In these proceedings commenced by Application filed in the Tribunal on 27 March 2015 the Council of the Law Society of NSW (The Council) sought a finding of professional misconduct and consequential orders against Leslie William Gathercole (the Solicitor).
When the proceedings were commenced they were governed by the Legal Profession Act 2004. Although that act was repealed by s167 (a) of the Legal Profession Uniform Law Application Act 2014 from 1 July 2015, the proceedings may be continued before this Tribunal by virtue of cl26 of schedule 4 to the Legal Profession Uniform Law Application Legislation Amendment Act 2015.
The allegations against the Solicitor are that in October 2011 on a number of occasions he falsely purported to witness the signatures of a Mrs Josephine Burgio (whom in fact he had never met) on mortgage documents, on other documents related thereto, on Statutory Declarations, on certificates of identification and on certificates that he had attended Mrs Burgio in conference.
Mr L Pierotti who appeared for the Council read in support of its case the affidavits of Ann Marie-Foord sworn 24 March 2015 and Josephine Burgio 24 February 2015.
Ms Foord, the solicitor for the Council, deposed to a written complaint dated 4 December 2012 received via the Legal Services Commissioner from Newtown Solicitors acting for Ms Burgio. As a consequence of the complaint the Council through its Professional Standards Committee wrote to the Solicitor on 7 January 2013:
Dear Mr Gathercole
Complaint against you by Sergio Nicolau obo Josephine Burgio
The Legal Services Commissioner has referred to the Society a complaint made by Sergio Nicolau obo Josephine Burgio dated 4 December 2012. I enclose a copy of the complaint.
The complaint appears to raise the following conduct issues:
1. Mortgage AG768909E
In circumstances where he had never met Ms Burgio and had no instructions to take any action on her behalf the solicitor:
1. falsely purported to witness the signature of Ms Burgio.
2. falsely certified that he was personally acquainted with or had otherwise satisfied himself as to the identity of Ms Burgio.
3. falsely certified that Ms Burgio signed the instrument in his presence.
2. Solicitors Certificate dated 11.10.2011
In circumstances where he had never met Ms Burgio and had no instructions to take any action on her behalf the solicitor:
1. falsely certified that he had attended in conference with Ms Burgio on 11.10.2011.
2. falsely certified that he witnessed execution by Ms Burgio of the documents referred to in section A of the certificate.
3. falsely certified that the information contained in the certificate was true and correct.
3. Solicitors Certificate dated 13.10.2011
In circumstances where he had never met Ms Burgio and had no instructions to take any action on her behalf the solicitor:
1. falsely certified that he had attended in conference with Ms Burgio on 13.10.2011.
2. falsely certified that he witnessed execution by Ms Burgio of the documents referred to in section A of the certificate.
3. falsely certified that the information contained in the certificate was true and correct.
4. The solicitor failed to transfer to the complainant his file in relation to Ms Burgio as requested.
To enable the Professional Conduct Committee to fairly consider the complaint, you must provide me with your written response to the complaint, within 14 days of this letter. You should include copies of any document that may support your account.
Even if you consider that one or more issues are not conduct issues, please deal with them also in your response.
Also, please indicate whether you would be prepared to meet with the complainant informally in my office to try to resolve the complaint, if we perceive that resolution is an option.
As part of the complaint investigation, I will send a copy of your response to the complainant for comment.
I enclose for your information brochures entitled "Senior Solicitors' Scheme" and "Complaints Process Information".
Yours faithfully
The Solicitor by letter dated 5 February 2013 provided a detailed reply:
RE COMPLAINT AGAINST LESLIE GATHERCOLE
BY SERGIO NICOLAU OBO JOSEPHINE BURGIO
I refer to your letter of 07 January 2013 and the attachments and to our subsequent telephone discussion on Tuesday 22 January last and advise that after carefully reading the complaint I respond as follows:
1. BACKGROUND
Personal background
Name: Leslie William Gathercole
Date of Birth: 31 March 1948 (currently 64 years of age)
Marital Status: Divorced, with three children aged 24, 27 and 29.
I commenced practicing law in 1988. From 1988 to 2001 I was employed as a solicitor and Senior Associate in personal injury work, for GIO Insurance and a number of established law firms in the Sydney metropolitan area up until June 2001.
On 01 July 2001 I became a Sole Practitioner and Principle of Messrs Gathercole & Associates, a law firm based in the Sydney metropolitan area.
