NSW Legal Services Commissioner v Zou

NCAT Occupational|2021-08-18

s Bar Association v Asuzu [2011] NSWADT 209 Fraser v The Law Society [1992] NSWLST 6, Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563 Law Society of NSW v Dubler [2018 NSWCATOD 79 Law Society of NSW v Gathercole [2016] NSWCATOD 27 Law Society of NSW v Georgas [2008] NSWADT 82 Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Services Commissioner v Huggett [2017] NSWCATOD 67 Legal Services Commissioner v Wen [2016] NSWCATOD 36 The Council of the Law Society of NSW v Beverly [2008] NSWADT 251 Xu v Council of the Law Society of NSW [2009] NSWCA 430 Texts Cited: Nil Category: Principal judgment Parties: NSW Legal Services Commissioner (Applicant) Jia Hong Zou (Respondent) Representation: Solicitors: Office of the Legal Services Commissioner (Applicant) Stevens Vuaran Lawyers (Respondent) File Number(s): 2021/00011343 Publication restriction: Disclosure of the names of the former client of the Solicitor and the client's former husband is prohibited. These are anonymised in this decision

What this case is about

By an Application for disciplinary findings and orders filed on 14 January 2021 (Application), the NSW Legal Services Commissioner (LSC or Applicant) seeks a disciplinary finding of professional misconduct and related orders in respect of Ms Jia Hong Zou (Solicitor or Respondent) who at all material times was an Australian legal practitioner within the meaning of s 6 of the Legal Profession Uniform Law (NSW) (Uniform Law). The Respondent was admitted as a solicitor on 23 August 2013 and has held a practising certificate since 5 October 2013. Prior to her admission as a solicitor, the Respondent practised as a registered migration agent from early 1998.

Grounds of Complaint and Orders sought

The Applicant seeks disciplinary findings and orders against the Solicitor on the ground that the Solicitor falsely purported to witness the signature of her client on an e-affidavit dated 18 January 2018 when the client had not affixed her signature on the said document in the presence of the Solicitor.
The Application seeks the following findings and orders: 1. a finding that the Solicitor has engaged in professional misconduct; 2. in the alternative, a finding that the Solicitor has engaged in unsatisfactory professional conduct; 3. a reprimand; 4. a fine of $3000 to be paid within 60 days of the Tribunal's decision; and 5. costs as agreed or assessed.
On 25 February 2021, the Respondent filed a Reply which admits the ground of complaint in the Application (set out below), as well as each particular subject to some additional comments and particulars provided in the Reply and referred to below.

