1. Mr Merhi having pleaded guilty to five charges of misconduct at common law in that:

in relation to charges 1 - 4, he falsely attested the execution of documents and/or falsely certified that he had given independent legal advice and/or verified the identity of signatories in relation to:

(i) the Nationwide Capital loan (on or about 28 June 2011)

(ii) the Asian Travel Centre loan (in about July 2011)

(iii) the First Mortgage Capital loan (in about September 2011)

(iv) the JM Nominees loan (in about November 2011)

and,

in relation to charge 5, on 7 November 2014 and 26 March 2015, he represented that he only falsely altered documents on one occasion, and was recklessly indifferent to the truth of that representation, which was not true,

Mr Merhi is found guilty of those five charges.

1. Pursuant to section 4.4.4.17(c) of the Legal Profession Act 2004, a local practising certificate is not to be granted to Mr Merhi during the period from 1 August 2017 to 31 July 2019 ('head disqualification period'), such period being comprised as follows:
   • (a) on charges 1 to 4 an aggregate period of disqualification of 14 months; and
   • (b) on charge 5 an additional period of disqualification of 10 months to run cumulatively upon the aggregate period of suspension imposed for charges 1 to 4.
2. Twelve months of the head disqualification period is wholly suspended for a period of 18 months commencing on 1 August 2018 ('suspended order period'). During the suspended order period a local practising certificate may be granted to Mr Merhi.
3. During the suspended order period, Mr Merhi shall not engage in or commit any act of professional misconduct or unsatisfactory professional conduct.
4. In the event that Mr Merhi fails to comply with order 3 during the suspended order period, the Victorian Legal Services Commissioner may make an application to the Tribunal to revoke the suspended order period. In the event that the Tribunal is satisfied that a breach of this order has occurred during the suspended order period, the Tribunal may order that:
   • (a) order 2 is vacated, and
   • (b) in lieu thereof, any practising certificate then held by Mr Merhi shall be cancelled and a local practising certificate shall not be granted to Mr Merhi before a date that is no later than the expiry of the suspended order period.
5. Nothing in order 4 shall limit the Tribunal's power to suspend or order a further period during which Mr Merhi shall not be granted a practising certificate in the event that it finds him guilty of any further professional misconduct or unsatisfactory professional conduct.
6. Mr Merhi shall pay the Victorian Legal Services Commissioner's costs in the proceedings on a standard basis on the County Court Scale, to be taxed in default of agreement.
7. Liberty to apply in relation to the date of commencement of the head suspension period referred to in order 1 above.

1. Mr Merhi is a 52 year old solicitor who was admitted to practice in 2005. For the last 12 years, he has been a sole practitioner in Sydney Road Coburg. He was born in Lebanon, speaks Arabic, and his practice serves the Middle Eastern community in Melbourne.
2. On four occasions in 2011, Mr Merhi purported to witness signatures on loan documents, despite the documents having already been signed when they were presented to him, and the purported signatories not being present. He also certified, again falsely, that he had given advice to various signatories, and verified their signatures.
3. Unfortunately, in doing so, he facilitated frauds by the person who presented the documents to him for signing, Mr Hasim Sadoui. Mr Sadoui was then a solicitor and leader in the Middle Eastern community, who also had a practice in Sydney Road. He had been Mr Merhi's supervisor for his practical legal training in 2004. Now, however, Mr Sadoui is not practising, and is, I understand, facing serious criminal allegations concerning fraudulent loans, including the four transactions the subject of this proceeding, which the VLSC[1] has brought against Mr Merhi.
4. The consequences of the false attestations and certifications by Mr Merhi have been profound. I was told that the amount of $633,000 has been paid from the fidelity fund to victims of fraud in relation to two of the loan transactions. The fidelity fund also incurred $65,000 in costs. The Legal Profession Liability Committee (LPLC) has paid out $243,876.51. I was told Mr Merhi is liable to reimburse the LPLC for a substantial proportion of that sum by instalments over a seven year period (plus $10,000 deductable). The impact on Mr Merhi would have been greater but for two of the loans he facilitated having been replaced by other loans subsequently arranged by Mr Sadoui.
5. Mr Merhi's view of himself (shared by others) as an honest, ethical and reliable practitioner, has been shattered. His life has been thrown into turmoil, and his family has been, and will continue to be affected.
6. This case has an additional dimension: Mr Merhi breached his duty of candour to the VLSC and the VLSB[2] (or their predecessors) in his responses to their enquiries concerning the various loan documents. At first (on 7 November 2014 and 26 March 2015) he said it was only on one occasion (likely 27 July 2011) that he had purported to witness signed documents where the signatory was not present. These statements related to two of the four loan transactions, namely the 'Asian Travel Centre loan' and the 'JM Nominees' loan.
7. Then, after the VLSC advised Mr Merhi that it had become aware of a further occasion on which false attestations were made (relating to the 'Nationwide Capital loan') Mr Merhi responded (on 10 June 2016) that he did not know how many occasions false attestations and/or certifications had occurred on. Mr Merhi said he had a reasonably strong belief that it was not more than twice. But he did accept that the 'hard evidence' seemed to suggest it had occurred on three occasions. However, in the light of the emerging evidence of Mr Sadoui's extensive forgeries he could no longer be certain that his signatures on various documents were not in fact forgeries themselves. He raised the question whether a handwriting expert should become involved. However, this was apparently not possible, as the documents were required to be kept secure by the police, for the purposes of their criminal case against Mr Sadoui.
8. Then, after the VLSC advised Mr Merhi that it had become aware of a further occasion of false attestations and certifications (relating to the 'First Mortgage Capital loan') Mr Merhi responded on 13 December 2016, in effect, that he was now even less certain, and could not recall signing the First Mortgage Capital loan documents.
9. Finally, after the VLSC's application to VCAT was commenced (in December 2016) additional falsely attested documents came to the VLSC's attention. These were further documents relating to the Asian Travel Centre and JM Nominees loan transactions. Again, Mr Merhi said (on 11 May 2017) that he had no independent memory about the signing of those particular documents.
10. Following apparently extensive negotiations, on 21 June 2017, the Tribunal received a document entitled 'Amended Application and Statement of Agreed Facts'.[3] Mr Merhi pleaded guilty to four charges of making false attestations and certifications (on four separate occasions) plus a fifth charge of breach of his duty of candour to the regulator. The Tribunal also received a 'Joint Submission on Penalty' from the parties.