Since I commenced as a sole practitioner I have worked almost exclusively in all facets of personal injury, including workers compensation, public and occupier's liability, workplace injury damages and third party insurance claims. I have not, since commencing as a sole practitioner, undertaken any conveyancing or securities work except possibly one or two domestic conveyances for friends. I have also acted in some criminal matters, mostly pleas.
Relationship with Vince Burgio
I recall that I first met Vince Burgio in 2006 in his professional capacity as an executive banker with the National Australia Bank located at the MLC Centre, Martin Place, Sydney NSW, after a colleague and I had secured a $2.5 million loan from the NAB to purchase an investment property located on the south coast of New South Wales.
Vince managed the loan portfolio until it was discharged sometime in late November 2008. Throughout my professional association with Vince administering the loan, I found him to be of exemplary character and totally professional.
Subsequent to the National Australian Bank loan being paid out in 2008 I had no contact with Vince until he telephoned me sometime on 09 October 2011 requesting an urgent appointment, stating he and his family had recently returned to live in Sydney from Singapore, where he was employed as corporate banker for the past three years, and he wanted to sign some documents for me to witness.
2. MORTGAGE AND SOLICITOR'S CERTIFICATE DATED 11 OCTOBER 2011
On 11 October 2011 I arranged an appointment for Vince, which I believe was during his lunch break.
I recall that Vince's wife Josephine did not accompany him to the appointment
At the conference Vince requested that I witness the signing of documents related to a Mortgage for his wife and himself. He said it was urgent. I did not see the documents prior to his arrival.
When Vince arrived he had with him a bundle of documents approximately half an inch thick. He handed them to me and I began to look through them. As I turned pages he pointed to signatures on the documents and said "this is my signature" and pointing to another signature and said "this is my wife's signature". I do not now recall how many documents there were or what they all were. I refer to the certificate dated 11 October 2011 and note that it has a list in subparagraph A of 18 documents. I cannot now recall whether I saw all of those documents or whether they were all in the bundle that Vince handed to me but that list refreshes my memory to the extent that 1 recall seeing a Loan Agreement that had apparently been signed by Vince and Mrs Burgio, the RPA Mortgage form and the Caveat.
While I was looking through the documents Vince produced to me another document, being a document headed "Acknowledgment of Legal Advice". I looked at that document and understood from it that Terence McGowan solicitor had given Vince legal advice about the loan and mortgage transaction that was the subject of our meeting. I kept a copy of that document, a copy of which is annexed hereto marked "A". Vince told me that he had obtained that legal advice prior to his appointment with me, from Mr McGowan.
Further, while I was looking through the bundle of documents, Vince advised me that he and his wife had made an application for finance and executed the Mortgage documents relating to a business loan for $550,000 00 from Prime Finance Pty Ltd.
Vince informed me that the purpose of obtaining the business loan from Prime Finance Pty Ltd was to obtain short term finance (over a three month period) to assist a close family friend who was in financial difficulties and required pressing funds to pay out an existing debt and provide extra cash in a business investment.
I requested that Vince telephone Mrs Burgio for her immediate attendance at the appointment. I recall Vince telephoned his wife on a number of occasions during our meeting and in my presence and told me he could not get her to answer the phone.
When I pressed Vince on his wife's availability, he told me that she had given me authority and as time was of the essence, he instructed me to execute the documents as their close family friend needed urgent assistance in securing immediate finance.
He also informed me that his wife was aware of our appointment but was unavailable to attend as she was looking after their children. He told me that she had given him instructions for me to act on her behalf in this matter and requested that I witness his wife's signature on the mortgage documents and provide independent legal advice to her in her absence.
I then looked at the Solicitor's Certificate that he had asked me to sign and I noted that it recorded three types of identification of Mrs Burgio - a passport, a Medicare card and a private healthcare fund card (CBHS). I asked Vince if he had the originals and he said that he did and he produced them to me. I took a photocopy of the first page of the passport and the front of the two cards and for my own record certified the copy of the passport. A copy of the photocopy with my certificate is annexed hereto marked "B".
I compared the signature on the original passport with the signature on the Mortgage. They appeared to me to be signed by the same person.
I asked him if these were her original documents and her signature, to which he said "Les, that's her signature on her passport".