Factual background and parties' contentions

On 22 December 2017, Ms XY attended the Solicitor's office and instructed her to prepare a joint divorce application with her husband Mr AB.
On 27 December 2017, the Solicitor met Ms XY in her office. On the same day, Ms XY signed a first version and a revised version of an "Affidavit of applicant/s" (as part G of the Application for Divorce) in the presence of the Solicitor, as well as a retainer agreement.
On 5 January 2018, the Solicitor emailed the divorce application to Mr AB.
Mr AB attended at the Solicitor's office on 11 January 2018 and signed the affidavit (at part G of the Application for Divorce) in the presence of the Solicitor. The Solicitor dated the affidavit 11 January 2018.
The Respondent subsequently prepared a document "Affidavit for efiling application (divorce)" (the e-affidavit).
On 17 January 2018, the Solicitor emailed the e-affidavit to Ms XY (who the Respondent knew was then overseas) and Mr AB stating: "[Ms XY] Please sign on page 1 under the column "Full name of Wife" and scan and email me the signed form. I will then email it to [AB]. Better still, if you can email [AB] and cc me in your email. [Mr AB] Please sign on page 1 under the column "Full name of Husband", scan and email me the form signed by both of you. I will then complete this form and make payment on your behalf today."
On 18 January 2018, the Solicitor received the emailed e-affidavit that had been signed by Ms XY overseas.
The Solicitor compared the signature of Ms XY on the e-affidavit against her previous signatures on the two versions of the affidavit dated 27 December 2017.
The Solicitor was of the view that Ms XY's signature was identical to her previous signatures that the Solicitor had witnessed.
The Solicitor signed as witness to Ms XY's signature and dated the e-affidavit 18 January 2018.
At the time the Solicitor signed as witness to Ms XY's signature on the e-affidavit, she knew (or ought reasonably to have known) that Ms XY did not sign the e-affidavit in her presence.
Mr AB attended the Solicitor's office on 18 January 2018 and affixed his signature to the e-affidavit in the Solicitor's presence. The Solicitor signed as the witness to Mr AB's signature and dated the e-affidavit 18 January 2018.
On 19 January 2018, the Respondent completed the online divorce application and filed the application and the e-affidavit with the Family Court.
On 18 May 2018, the Family Court made final divorce orders.
On 16 April 2019, Ms XY lodged two complaints with the Office of the Legal Services Commissioner about the conduct of the Solicitor, which were investigated by the LSC. The second complaint was dismissed by the LSC.
Following that investigation, the LSC was satisfied that the allegation made in the first complaint was substantiated and that the Solicitor may have engaged in professional misconduct and/or unsatisfactory conduct more appropriately dealt with by the Tribunal and on 14 January 2021 the Application was filed setting out the ground of complaint and orders sought (as per paras 4 and 5 above).
The factual basis for the Application is not in contention in these proceedings and the Solicitor has made certain admissions and concessions as to her conduct.
It is common ground that the "Affidavit of applicant/s" signed twice on 27 December 2017 by the client, Ms XY, and subsequently by the client's former husband, Mr AB, was properly and correctly witnessed by the Solicitor.
The Solicitor admits the particulars of the complaint and says further that that: 1. the preparation of the e-affidavit occurred in circumstances where, because of the Solicitor's lack of familiarity with the detail of Family Court forms (and the fact that the documentation was being prepared between Christmas and New Year) the Solicitor formed the view that the "Affidavit of Applicant/s" signed by the client on 27 December 2017 was not in a form which was suitable for e-filing; 2. the e-affidavit otherwise did not differ in any material particular from the "Affidavit of Applicant/s" signed by the client on 27 December 2017 which had been signed by the client in the Solicitor's presence and had been duly and correctly witnessed by the Solicitor; and 3. the Solicitor subsequently became aware that if she had filed that "Affidavit of Applicant/s", it is likely that that original correctly witnessed "Affidavit of Applicant/s" would have been accepted by the Family Court for e-filing.
The Solicitor admits that she knew that the client did not sign the e-affidavit in her presence. She says that she understood at the time that the purpose of witnessing the signature was to ensure that the signature was not forged or otherwise fraudulent. In accordance with that understanding (and what the Solicitor contends was her honestly held belief, on reasonable grounds, that the client's signature was not forged or otherwise fraudulent) she represented that she had "witnessed" the client's signature.
The Solicitor says further that she did not intend to mislead the Family Court by filing the e-affidavit and did not appreciate at the time that the e-affidavit was filed (although she appreciates now) that the filing of the e-affidavit was capable of misleading the Family Court. She also says that the matters she has admitted in relation to the "witnessing" of her client's signature on the e-affidavit were not operative matters in relation to the orders made by the Family Court.
In response generally to the complaint, the Solicitor says that she did not understand that in order to properly and correctly witness a signature on the e-affidavit, the witness must observe the signature being placed upon the document and she did not appreciate at the time (although she does appreciate now) that there was anything improper about her conduct in representing that she had "witnessed" her client's signature on that document.
The Solicitor says that the client's former husband's signature on the e-affidavit was duly and properly witnessed by her and this is accepted by the LSC.

Jurisdiction

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

Legislation

The Application seeks a finding that the Solicitor is guilty of professional misconduct or, in the alternative, unsatisfactory professional conduct. The Solicitor disputes that but concedes that she is guilty of unsatisfactory professional conduct.
Professional misconduct 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;… …

Hearing and s64 Order

A hearing of the Application took place before us on 18 August 2021.
At the hearing before us, Mr A Matalani appeared for the LSC and Mr A Macinnis appeared for the Solicitor.
At the start of the hearing, the LSC submitted, and the Solicitor agreed, that an order should be made under s 64 of Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) restricting the publication of the names of the complainant (Ms XY) (the client of the Solicitor) and her former husband (Mr AB). The names of those individuals are not anonymised in the evidence provided by the parties in these proceedings. We agreed that it is desirable that such an order be made and accordingly, made that order. Any finding and protective order required to be made concerning the Solicitor's conduct can be made without the need to identify those individuals.

Evidence

The Legal Services Commissioner tendered without objection the Affidavit of John McKenzie affirmed on 12 January 2021 (including Exhibit JM1 to that affidavit) (collectively Exhibit A).
The Solicitor tendered without objection the Affidavit of Jia Hong Zou (the Respondent) sworn on 2 July 2021 (Exhibit 1).
The parties also both filed written submissions on which they rely, including from the Applicant, written submissions in reply.
At the hearing the parties made oral submissions and the Solicitor was cross-examined and also answered questions from the Tribunal.
In addition to the submissions filed in support of the Application made by the LSC and orders sought, the Tribunal asked the parties to address the possibility of an order being made for the Solicitor to undertake professional development in the form of an ethics course. The parties addressed that at the hearing.

