Applicant's costs in this matter.
2. The Applicant has assessed its costs in the sum of $4,500 and this has also been agreed by the Respondent in the Instrument of Consent.

Orders

1. Consequent on the finding of professional misconduct, the Tribunal orders that: 1. the Respondent is publicly reprimanded; 2. the Respondent is to pay a fine of $2,500 within 60 days of the date of this decision; 3. should the Respondent apply for a practising certificate from either the Law Society of New South Wales or the New South Wales Bar Association (or equivalent interstate regulatory authority), she must draw these proceedings to the attention of the relevant authority from which a practising certificate is sought; and 4. the Respondent is to pay the Applicant's costs agreed in the sum of $4,500 by monthly instalments of $200 per month; the first payment to be made within 60 days of the date of this decision and all subsequent payments to be made on or before the first day of each month thereafter until the full amount has been paid.

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: 21 April 2021