I was reticent to witness his wife's signature and provide a Solicitor's Certificate in her absence, however as Vince had formally confirmed his wife's identification and as he was an experienced senior corporate bank officer I signed the RPA Mortgage form as a witness of Mrs Burgio's signature and I filled out and signed the "Solicitor's Certificate" dated 11 October 2011. The RPA Mortgage form was not dated at the time that I signed it.
Upon execution of the mortgage documents Vince took the documents from the office and told me that he was lodging them with the lender's solicitor.
3. SOLICITORS CERTIFICATE DATED 13.10.2011
I recall that on 12 October 2011, Vince again telephoned me requesting a further urgent appointment. He informed me that the mortgagee's solicitor had advised him that there was an error in the Solicitors Certificate dated 11 October 2011 and until a further document for identification was provided, the loan application would not be considered.
In response to Vince's request, a further urgent appointment was made for 13 October 2011. On this occasion he assured me of his wife's attendance at that appointment.
On 13 October 2011, I attended Vince in conference without his wife. I recall that I asked Vince for her telephone number for me to speak with her directly regarding her attendance and signing the mortgage documents. In response to my request, Vince informed me that his wife was unavailable.
Vince reiterated to me the urgency of obtaining the business loan for the friend and pressed me to provide a further Solicitors Certificate. He also presented me with an original credit card. On the back was a signature which appeared to be that of Mrs Burgio.
I then filled out and signed the second Solicitor's Certificate, this time dated 13 October 2011, and gave it to Vince.
Similarly upon execution of the updated Solicitors Certificate and mortgage documents, Vince took the documents from the office and told me that he was lodging them with the lender's solicitor.
During the transactions with Vince, to execute the document, I did not open a file, nor render an account, nor was I paid for my legal services as I regarded it was an arrangement of helping a business associate.
In the events that happened I did not ever meet Mrs Burgio.
4. FAILED TO TRANSFER THE COMPLAINANT'S FILE
In response to the allegation that I failed to transfer the Complainant's file, I make the following comments:
I have no recollection of receiving a telephone call from Sergio Nicolau Solicitor from Newtown Solicitors, or receiving a message from my staff that he had telephoned me. However I did receive a letter from Newtown Solicitors dated 04 June 2012 by facsimile enclosing an undated Authority and direction from Mrs Burgio to transfer all her files to Newtown Solicitors.
In response to receiving Mrs Burgio's authority to transfer her file to Sergio Nicolau of Newtown Solicitors, I contacted Vince Burgio by phone whereby he informed me that his wife had withdrawn instructions from that firm.
As I had not opened a file, I did not make this matter a priority and as such, I did not respond to Sergio Nicolau's correspondence.
I did not intend any discourtesy to Mr Nicolau and apologise to him for not making contact.
5. COMMENTS AND CONCLUSION
Except in the limited manner referred to above, I have not practised in the areas of property or finance and had not previously been called upon to give advice or a certificate of advice on a mortgage.
Because of my inexperience in this area I did not, at the time of these events, turn my mind to the possible consequences of my executing the Mortgage as a witness or executing the certificates without having seen or advised Mrs Burgio or having seen her sign the Mortgage.
I relied on what Vince told me and I trusted him because of his banking experience and what I then understood to be his good character. I also relied on the certificate of Mr McGowan.
Given my previous experience with Vince Burgio, I believed him to be totally honest with me and that his wife had signed the documents.
I appreciate and regret that I made a terrible mistake by signing Mrs Burgio's mortgage documents and providing the Solicitor's certificates on 11 and 13 October 2011.
I now fully appreciate the effect of my signing the Mortgage and certificates but at the time I did so the import of my actions was not in my mind and it was not my intention to mislead anyone or to prejudice Mrs Burgio's position.
I will not ever engage in such conduct again.
I also with to apologise unreservedly to Mrs Burgio for any difficulties my actions may have caused her.
The Law Society may be assured of my co-operation in dealing with this matter.
Yours faithfully,
Leslie William Gathercole
Some further correspondence between the Professional Standards Committee and the Solicitor ensued which it is unnecessary for us to reproduce bar the letter from Pikes & Verekers Lawyers acting for the Solicitor dated 2 July 2014:
Ms Natalie O'Halloran
Professional Standards
Law Society of New South Wales
DX362
SYDNEY
Dear Ms O'Halloran
COMPLAINT AGAINST LESLIE GATHERCOLE BY SERGIO NICOLAU OBO JOSEPHINE BURGIO AND COMPLAINT BY THE LAW SOCIETY
Our ref RT:JE: 130038
Your ref NOH:39816
We refer to your letter to Mr Gathercole of 10 June 2014.