The Parties' Positions and Submissions

The LSC submits that the evidence contained in the Exhibits should satisfy the Tribunal that the Solicitor has been guilty of professional misconduct and that the protective orders set out earlier, namely a reprimand, a fine of $3000 and an order for costs, are appropriate in the circumstances. The LSC also supports an order for further study if the Tribunal is minded to make such an order.
The parties essentially agree that the main issue in dispute in this case is a legal question: namely whether in the circumstances, the Solicitor's conduct in signing a document as a witness when she did not see the signatory sign (and her understanding at the time of signing, as to the meaning of the word 'witness' and what she was doing) constitutes professional misconduct or the less serious unsatisfactory professional conduct.
The Applicant's position is that the Solicitor's admitted conduct (and her understanding at the time) went beyond "falling short" of expected standards (ie beyond the definition in s 296) and instead demonstrates a "substantial failure" to reach or maintain a "reasonable standard" of competence and diligence (per s 297 (1)(a)). The Applicant submits that the words on the affidavit that was signed provided specific instructions to the deponent and also used the words "Before me (signature of witness)". Even without those instructions, the Applicant submits that the concept of "witnessing" a document is so basic and fundamental to legal practice, that the Respondent's understanding and belief (having been admitted for more than 4 years) demonstrates that substantial failure in doing what she did.
Further or in the alternative, the Applicant submits that the concept of 'witnessing' a document is so basic and fundamental to all aspects of legal practice, that the Solicitor's conduct would "be reasonably regarded as disgraceful or dishonourable by [other lawyers] of good repute and competency", and therefore falls within the common law definition of professional misconduct (per Allinson v General Council for Medical Education and Registration [1841] 1 QB 750).
The Applicant cites the observations made by the Court of Appeal in Bechara v Legal Services Commissioner [2010] NSWCA 369 (at [44]): 'there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside "generally accepted standard[s] of common decency and common fairness"'.
The Applicant's alternative position is that if the Tribunal does not find the misconduct amounts to professional misconduct, the Tribunal should find the Solicitor's conduct amounts to unsatisfactory professional conduct.
The Solicitor submits that the conduct falls short of constituting professional misconduct. She accepts that her conduct is unsatisfactory professional conduct as defined in s 296 of the Uniform Law as set out above, and relies on Xu v Council of the Law Society of NSW [2009] NSWCA 430 to support her submission that her conduct cannot be characterised as professional misconduct.
In support of her position, the Solicitor submits that: 1. prior to the conduct which gives rise to the present proceedings, she had correctly witnessed her client's signature on a Family Court form; 2. she was assisting her client during a period when her office was closed for Christmas (with the consequence that she was unable to obtain assistance from the solicitor in her firm whose knowledge of the Family Court's e-filing processes was more detailed and up-to-date than the Solicitor's knowledge of those processes); 3. because of her unfamiliarity with the e-filing process used by the Family Court, she subsequently formed the view that the form which she had used and which she had witnessed the client sign on two occasions (and both copies of which bore the client's correctly witnessed signature) would not be accepted for filing because it was the wrong form in that it was not in the form of an e-application; 4. she subsequently became aware that the correctly witnessed form would, in fact, have been accepted for filing by the Family Court, with the consequence that the conduct which gives rise to these proceedings would not have occurred if she had been able to obtain the assistance of the practitioner within her firm whose knowledge of the Family Court's e-filing processes was more detailed and up-to-date than her knowledge; 5. by the time the she formed the view that she had obtained a correctly witnessed signature from her client on the wrong form, the client was overseas; 6. the document filed with the Family Court replicated a document which had been correctly witnessed by her; 7. there is no suggestion that the signature which the client placed on the document which was submitted to the Family Court was a forgery; and 8. she did not gain any benefit, and neither her client nor any other party suffered any loss, or was put at risk of any loss, by reason of the false attestation. Further, there is no evidence that any person or entity was induced to do any act relying on the truth of the false attestation which they would not have done had the correctly witnessed affidavit been filed with the Family Court (rather than the subsequent e-affidavit which was falsely attested).
The Applicant accepts that the Solicitor honestly understood at the time she represented she had witnessed her client's signature on the e-affidavit that the purpose of witnessing that signature was to ensure the signature was not forged or otherwise fraudulent. The Applicant submits that the Respondent's understanding of the purpose of witnessing a signature was fundamentally flawed or incomplete and, even in light of an honest belief that her client's signature was not forged or fraudulent, resulted in conduct on her part which demonstrated a substantial failure to reach or maintain a reasonable standard of competence and diligence, regardless of her experience in Family Law at the time.
The Solicitor submits that her conduct was similar to the conduct in Xu v Council of the Law Society of NSW [2009] NSWCA 430 and that, consequently, she has engaged in unsatisfactory professional conduct but not professional misconduct.
The Applicant on the other hand, submits that the Court of Appeal's decision in Xu is to be distinguished.

