ublication of the identity of the Respondent as a party to these proceedings and of any information tending to reveal his identity is prohibited, in accordance with orders made in the proceedings on 19 October 2023
[2]
Summary
These are legal disciplinary proceedings, which were instituted by the Council of the Law Society of New South Wales ('the Law Society') seeking findings and orders under the Legal Profession Uniform Law (NSW) ('the Uniform Law'), based upon a complaint in relation to a solicitor (the Solicitor). In accordance with an interlocutory order made by the Tribunal in the proceedings, the Solicitor's identifying particulars are not to be disclosed, save in respect of limited circumstances as set out in that order, and as recently varied by consent. Consequently, the Solicitor has been assigned the pseudonym FZK.
More than a decade ago, whilst enmeshed in significant family disharmony, the Solicitor prepared a will for a member of his family and took it to them to consider and execute. After the will was, prematurely, executed in the absence of the Solicitor or the necessary two witnesses, the Solicitor procured false attestations to the will by people unrelated to the family. That is, the Solicitor arranged for those two people to "witness" the will, despite them not having seen it be executed by the testator. For ease of reference, we will describe that as 'the conduct'. The Solicitor admits he knew at the time that what he did when engaging in the conduct was wrong.
Despite that, there is no suggestion that the will was not actually signed by the testator, or that the Solicitor would have obtained any unintended benefit under the will if had it, in due course, been admitted to probate and administered. The substance of the complaint does not go beyond the conduct we have described. There is no allegation by the Law Society that the Solicitor has otherwise engaged in improper conduct, before or since. On that basis, we should treat the conduct as an isolated event.
The conduct would have been inappropriate irrespective of the nature of the document in question. However, it cannot be overlooked that a will is a document of particular importance and solemnity. That is reflected by the stringent requirements in respect of its execution and attestation: Succession Act 2006 (NSW), s 6. As a result, any legal practitioner involved in the preparation and execution of a will should have a heightened sense of focus and obligation to ensure the necessary requirements are observed.
The parties are agreed that the conduct constitutes professional misconduct. We accept that characterisation. The parties are also largely in agreement about the protective orders that should be made because of that finding, in that their common position is that the Solicitor should be reprimanded, fined, and ordered to undertake a form of targeted ethics training. Costs will follow the event. We resolve any outstanding issues as to the precise orders sought, below.
[3]
Professional Misconduct
The Uniform Law provides, relevantly, in s 297:
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; and
(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
….
As we indicated above, the Solicitor acknowledges that the conduct constituted professional misconduct. However, the Tribunal's task is not simply to endorse the agreement of the parties on this issue for the sole reason that it is agreed. The Tribunal's task is to make its own assessment of the matter, whilst according appropriate weight to the parties' position: Council of the New South Wales Bar Association v Butland [2009] NSWADT 177 at [29]; Legal Services Commissioner v Maddock [2021] NSWCATOD 46 at [17]-[18].
We have had regard to the affidavit material lodged by the parties that was tendered at the hearing before us. Having done so, we are satisfied that the conduct occurred, as agreed between the parties. It undoubtedly meets the threshold of amounting to unsatisfactory professional conduct, defined in s 296 of the Uniform Law as "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." We then need to consider whether it also meets the definition of professional misconduct.
Whilst each case falls to be determined on its own facts and merits, we have had regard to previous determinations of the Tribunal and the Supreme Court, as authoritative statements of the Court bind us and one objective of the Tribunal is to ensure that its decisions are consistent: Civil and Administrative Act 2013 (NSW) ('NCAT Act'), s 3(e). Having done so, it is apparent that not every isolated failure of a solicitor to only witness a signature where they observed the document being signed will constitute professional misconduct, as opposed to unsatisfactory professional conduct: Xu v Council of the Law Society of NSW [2009] NSWCA 430; NSW Legal Services Commissioner v Zou [2021] NSWCATOD 139. However, we consider the conduct of the Solicitor to be objectively a more serious and substantial breach of his ethical obligations than that considered in those decisions because the Solicitor knew the conduct was wrong and it involved procuring others to assist, despite that knowledge.
Furthermore, as we raised earlier, there are issues particular to the preparation and execution of wills (and enduring appointments of guardians and attorneys) that make it particularly important that all necessary care and attention is paid to those tasks. Failure to do so, and to ensure that all the stringent requirements as to execution and witnessing are met, can render the document invalid. It is also the case, due to the very nature of a will, that any defect may not be discovered until it is too late for the testator to remedy it, meaning that their solemn wishes as to the distribution of their estate may not be carried out, at least without the complex, uncertain and potentially expensive process of engaging in proceedings in the Supreme Court to have the informal will admitted to probate. That risk should have been obvious to the Solicitor, which also adds to the seriousness of the conduct. The conduct was unsatisfactory professional conduct that constitutes a substantial failure to maintain a reasonable standard of competence and diligence.
A finding that the conduct constituted professional misconduct is warranted. Having reached that conclusion, it is necessary to determine what protective orders, if any, should be made.
[4]
Protective orders
The jurisdiction of this Tribunal in legal professional disciplinary proceedings is protective, not punitive. Having found the Solicitor guilty of professional misconduct, the Tribunal may make "any orders that it thinks fit": Uniform Law, s 302. Protective orders should provide specific deterrence and general deterrence among the profession at large to preserve the high standards of the profession. The orders also protect the public.
The principles that apply to the formulation of what may be appropriate protective orders are well established. They were summarised in Law Society of New South Wales v Maharaj [2017] NSWCATOD 79 at [24], 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".