In relation to the complaint we are instructed that Mr Gathercole wishes to make the following further submissions:
1. In relation to the fifth bullet point "Falsely witnessed Mrs Burgio's purported signature on an Acknowledgment of Legal Advice dated 11 October 2011"- that document does not include any form for witnessing the client's signature nor does it contain Mr Gathercole's signature. For those reasons that part of the complaint is, with respect, misconceived and should not proceed.
2. In respect of the last bullet point "Gave Certificates dated 11 and 13 October 2011 certifying that he had identified Josephine Burgio":
(a) We refer you to Mr Gathercole's letter of 5 February 2013 at page 3 where he records that Mr Burgio produced to him originals of Mrs Burgio's passport, Medicare card and a private health care fund card.
(b) The forms of the two certificates do not contain any statement that Mr Gathercole identified Mrs Burgio by meeting with her but rather that he used three original documents to establish her identity.
In these circumstances, and in particular where the last bullet point does not allege that in signing those certificates Mr Gathercole engaged in any dishonesty, that part of the complaint should not proceed.
Otherwise Mr Gathercole wishes his letter of 5 February 2013 to stand as his response to the revised complaint.
Yours faithfully
Robert Tassell
The proceedings before us rely on the original complaint made on behalf of Mrs Burgio as modified by the matters raised in the letter of 2 July 2014.
Mrs Burgio's affidavit identified the various documents purportedly signed by her and referred to in the Council's complaint. She deposed that she did not sign any of those documents and that none of the signatures which purported to be her signature was in fact her signature. She also deposed to the circumstance that so far as she is aware she has never met the Solicitor and that she has never instructed him to act for her. Mrs Burgio was not required for cross examination.
Mr M Neil QC who appeared for the Solicitor read the affidavits of the Solicitor himself sworn 15 July 2015 and of Anthony Jamieson 6 July 2015, Robert Leitch 10 July 2015, Andrew Dent 14 July 2015 and Robert Tassell 6 November 2015. Mr Neil also tendered (Exhibit 1)a report of Dr Rosalie Wilcox, General and Forensic Psychiatrist dated 2 July 2015.
The Solicitor deposed to his birth in the United Kingdom on 31 March 1948, to his qualification as an electrician, to his work in that occupation until 1974 to his migration to Australia in 1969 and to his further education from 1974 until 1987 when he graduated in Law at the University of NSW.
After commencing practice as a solicitor in 1988 he worked for a time at the Government Insurance Office in personal injury matters and then with several law firms until he established his own practice in 2001. He described his practice thereafter:
18. Since I commenced my firm I have worked as a sole practitioner almost exclusively in all facets of personal injury including workers compensation, public and occupiers' liability, workplace injury damages and third party insurance claims. I have not, in the conduct of my own firm, undertaken any conveyancing or securities work except possibly one or two domestic conveyances for friends. I have also acted in some criminal matters (mostly pleas) and some family law matters.
19. As at October 2011 I had virtually no experience in conveyancing, personal and domestic or commercial finance, mortgages or other real property security work.
The solicitor described the circumstances under which he came to know Ms Burgio's husband:
20. I first met Vince Burgio (Mr Burgio), the husband of the complainant Josephine Burgio (Mrs Burgio), in 2006 in his professional capacity as an executive banker with National Australia Bank Limited (NAB). Mr Burgio had an office at the MLC Centre in Martin Place, Sydney. At about that time I entered into a property investment with my friend barrister Timothy Meakes (Mr Meakes) to purchase an investment property at Wombarra, south of Sydney (the Wombarra property). Mr Meakes and I obtained a loan of $2.5 million from NAB to purchase the Wombarra property (the NAB loan). The Wombarra property was purchased for $2.5 m and was then used principally for holiday lettings.
21. Mr Burgio was the Relationship Manager assigned to Mr Meakes and myself in respect of the NAB loan and he remained in that capacity until that loan was discharged in November 2008.
22. Throughout my professional association with Mr Burgio concerning the administration of the NAB loan I found him to be totally professional and he appeared to be of exemplary character.
23. After the NAB loan was paid out in November 2008 I had no further contact with Mr Burgio until he telephoned me on about 9 October 2011.