Consideration by the Tribunal

The Tribunal has carefully considered all the evidence and the submissions made by the parties.

Issues to be determined

There is no factual dispute between the parties and the only matters that require formal determination are: 1. Whether the Solicitor's admitted conduct should properly be categorised as professional misconduct or unsatisfactory professional conduct; and 2. The nature of the orders that we should make.
We must determine whether, on the evidence presented in this case and the submissions made, the Solicitor is guilty of professional misconduct, or alternatively unsatisfactory professional conduct (s 302 Uniform Law).
If we make a finding that the Solicitor is guilty of professional misconduct, s 302 permits us to make any orders that we think fit. That section relevantly provides that the Tribunal may make orders including any of the orders that a local regulatory authority can make under s 299 of the Uniform Law. Section 299 permits us to make orders, among others, issuing a Solicitor with a reprimand (s 299(1)(b)), requiring payment of a fine (s 299(1)(f)) and requiring the Solicitor to undertake training or education (s 299(1)(e)).

Did the Solicitor's conduct amount to professional misconduct or was it rather unsatisfactory professional conducted as admitted by the Solicitor?

The evidence of Mr Mackenzie in his affidavit (Exhibit A), which was admitted by the Solicitor during the hearing, establishes the particulars of each ground of complaint pleaded in the Application. At the hearing, the Solicitor also specifically admitted the conduct particularised in the grounds of complaint and indicated that she does not dispute the facts relied on by the LSC.
As noted, the conduct of the Solicitor that is the subject of the complaint giving rise to the present proceedings is not in issue. What is in dispute is the characterisation of the conduct.
As noted earlier, professional misconduct is defined in s 297(1) of the Uniform Law (see para 32 above). The concept of "professional misconduct" includes unsatisfactory professional conduct "where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard and diligence".
The major issue in this case turns on the distinction between conduct which is merely a failure to reach or maintain a reasonable standard of competence or diligence and conduct which involves a "substantial" failure of that kind.
In cases of false certification or false witnessing it is usual to make a finding of professional misconduct. See for example, Fraser v The Law Society [1992] NSWLST 6, Law Society of NSW v Georgas [2008] NSWADT 82, The Council of the Law Society of NSW v Beverly [2008] NSWADT 251, Council of the Law Society of NSW v Ly [2011] NSWADT 210, Council of the Law Society of NSW v Chau [2011] NSWADT 271, Council of the Law Society of NSW v Martin [2012] NSWADT 22, Council of the Law Society of NSW v Orford [2016] NSWCATOD 22, Law Society of NSW v Gathercole [2016] NSWCATOD 27, Council of the Law Society of NSW v Mahony [2017] NSWCATOD 1, Legal Services Commissioner v Huggett [2017] NSWCATOD 67 and, more recently, Law Society of NSW v Dubler [2018 NSWCATOD 79 and Council of the Law Society of NSW v Walsh [2018] NSWCATOD 196. These cases are relied on by the Applicant.
The Solicitor relies on the decision in Xu which overturned a finding of professional misconduct and substituted a finding of unsatisfactory professional conduct. However the submissions made by the Solicitor to support her argument, proceed on the erroneous basis that there was a false attestation charge in that case relating to the witnessing by Mr Xu of the signature of his client's wife, when he admitted not having seen her sign the contract in question. The facts in Xu show that the solicitor in that case saw his client sign the contract and that signature was properly witnessed. Subsequently another signature was placed on the contract (purportedly that of the wife). It was not alleged that the solicitor had purported to witness that second signature. The gravity of Mr Xu's conduct was that he failed to check the contract after he learned that the client's wife had signed it. Indeed, the charge against the solicitor was that he failed to witness the wife's signature on the contract or at least failed to point out it had not been witnessed. By this failure, Mr Xu 'held out that he had witnessed' the wife's signature (Xu at [40] and [41]). There was no suggestion that the wife's signature was already on the contract when Mr Xu signed as 'witness' (which is the case in the matter before us). The Court of Appeal did not appear to consider Xu to be a false witnessing case. Xu is therefore distinguishable on its facts.
Given these distinguishing features, it cannot be said as the Solicitor has submitted, that Xu precludes a finding of professional misconduct in these proceedings. Such a finding is open to us if we decide all the facts and circumstances justify such a finding.
Whether we do characterise the misconduct of the Solicitor as professional misconduct or rather the less serious unsatisfactory professional conduct involves the exercise of a value judgment taking into account the statutory definitions, what those definitions mean and all the circumstances that pertain to the specific conduct of the Solicitor. In saying this, we are conscious that neither of the statutory definitions (in sections 296 and 297 of the Uniform Law) is expressed to be exclusive of the behaviours or conduct which might be so characterised. Characterising the particular conduct involves an assessment by the Tribunal of the conduct in its particular factual context and on its merits and accordingly, our decision must ultimately depend on our assessment of the particular facts and circumstances of this case taking into account the relevant authorities. Our determination will necessarily involve a subjective evaluation and a question of fact and degree.
We must make any finding of professional misconduct or unsatisfactory professional conduct (based on our assessment of the evidence) to the standard recommended in Briginshaw v Briginshaw and Anor [1938] 60 CLR 336 where Dixon J (as he then was), noted firstly, at 361 that: "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality."
