This matter comes before me by way of a charge brought by the Legal Services Commissioner ("the Commissioner"), against a legal practitioner, namely Michael Peter Rhys Turner ("Turner"), who is a barrister. The charge is one of what could be described as common law professional misconduct brought pursuant to Part 4.4 of the Legal Profession Act2004 ("the Act").
Turner has admitted his guilt, and has done so right from the outset. He has also co-operated both completely and frankly with the Commissioner and with this Tribunal.
The circumstances of his offending are relatively simple. Turner signed a bank guarantee in three places, witnessing it as a legal practitioner, allegedly employed by the Complainant, Mrs F, who is also the guarantor in relation to that document. In essence, he witnessed Mrs F's signature, and certified that he had explained the effects of the guarantee to her and that she appeared to understand it. However, she was not present. The document had been previously signed by Mrs F, allegedly under duress, although this allegation was not known to Turner at the time. What was known to him was that Mrs F was not present when he witnessed her signature and certified as to his status, his advice, and her apparent understanding of the situation.
I accept, and it is not disputed, that Mrs F's now estranged husband, Mr F, was and is a close friend of Turner. Mr F prevailed upon Turner as a legal practitioner, and as a friend, to sign the document in the appropriate places. I accept that this was done in a hurry, that Turner was assured that all was well, and that he had no reason to think otherwise. He signed in the places indicated without reading the relevant contents. He thought he was obliging a friend and, indeed, the friend's wife. The fact remains that, as a legal practitioner, he witnessed an important document capable of very significant consequences in three places, and without the party affected by the document being present or being advised as to the possible consequences. The reality of the matter was that the relationship between the Fs was rocky, and heading towards litigation.
Ms Hannon, on behalf of the Commissioner, summed up Turner's behaviour very accurately. As a legal practitioner, he exhibited gross lack of care and displayed gross dereliction of his professional duty.
In an eloquent plea on his behalf, Mr Walmsley SC drew my attention to many things which could be said in Turner's favour, some of which are now set out.
Turner has practised the law for in excess of 20 years without once being charged with any offence, either criminal or against the Act or its predecessors. Many impressive testimonials as to his character, competence, generosity, honesty and service to the law and to the underprivileged were put before me. I accept their content without reservation. As stated, Turner has been completely frank, fully co-operative and is deeply remorseful.
Then there are the circumstances. I again accept that those circumstances occurred as has been described. What Turner did certainly showed gross lack of care. One could almost see it happening. The good friend urging him to sign in a hurry, here and there, on various parts of the document. Turner, in a social situation, not suspecting anything to be wrong, obliging his friend, and signing the document without reading it. None of this excuses what he did, but what occurred was a gross lack of care shown over a few minutes, rather than some calculated wrong-doing for an improper purpose. Happily, in the end, the guarantee had but a short life and no financial damage was done. That does not excuse the behaviour. The consequences could have been much more serious.
Ms Hannon, on behalf of the Commissioner, has rightly stressed the importance of practitioners behaving properly and maintaining public confidence in the profession, apart from protecting its good name. Legal practitioners should not lightly append their signatures to important documents, particularly in the absence of persons affected by such documents. They should not falsely certify as to advice being given when it was not, or as to the state of the mind of the person affected by the document without having knowledge of such state of mind. That Turner did not read the document does not excuse him. However, as very properly put by Ms Hannon, this is not a case where a penalty under s.4.4.17 of the Act should be imposed.
Bearing in mind all the material in Turner's favour that has been put before me, I have concluded that interference with his practising certificate is not warranted. Pursuant to s.4.4.19, Turner is reprimanded, and is fined the sum of $5,000.00.
I appreciate that, as he has a young daughter and a mortgage, he is subject to financial pressures. Nevertheless, a fine of some significance should be imposed in order to reflect the gravity of the offence. I am also bearing in mind that Turner is agreeing to pay the Commissioner's legal costs, which are in the order of $5,030.00.
I reserve liberty to apply.
Parties
Applicant/Plaintiff:
Legal Services Commissioner
Respondent/Defendant:
Turner
Cases Cited (1)
Legal Services Commissioner v Turner (Legal Practice) [2007] VCAT 1986 (24 October 2007)