As to his conduct in the matter before us the Solicitor said:
34. After I received correspondence from the Applicant in January 2013 identifying Mrs Burgio's complaint I set out to the best of my ability my recollection of the events the subject of that complaint in my letter to the Law Society dated 5 February 2013 (a copy of which is annexed hereto marked "C") and is also annexed to the affidavit of Anne-Marie Foord sworn 24 March 2015 in these proceedings (Ms Foord's affidavit). The following paragraphs are intended to clarify and amplify that recollection.
Contact from Mr Burgio
35. Shortly before 11 October 2011 I received a telephone call from Mr Burgio and we had a conversation in words to the following effect:
Mr Burgio: "Hello Les it's Vince Burgio, I used to be your Relationship Manager at the NAB."
Me: "Hello Vince how are you going?"
Mr Burgio: "Good thanks. My wife and I have just come back from overseas. We have been living in Singapore. I was working as a corporate banker up there for three years. Can you do me a favour? I've got some documents for you to witness."
Me: "Fine. When do you want to come in?"
36. Mr Burgio nominated 11 October 2011 but I do not now recall the words he said because I am not sure of the exact date when he first telephoned me.
37. On 11 October 2011 Mr Burgio came to my office at around lunch time. He was alone. He had a bundle of documents about half an inch thick. We had a conversation in words to the following effect:
Mr Burgio: "I'm borrowing some money for a close family friend who's in financial trouble. He needs money to pay out an existing debt and provide extra cash for a business. My wife and I are going to help him out. I need you to witness some documents for us relating to a mortgage."
38. Mr Burgio handed me the documents and I began to look through them. As I turned the pages he pointed to signatures on the documents and said:
"This is my signature."
and pointing to another signature he said:
"This is my wife's signature."
39. While I was looking through the documents Mr Burgio gave me another document which was headed "Acknowledgment of Legal Advice". I looked at that document and I saw that it had Mr Burgio's signature and another signature of a solicitor, Terence McGowan. A copy of that document is annexure "A" to my letter to the Law Society dated 5 February 2013 and appears as part of annexure "C" to Ms Foord's affidavit.
40. When I saw that Acknowledgment and that Mr McGowan had signed it I believed that Mr McGowan had given Mr Burgio legal advice about the loan and mortgage transaction that was the subject of our meeting.
41. When I was looking at that Acknowledgment Mr Burgio and I had a conversation in words to the following effect:
Me: "Who is Terence McGowan?"
Mr Burgio: "He's another solicitor I've seen to get advice about the mortgage."
Me: "So why are you coming to me if it's already signed?"
Mr Burgio: "My wife couldn't make the appointment with him, she had to look after the kids. She agrees with it and she signed it and I just need you to witness her signature."
Me: "Can you get her to come in and see me? Give her a ring now."
42. Mr Burgio then apparently made a telephone call on his mobile and after a short while said:
"I can't get her."
43. The conversation then continued:
Me: "Well when can she get here?"
Mr Burgio: "She's given you authority because we 're in a hurry to sign. It's really urgent. She can't come in anyway now she's looking after the kids."
44. Conversations to this effect continued for a few more minutes and Mr Burgio made at least one more apparent attempt to telephone Mrs Burgio.
45. While I was looking at the documents I noticed that one of them was entitled "Solicitors Certificate" and dated 11 October 2011 (dated by me that day) is annexed to Ms Foord's affidavit (the first certificate). In the bundle of documents handed to me by Mr Burgio the first certificate was blank but I noted that at Section B it called for identification. When I was looking at the first certificate Mr Burgio and I had a conversation in words to the following effect:
Mr Burgio: I've got her original ID here. I can show them to you."
46. He then produced to me the following documents:
(a) an original passport number, apparently Mrs Burgio's passport;
(b) Medicare card number on which Mrs Burgio's name appeared; and
(c) a private health care fund (CBHS) card number.
47. I compared the signature on the passport with the signature on the mortgage and they both appeared to me to be signed by the same person. While I was doing so Mr Burgio said to me:
"Les, that's her signature on her passport."
48. Although I was reluctant to sign the documents that Mr Burgio had requested me to sign in Mrs Burgio's absence I believed that Mrs Burgio had signed the mortgage and other documents and I was convinced by what Mr Burgio had told me that she had done so. I was influenced by the fact that he was an experienced senior corporate bank officer.