His Honour then discussed the dichotomy between the criminal and civil standards of proof and went on to expound what has become known as the "Briginshaw standard": "[A]t common law….. it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
With respect to the meaning of the word "substantial" in s 297(1) Uniform Law, in Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 Meagher J, with whom Leeming JA and Simpson J agreed (see [29] and [30]), stated (at [22]) with reference to the definition of professional misconduct in s 497(1)(a) of the Legal Profession Act 2004 (NSW) (repealed) (which is relevantly in identical terms to s 297(1)): "The distinction made by that definition is between conduct which involves a "substantial" failure to reach or maintain the required standard and conduct which involves a "consistent" failure to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer's competence and diligence and thereby warrant the description "substantial".
In Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209 (at [49] - [51]), the Tribunal, by reference to earlier case law, adopted the view that 'substantial' in the context of misconduct, means a failure to meet the requisite standard in a way that is meaningful or relevant to the practitioner's ability to practise law.
In the High Court decision in Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563, Rich J said that a charge of professional misconduct was enough if it amounted to grave impropriety affecting professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, clients or the public.
The Solicitor's evidence is that she "considered it was sufficient to satisfy the requirement of 'witnessing' [her client's] signature for [her] to compare the facsimile copy of the signature which [her client] emailed to [her] with the signature which [she] had seen [her client] place upon the affidavit which she did actually sign in front of [her] on 27 December 2017" (Exhibit 1 para 15). During her cross-examination at the hearing the Solicitor demonstrated that she did understand what was required to properly witness a signature and in fact had that understanding at the relevant time in 2018, but she had a mistaken belief about the nature of the e-application and the requirements for the divorce e-affidavit.
In the statutory declaration the Solicitor provided to the LSC as part of its investigation of the complaint in 2019 (Exhibit A (pp 84-87), the Solicitor says she had contacted her client on 17 January 2019 and "told her that she needed to go to the Australian Embassy […] to sign the affidavit for eFiling application" (para 21). She goes on to say that in response, her client "said she signed twice in my presence and she begged me to witness her signature and said I could use her past signatures".
Among the factors the Solicitor says led her to agree to do that was the pressure which she felt from the client for whom she wanted to do the right thing and her unfamiliarity with the administrative filing processes of the Family Court (Exhibit 1 para 19).
Pressure from clients and embarrassment are not and cannot be excuses for lapses in compliance by lawyers with their professional conduct obligations and should not affect the way a solicitor's conduct is characterised. Lawyers must "scrupulously and fearlessly [uphold their ethical obligations] from day one" (Legal Services Commissioner v Wen [2016] NSWCATOD 36 at [30]). Courts rely on lawyers and the documents submitted by them (including representations that the lawyer has properly witnessed a signature on an affidavit.).
The actions of the Solicitor in the way she 'witnessed' her client's signature on the e-affidavit certainly fell short of the standard of competence and, particularly in this case, the diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. There is a 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 sign the document. A competent and diligent legal practitioner should not allow herself or himself to depart even momentarily from observing professional standards no matter the circumstances. Nonetheless, the conduct of the Solicitor was not in our view, deliberate false attestation nor was it recklessly indifferent to the consequences of such conduct. Further, there is no evidence that conduct of the kind that founds the present complaint reflects errors or omissions occurring in any other aspect of the Solicitor's practice. This was an isolated lapse. Indeed on the evidence presented, the other earlier signed copies of the divorce application were properly witnessed by the Solicitor, as was the signature of the husband.
The circumstances of this case are considerably different from the false attestation cases cited above. Some of those cases involved multiple counts, each involved an element of dishonesty and in many of the cases, the legal practitioner who knowing what they were doing, allowed a fraud to occur. All of these cases were of greater seriousness, viewed overall, than this case, providing the basis for the Tribunal's finding of professional misconduct. It is difficult to see how we could draw a similar conclusion in this case, especially in circumstances in which the Solicitor's honesty has been accepted by the Applicant. We accept that at the time she did not know what she was doing was wrongful conduct. The nature and consequences of enabling fraud were not present.
We have already stated that each case must be determined on its own facts and merits as each case has its own unique circumstances, and we are of the view that the facts in this case are such that this matter can be distinguished from the quoted line of false attestation cases. While a finding of dishonesty is not required before conduct can be characterised as professional misconduct (see for example, Council of the Law Society of New South Wales v Fisher [2021] NSWCATOD 73 and Council of the Law Society of NSW v Hunter [2021] NSWCATOD 22), the absence of dishonesty can be a factor influencing the assessment of the gravity of the conduct.