Whilst the Solicitor tendered evidence that he has undertaken training in ethics over recent years, that is a requirement placed upon all solicitors to maintain their annual Practising Certificate. We are satisfied that further, targeted training is warranted to ensure the Solicitor is given every opportunity, and is indeed obliged, to reflect on the issues arising from the conduct and ensure that it will not reoccur. In accordance with the parties' settled position, we will make the following protective orders, which we are satisfied are warranted given the conduct under consideration:
1. The Respondent is reprimanded.
2. The Respondent must undertake further education in accordance with these orders:
1. The Respondent is to undertake, complete and pass, at his own expense, within 6 months of the date of these orders (Time Period), a Legal Ethics Course that is approved by the Director, Legal Regulation (Director) and therein achieve a result of not less than 65% (Result).
2. The Respondent shall, within seven (7) days of receipt of notification of the result of his participation in the course, provide to the Director, the original of such notification.
3. Should the Respondent fail to achieve the Result in the course, he shall complete such further course (in which he may not have achieved the Result) as approved by the Director, until such time as he achieves the Result in the course within the Time Period.
[5]
A fine
In addition, both parties submit that a fine is warranted but make no submissions as to a specific appropriate amount. The Tribunal has power to order a significant fine following a finding of professional misconduct: Uniform Law, s 302(1)(1). The parties are also in agreement as to the relevant principles that should guide our assessment as to the amount of any fine. The Law Society submits:
1. The seriousness with which the Tribunal views the Solicitor's conduct will impact on the quantum of the fine;
2. The purpose of imposing a fine is to mark the Tribunal's disapproval of the Respondent's conduct: Law Society of New South Wales v Walsh [1997] NSWCA 185 at [40] per Beazley JA; Law Society of New South Wales v Shad [2002] NSWADT 236 at [70]. Although the jurisdiction of the Tribunal in disciplinary matters is exercised to protect the public, not to punish the legal practitioner, the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct and deterring other practitioners who might be tempted to fall short of the high standards required of them. Thus, an element in deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside but will be appropriately dealt with: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 470 per Giles A-JA; Legal Services Commission v Anderson [2015] NSWCATOD 56 at [21]; and Council of the NSW Law Society v Vaughan [2015] NSWCATOD 156;
3. The fine to be imposed must convey to the legal profession and to the community in general that such conduct is unacceptable: Russo v Legal Services Commissioner [2016] NSWCA 306 at [82]; Council of the Law Society of NSW v Hunter [2021] NSWCATOD 22 at [69];
4. It is also important that the amount of any fine "mark out" to both the profession and the general public the seriousness of a practitioner's misconduct. This cannot be achieved by handing out a fine that is minimal or nominal: Council of the Law Society of NSW v Hunter [2021] NSWCATOD 22 at [72];
5. The Tribunal must also consider matters put forward in mitigation by a practitioner guilty of misconduct when determining the appropriateness of and the amount of a fine: Council of the Law Society of NSW v Alkhair [2022] NSWCATOD 111 at [184]; and
6. Weighing those considerations, a fine of between $2,500 and $5,000 would be appropriate, based on the fines imposed in broadly comparable proceedings, both of which involved a single instance of similar conduct: Law Society of New South Wales v Whitting [2005] NSWADT 150; Legal Services Commissioner v Huggett [2017] NSWCATOD 67. In Whitting, the solicitor was fined $5,000, and in Huggett, the solicitor was fined $2,500.
Since the parties agree as to the other protective orders, much of the Solicitor's uncontested evidence as to his personal circumstances, led both in affidavit form and orally at the hearing before us, bears on this limited issue. In that regard, we accept that the Solicitor is currently diagnosed with a depressive illness for which he receives ongoing treatment and medication, and that he feels genuine regret and remorse as to engaging in the conduct. He was also involved in a stressful and acrimonious family dispute and experienced other life stressors when he engaged in the conduct.
What is more important for our purposes in assessing the amount of an appropriate fine, though, is that the Solicitor has accepted the need to obtain assistance, both in ongoing training as directed by the Law Society and through treatment by a psychologist, to address the impact any such stressors may have on him in the future and to ensure they do not lead to him to fall into similar lapses of judgment. We are satisfied that the Solicitor is genuinely motivated in that regard. Those findings militate against the need to impose a large fine to provide a sufficient deterrent to the Solicitor. However, there remains the need to ensure that the fine conveys to the legal profession and to the community in general that such conduct is unacceptable. We will fine the Solicitor $5,000.
[6]
Costs
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 the designated local authority's (here the Law Society's) costs unless the Tribunal is satisfied that exceptional circumstances exist: Uniform Law, s 303(1); NCAT Act, Sch 5, cl 23. No such circumstances are raised, and the Solicitor acknowledges an order should be made that the Law Society have its costs.
[7]
Orders
Having found the Respondent guilty of professional misconduct, our orders are as follows:
1. The Respondent is reprimanded.
2. The Respondent must undertake further education in accordance with these orders:
1. The Respondent is to undertake, complete and pass, at his own expense, within 6 months of the date of these orders (Time Period), a Legal Ethics Course that is approved by the Director, Legal Regulation (Director) and therein achieve a result of not less than 65% (Result).
2. The Respondent shall, within seven (7) days of receipt of notification of the result of his participation in the course, provide to the Director, the original of such notification.
3. Should the Respondent fail to achieve the Result in the course, he shall complete such further course (in which he may not have achieved the Result) as approved by the Director, until such time as he achieves the Result in the course within the Time Period.
1. The Respondent is fined $5000.
2. The Respondent is to pay the Applicant's costs of the proceedings.
[8]
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: 27 October 2023