49. I then signed the following documents:
(a) the RPA form of Mortgage;
(b) Annexure "A" to the Mortgage;
(c) Declaration of Borrower;
(d) Acknowledgment of Receipt of Mortgage Documents;
(e) Acknowledgment of Legal Advice;
(f) Authority, Direction and Undertaking;
(g) Authority to Make Inquiries;
(h) Consumer Credit Code Declaration;
(i) Undertaking and Acknowledgment - Deed of Priority.
50. I then handed those documents back to Mr Burgio and he took them. I did not keep a copy although I did keep a copy of the Acknowledgment of Legal Advice that had been signed by Mr McGowan and the three identification documents referred to above.
51. By the time I signed the documents I felt under pressure from Mr Burgio in the sense that he was agitated and appeared to be in a hurry. I did not properly turn my mind to the import of what I was signing. In particular I did not clearly take in or think that I was witnessing statutory declarations reportedly signed by Mrs Burgio.
52. I did not think through the consequences of my purporting to witness Mrs Burgio's signature in circumstances when I had not seen her. I was influenced by what Mr Burgio had told me and the original passport in particular which convinced me that Mrs Burgio had signed the documents.
53. I now understand and accept that what I did was unacceptable and that I did not properly execute my duties as a solicitor.
54. On 12 October 2011 Mr Burgio telephoned me and we had a conversation in words to the following effect:
Mr Burgio: "Sorry to bother you Les but the mortgagee's solicitors told methere's an error in the certificate that you did the other day. One of the ID's is not acceptable. It's the health care card but I've got her credit card instead. Can I come and see you to get another certificate?"
Me: "Alright, come in."
Mr Burgio: "I'll make sure Josephine comes in this time."
55. We then made a time for later that day.
56. Later that day Mr Burgio attended at my office. He was alone. We then had a conversation in words to the following effect:
Me: "Where's your wife Vince?"
Mr Burgio: "She can't make it."
Me: "Well give me her phone number so I can speak to her."
Mr Burgio: "You can't get her on the phone. Look it's really urgent. I've got to get this loan and I've got to get this certificate. Here's her credit card."
57. He handed me a credit card. I looked at the credit card which had Mrs Burgio's name on the front and a signature consistent with the other signatures which I thought were hers on the back. Mr Burgio handed me another solicitor's certificate which I filled out and signed and gave back to him. A copy of that second solicitor's certificate is annexed to Ms Foord's affidavit.
58. I did not keep a copy.
59. In respect of these matters I did not open a file nor render any account nor was I paid.
60. I repeat my comments about my conduct at paragraphs 52-53 above.
On the above facts, and the Solicitor's admissions there can be no doubt that he was guilty of professional misconduct of a very high degree. He lent himself and his professional standing, albeit without personal benefit, to a very serious fraud apparently perpetrated by Mr Burgio upon his wife.
As to the consequences of a finding of professional misconduct there are subjective matters to take into account although our role is not punitive but rather the protection of the community.
The report of Dr Wilcox a General and Forensic Psychiatrist indicates that she has treated the Solicitor since April 2013 for a condition which she diagnosed as Major Depression, seemingly a consequence of very serious injuries suffered by the Solicitor when he fell in a bus. According to Dr Wilcox the Major Depressive Order is likely to have affected the Solicitors judgment in the events which occurred in October 2011.
Mr Jamieson a member of the NSW Bar said that he has known the Solicitor since 1989 both professionally and socially. He spoke very highly of his competence as a legal practitioner and of his honesty and character. He attributed the events which bring the Solicitor before the Tribunal to pressure upon him by Mr Burgio at a time when he was vulnerable following the accident referred to above.
Mr Leitch, a solicitor, said he first met the Solicitor about 1989. He also developed both a professional and personal relationship with him, and said that he regarded him as honest, responsible and of excellent character.
Mr Dent a solicitor said that he has known the Solicitor since 1996 in a professional capacity. He said that in his numerous dealings with the Solicitor he impressed him "as a transparently honest and trustworthy person and an able practitioner".
Mr Tassel who represents the Solicitor as his solicitor in this case also represented him in Supreme Court proceedings in which he was joined as a cross defendant by Mrs Burgio. Those proceedings were subsequently the subject of a confidential settlement reached at mediation.
It is clear on the evidence that as at October 2011 the Solicitor was a highly regarded, well respected and competent legal practitioner. The events which bring him before this Tribunal were entirely foreign to his then established character and level of competence.