We are satisfied that the nature and extent of the misconduct of the Solicitor in this case is not indicative of gross failure to observe professional standards or grave impropriety in the sense of that outlined in Kennedy. In our view, in these circumstances, the Solicitor's conduct cannot be described as a 'substantial' failure to reach or maintain a reasonable standard of competence and diligence. It also cannot be viewed as 'substantial' in the sense adopted in Asuzu in that while the conduct was a failure to meet the requisite standard of competence in witnessing the e-affidavit, in our assessment it was not a failure that is meaningful or relevant to the Solicitor's ability to practise law.
The Solicitor's misconduct was confined to a single departure from expected standards as it occurred on one occasion only and it needs to be considered in the specific context in which it occurred, namely after the Solicitor had already properly twice witnessed the client signing, within the space of a few weeks, what was effectively exactly the same application. In those circumstances the Tribunal accepts that the Solicitor incorrectly believed that her 'witnessing' the signature on the e-affidavit was akin to 'verifying' that the signature was not forged or fraudulent. In those circumstances, it is open to us to view the Solicitor's conduct as less serious than what might otherwise have been the case had the Solicitor not already properly witnessed the client's signature on the same divorce application.
The significant factors referred to above contribute to our already expressed view that this case is different from the vast majority of cases of false attestation, where the common factual position was that the legal practitioner was well aware that by falsely witnessing a signature, the practitioner was engaging in misconduct.
We are therefore not satisfied to the Briginshaw standard that the Solicitor's conduct was substantial misconduct and consequently we are not satisfied that the Solicitor's conduct constituted professional misconduct. The conduct complained of is of a serious nature and what the Solicitor did is regrettable, as she has acknowledged, but it cannot in the circumstances be properly characterised as professional misconduct.
In the Solicitor's favour is her evidence, which is accepted, that she thought 'witnessing' in respect of the signature on the e-affidavit meant 'verifying' and that she had previously witnessed her client's signature on an application in the same divorce proceedings on two occasions and compared the signature she received on the e-affidavit against those signatures to 'verify' its authenticity. The Solicitor emailed the document directly to her client who called her upon receipt. After a discussion the client emailed the signed document directly to the Solicitor, thus making it very unlikely that it had not been signed by the client. Also in her favour is that the Solicitor had also properly witnessed the client's former husband's signature on the original divorce application and on the e-affidavit. This is not in dispute. None of the cases to which we were referred involved facts similar to those.
Also significant in our consideration and assessment when characterising the conduct is the fact that the LSC accepted that the Solicitor did not know the course of action she took to witness the facsimile signature was improper. The LSC expressly accepted that the Solicitor's conduct resulted from a mistaken understanding of the requirements of witnessing with respect to the e-affidavit.
The Solicitor's admitted conduct (and her understanding at the time) "fell short" of "expected standards" and constitutes unsatisfactory professional conduct for the purposes of s 296 of the Uniform Law in that it was conduct occurring in connection with the practice of law that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. In all of the particular circumstances of this case, the Solicitor's conduct cannot however be said to demonstrate a "substantial failure" to reach or maintain a reasonable standard of competence and diligence, within the meaning of s 297(1)(a) Uniform Law. We note that our decision would most likely have been different had the Solicitor not already have properly witnessed the client's signature on what can be regarded as essentially the same application, with the same effect, on two occasions within a few weeks.
We also do not believe that the Solicitor's conduct in these particular circumstances would "be reasonably regarded as disgraceful or dishonourable by [her] professional brethren of good repute and competency" (per Allinson). For the reasons outlined above, we do not believe the Solicitor's conduct in this case was either 'disgraceful' or 'dishonourable' in the relevant sense. We are satisfied that this isolated lapse by the Solicitor does not fall within the common law definition of professional misconduct.
The evidence before us also leads us to form the view that it is unlikely that the Solicitor would err in the same manner again. We take into account her experience; that her misconduct was an isolated departure from proper professional standards, and that she has acknowledged that her conduct was improper.
The Tribunal accepts that the Solicitor's misconduct can also be attributed to her wishing to help her client in circumstances where she misunderstood what was required in witnessing the divorce e-affidavit in an area of legal practice where there were procedures with which she was unfamiliar and in circumstances where she had properly witnessed her client sign what was in substance (if not totally in form) essentially the same document twice, a short time before. The evidence shows that she has taken steps within her firm to ensure she does not put herself in the same position again.
Witnessing documents is a fundamental aspect of legal practice and a failure to do so properly whatever the circumstances, requires a significant sanction and this is reflected in the protective orders we make as outlined below.

Protective orders

It is well-established that the jurisdiction of both the courts and this Tribunal in legal professional disciplinary matters is protective, not punitive.
In considering the matter of penalty in this matter, we have considered specific deterrence and strengthening of the ethical integrity of the Solicitor and the protection of the public as necessary aims and the accompanying aims of general deterrence and education of the legal profession.
Having found the Solicitor guilty of unsatisfactory professional conduct, the Tribunal may make "any orders that it thinks fit" (Uniform Law s 302).
The principles which apply to the formulation of what may be 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 where 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".
The Solicitor appears to have cooperated fully with the Legal Services Commissioner in this matter. The evidence shows that she provided comprehensive, timely and frank admissions as to the conduct and admitted the misconduct at the first available opportunity. In the circumstances, she was entitled to argue the conduct in question was unsatisfactory professional conduct rather than professional misconduct. We note that the Legal Services Commissioner sought conduct findings in the alternative marking that the characterisation of the conduct in this case was not clear cut.
To her credit, the Solicitor has acknowledged that her conduct was behaviour inconsistent with the ethical principles to which a lawyer is bound. She has expressed remorse and now appears to understand why her conduct was inappropriate. As mentioned earlier, there were no adverse consequences in relation to the divorce application.
The evidence also shows that the Solicitor has held a practising certificate for over 7 years and has no other adverse disciplinary finding recorded against her name.
Consistent with our reasons for finding that the Solicitor is guilty of unsatisfactory professional conduct, and the fact we believe the conduct is of the more serious kind than many instances where unsatisfactory professional conduct is found, the reprimand sought by the Applicant in the circumstances of this matter seems to us to be an appropriate and proportionate disciplinary order. It is one accepted by the Solicitor. We propose to make an order accordingly.
We are also satisfied the Solicitor's conduct merits a fine and it is appropriate in these circumstances to impose a fine In all the circumstances it was submitted by the Applicant (and accepted by the Solicitor) that a fine in the amount of $3000 (payable within 60 days of the relevant order) is appropriate. We are satisfied that the imposition of a fine and the amount of the fine are appropriate in all the circumstances of this case. While we have made a finding of unsatisfactory professional conduct in this matter rather than the more serious professional misconduct, the imposition of this fine in addition to a reprimand reflects the Tribunal's disapprobation of this conduct and it should serve as a general deterrence which is a significant and important aspect of public protection.
It is also appropriate to impose a requirement that the Solicitor undertake further professional development in ethics. One of the objectives of the Uniform Law is to ensure legal practitioners are competent and maintain high ethical and professional standards in the provision of legal services (s 3(b)). Successful completion of an appropriate course of further study in ethics will help meet this objective in this case.