In his closing argument Mr Pierotti submitted that the Solicitor's name should be removed from the roll. He referred us to a number of cases involving comparable transgressions as did Mr Neil. It is noteworthy that in none of the cases referred to was the solicitor struck off.
The most authoritative case quoted to us was the decision of the Court of Appeal (Kirby P, Handley JA and Cripps JA) in Fraser v Council of the Law Society of NSW 7 August 1992. In that case the solicitor falsely certified that he had explained mortgage documents to certain mortgagors. He compounded this misconduct by giving a very misleading answer to a question asked of him by another solicitor four days later and by being less than forthcoming when first challenged by the Law Society.
The Legal Profession Disciplinary Tribunal had ordered that he be removed from the roll of solicitors but on appeal the Court of Appeal quashed that order and instead ordered that he pay a fine of $7000.
In the course of his reasons Kirby P said:
Therefore, whilst taking into careful account the opinion of the Tribunal, reflected in its order, this Court is required to form its own view and, where necessary, to give effect to it in determining the appeal. Its orders, like those of the Tribunal are not made as such to punish the practitioner as such. They should go no further than is necessary to uphold proper standards and to protect the public interest. See Harvey v The Law Society of New South Wales (1975) 49 ALJR363 (HC) at 365.
Conclusion and order: a second chance
As a result of the foregoing analysis I have concluded that the proved and admitted behaviour of the appellant was professional misconduct. But I do not believe that it requires the removal of his name from the roll. He should be afforded another chance. It is inconceivable that he would ever err in the same way again. I take into account, in coming to this conclusion, the appellant's age, his experience as a solicitor to date, the attitude of helpfulness which he appears to display to his clients and the good opinion expressed of him by a fellow practitioner and a Member of Parliament in statements placed before the Court. It is also impossible to ignore the fact that, by the operation of the Tribunal's order, the appellant has been disqualified from practice as a solicitor for more than seven months.
Handley JA concluded his judgment:
I am satisfied from this review of the earlier decisions that if this Court were now to allow this appeal it would not be departing from prior authority, and would not be sanctioning any lowering of the standards which its predecessors had required from the solicitors of this Court. In my opinion however the Tribunal acted correctly on the material before it in striking the appellant from the Rolls. A solicitor who commits fraud without knowing that he has done so in my opinion is not a fit and proper person to remain on the Roll. That situation has now changed. I believe that this Court would now be justified in concluding that this appellant will never again give a false certificate. So far as the evidence reveals, and there is nothing to suggest otherwise, this was "an isolated...departure from proper professional standards". The appellant is still young, with limited experience, and as a result of these proceedings he will be both a sadder and a wiser man. He has now been off the Roll of Solicitors for over seven months. In my opinion therefore the requirements of this disciplinary and protective jurisdiction will be fully met if this Court were to make the orders proposed by Kirby P.
Cripps JA concluded:
I have come to the conclusion that the appellant recognises the extent and gravity of his conduct and that it fell far short of the standards required to be observed by practising solicitors. In formulating the order I propose, I place on record that I have paid no regard to any claim of personal hardship and I note that it has not been put that Mr Fraser's conduct was the result of pressure of work. The essential function of the Court is not to decide an appropriate punishment. It is to determine what order should be made bearing in mind the evident purpose of the legislative provisions, i.e., to protect members of the public by not exposing them to persons who are unfit to practise as solicitors and to promote and maintain public confidence in the legal system. Section 163 of the Legal Profession Act 1987 provides that if the Tribunal is satisfied that a legal practitioner is guilty of professional misconduct, it may order the practitioner's Practising Certificate to be cancelled or suspended; order the practitioner's name be removed from the Roll of Solicitors; order that the practitioner pay a fine or a combination of any of those things.
In light of the observations above quoted we believe it would be contrary to authority to order removal from the roll of the solicitor in this case. His conduct in our view was no worse than the conduct impugned in Fraser and many of the ameliorating circumstances referred to in that case apply. We believe that there is genuine remorse and that there is no risk of the solicitor offending again in any similar way.
We make this following finding and orders:
1. The Solicitor is guilty of professional misconduct
2. The Solicitor is Reprimanded
3. The Solicitor is fined the sum of $5000
4. The Solicitor is ordered to pay the Council's costs on a party and party basis as agreed or assessed.
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
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Decision last updated: 09 March 2016