Costs

The provisions of clause 23 of Schedule 5 of the NCAT Act make clear that the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs unless the Tribunal is satisfied that exceptional circumstances exist.
The Solicitor submits that if the Tribunal finds that her conduct amounts only to unsatisfactory professional conduct, such finding should give rise to an order that the LSC should either pay her costs, or, alternatively be deprived of the benefit of an order under cl 23(1) with the effect that each party will pay their own costs of the proceedings.
She submits that if she successfully establishes that her conduct amounts only to unsatisfactory professional conduct, there would be "exceptional circumstances" justifying departure from the usual rule as to costs in relation to professional disciplinary matters in the Tribunal for the following reasons: 1. a finding of unsatisfactory professional conduct (together with a reprimand and a fine) could have been imposed by the LSC under section 299 of the Uniform Law. That would have resulted in considerable savings to the public purse in relation to the time and resources of both the LSC and the Tribunal; 2. the Solicitor's willingness to accept a fine and a reprimand was clearly expressed to the LSC prior to the referral of the matter to the Tribunal; 3. even in the event that the LSC considered that the matter involved a finding of unsatisfactory professional conduct which should more appropriately be dealt with by the Tribunal, the matter could have been resolved by an instrument of consent (again, with considerable savings to the time and resources of both the LSC and the Tribunal). However, the LSC's unwillingness to accept a finding of unsatisfactory professional conduct (despite the Solicitor's agreement with the LSC's other proposed orders) compelled the Solicitor to have the matter referred for hearing.
The Applicant submits that the LSC is under no obligation to make orders under s 299 and arguably has a duty to bring appropriate conduct before a Tribunal, including unsatisfactory professional conduct that 'would be more appropriately dealt with' by the Tribunal (s 300(1)(a) Uniform Law). Further, the Applicant submits that even if this matter had proceeded by way of an instrument of consent, the matter would still have had to have been brought to the Tribunal and the Tribunal needed to be satisfied about the appropriateness of any consent orders.
More importantly, clause 23(3) of Schedule 5 of the NCAT Act relevantly provides that a costs order of the kind being sought by the Solicitor in her favour can only be made if the Tribunal is "satisfied that the lawyer did not engage in unsatisfactory professional conduct […] and the Tribunal considers that special circumstances warrant […] the orders". Section 303(3) of the Uniform Law is in similar terms.
The Solicitor is therefore not entitled to a costs order against the LSC as the Tribunal has made a finding of unsatisfactory professional conduct.
The Tribunal has recently considered the costs implications of partial success and partial failure in a legal disciplinary matter in Council of the Law Society of NSW v Batalha [2020] NSWCATOD 158 (22 December 2020). The decision establishes that the partial success and partial failure of the regulator can amount to "exceptional circumstances" for the purposes of clause 23(1) (see paragraphs [92] to [94]). However the 'exceptional circumstances' in that case arose from allegations being withdrawn or dismissed, making that case distinguishable from the present case.
In our view, a dispute about the proper characterisation of conduct is not 'exceptional' or indeed even unusual. There was a real question to be tried in this case having regard to the conflicting positions of the parties, the relevant authorities and the public interest in properly characterising the conduct in the particular factual context of this case.
No exceptional circumstances exist and accordingly, the Solicitor must pay the Applicant's costs.

Finding and Orders

Pursuant to s 64 of the NCAT Act, the Tribunal has ordered that disclosure of the names of the former client of the Solicitor and the client's former husband is prohibited.
The Tribunal finds that the conduct of the Solicitor particularised in the Application as admitted to and explained in the Reply, amounts to unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law.
Consequent upon that finding, the Tribunal orders that: 1. The Solicitor is reprimanded. 2. The Solicitor pay a fine of $3000 to be paid within 60 days of the Tribunal's decision. 3. The Solicitor must undertake further education in the following terms: 1. the Solicitor is to undertake, complete and pass, at her own expense, within 12 months of the date of the orders made by the Tribunal (and during which the Solicitor holds a practising certificate) (the Time Period), a course in ethics that is approved by the Legal Services Commissioner in consultation with the Director, Legal Regulation of the Law Society of New South Wales (Director) and therein achieve a pass mark of not less than 65% (Pass Mark); 2. the Solicitor shall, within seven (7) days of receipt of notification of the result of her participation in the course, provide to the Legal Services Commissioner, the original of such notification and a copy to the Director; 3. should the Solicitor fail to achieve the Pass Mark in the course, she shall complete such further course (in which she may not have achieved the Pass Mark) as approved by the Legal Services Commissioner in consultation with the Director until such time as she achieves the Pass Mark in the course within the Time Period; and 4. if, at the end of the Time Period, the Solicitor has failed to achieve the Pass Mark in the course, any Practising Certificate then held by her shall be suspended until such time as she achieves the Pass Mark in the course and should she then not hold a Practising Certificate, no further Practising Certificate shall be issued to her until she achieves the Pass Mark in the course. (4) The Solicitor pay the Applicant's costs as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 07 September 2021

Legal Profession Act 2004(NSW)

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Judgment (16 paragraphs)

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