FURTHER AMENDED APPLICATION AND STATEMENT OF AGREED FACTS OF 21 JUNE 2017

AMENDED APPLICATION AND STATEMENT OF AGREED FACTS

1. The Respondent was admitted to practice in Victoria on 20 April 2005.
2. At all material times the Respondent-

(a) was an Australian legal practitioner within the meaning of section 1.2.3(a) of the Legal Profession Act 2004 (the Act) or section 6 of the Legal Profession Uniform Law (Victoria); and

(b) was the principal of the law practice trading as Merhi & Associates Barristers & Solicitors, carrying on practice at 675 Sydney Road, Brunswick, as a sole practitioner.

1. Hisam Sidaoui was until 16 December 2013 a solicitor who held a Victorian practising certificate who practised as the principal of Sidaoui Law Firm and operated a trust account.
2. The charges against the Respondent arise from the Respondent, at the request of Hisam Sidaoui, writing the Respondent's signature onto documents:

(a) as witness to the execution of those documents by others when in fact he did not witness any person execute the documents; and

(b) as a solicitor who had given advice to persons who executed the documents, and verified their identity when in fact he did not give anyone such advice and had not verified anyone's identity.

1. The conduct referred to in paragraph 4(a) is described in this document as 'false attestation' and that in paragraph 4(b) as 'false certification'.
2. The documents purported to document four purported mortgage loan transactions described in the charges in greater detail:

(a) The June 2011 Nationwide Capital Pty Ltd loan of $495,000 to Hakea Walk Pty Ltd, a company of which Hisam Sidaoui was a director, secured by a guarantee and mortgages over land given by Mr Sidaoui's one-time client Nasr Ibrahim;

(b) The July 2011 Asian Travel Centre Pty Ltd loan of $82,940 to Hisam Sidaoui, his mother, father and sister secured by mortgages over his parents' property and over his sister's property;

(c) The September 2011 First Mortgage Capital Ltd loan of $289,001 to Blue Rosemary Pty Ltd, a company of which Hisam Sidaoui was a director, to Hisam Sidaoui and to Mr Sidaoui's one-time client Khalid Zoobi;

(d) The November 2011 JM Nominees Pty Ltd loan of $500,000 to Hakea Walk Pty Ltd, the same borrower as in the first transaction, secured by a guarantee and mortgages over the same land as in the first transaction given by Nasr Ibrahim.

1. The Respondent wrote the signatures on four separate occasions at about the times referred to in the previous paragraph.
2. The signatures on the documents that purport to be those of Hisam Sidaoui's one-time clients Nasr Ibrahim and Khalid Zoobi, his sister Rhonda Sidaoui, his mother Laila Sidaoui, and his father Mahmoud Sidaoui were forged by someone other than the Respondent, probably by Hisam Sidaoui.

Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent on or about 28 June 2011, falsely attested the execution of the following documents by a purported guarantor and mortgagor -

(b) a document titled "guarantor's acknowledgment",

(c) a deed of guarantee and indemnity of a borrower's obligations under a loan, and

1. By what purported to be a written agreement made in about June 2011, Nationwide Capital Pty Ltd agreed to lend $495,000 to Hakea Walk Pty Ltd subject to, amongst other things, the receipt of certain securities.
2. Hisam Sidaoui was at that time a director and shareholder of the borrower Hakea Walk Pty Ltd. Nasr Ibrahim was also recorded in ASIC's database as a director and shareholder of that company but in fact he knew nothing about it and was not a director or a shareholder.
3. The securities for repayment of the loan were to include -

(a) a personal guarantee of the performance of the borrower's obligations by Nasr Ibrahim, and

(b) a mortgage over two properties owned by Nasr Ibrahim at 35 Boston Road, Lalor and 6 Hammond Drive, Epping.

1. On or about 28 June 2011, the Respondent falsely attested Nasr Ibrahim's execution of documents which purported to be:

(a) a statutory declaration set out in Schedule C of the loan agreement;

(b) a guarantor's acknowledgment at page 28 of the loan agreement;

(c) a deed of guarantee and indemnity of the borrower's obligations under the loan agreement (Nationwide Capital Guarantee) including in Schedule A and an attached statutory declaration, and

(d) a registrable mortgage over the Boston Road and Hammond Drive land including on page 4 of the Annexure (Nationwide Capital Boston Road and Hammond Drive Mortgage) which was registered on title on 13 July 2011.

Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent in about July 2011 falsely-

(i) the execution by three borrowers of a document purporting to evidence a loan agreement,

(ii) the execution by two mortgagors of a registrable mortgage over real property,

(iii) the execution by a mortgagor of a registrable mortgage over real property other than the one referred to in sub-paragraph (ii), and

(iv) the execution by three guarantors to a loan agreement of a document that purported to declare that each of them had obtained independent legal advice about the transaction, and

(b) certified that he had given independent legal advice to, and sighted identification documents for, the parties referred to in paragraph (a).

1. By what purported to be a written agreement made on or about 27 July 2011, Asian Travel Centre Pty Ltd agreed to lend $82,940 to Hisam Sidaoui subject to certain terms and conditions.
2. The terms and conditions of the loan included the following -

(a) Rhonda, Laila and Mahmoud Sidaoui were each to assume joint and several liability for Hisam Sidaoui's obligations, and

(b) Asian Travel Centre was to receive security in the form of -

(i) a charge and caveat to be registered over a property owned by Mahmoud and Laila Sidaoui at Unit 1, 49 McNamara Street, Macleod; and

(ii) a charge and caveat over a property owned by Rhonda at 410 Lower Plenty Road, Viewbank.

1. On or about 27 July 2011, the Respondent, falsely attested -

(a) each of Rhonda, Mahmoud and Laila Sidaoui's execution of a document entitled "Offer" which set out the terms of the loan,

(b) Mahmoud and Laila Sidaoui's execution of a registrable mortgage over the McNamara Street land,

(c) Rhonda Sidaoui's execution of a registrable mortgage over the Lower Plenty Road land, and

(d) Mahmoud, Laila and Rhonda Sidaoui's execution of documents entitled "Guarantor Declaration", which declared that each of them had obtained independent legal advice about their obligations under the loan agreement and mortgages.

1. On the same occasion, the Respondent signed documents entitled "Solicitor's Certificate" by which he certified that -

(a) he had given independent legal advice to Rhonda (and in the second document, to Mahmoud and Laila) about the effect of the loan documents,

(b) he had advised Rhonda (and in the second document, Mahmoud and Laila) to obtain independent financial advice if in doubt about the viability of the transaction,

(c) Rhonda (and in the second document, Mahmoud and Laila) had told him, after receiving the advice referred to in paragraphs (a) and (b) above that -

(ii) she and they signed the loan documents freely and without pressure from anyone, and

(d) Rhonda had shown him a driver's licence as evidence of identification, and Mahmoud and Laila had shown him a passport as evidence of identification.

1. On 7 May 2012, the Lower Plenty Road mortgage was registered over title.

Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent in about September 2011 falsely -

(a) attested the execution by one of the purported borrowers under a loan agreement of -

(ii) a document purporting to set out settlement instructions,

(iv) a statutory declaration about the property referred to in sub-paragraph (iii) and

(b) certified that he had verified the identity of the borrower referred to in paragraph (a) by sighting identification documents.

1. By what purported to be a written agreement dated 21 September 2011, First Mortgage Capital Ltd agreed to lend $289,001 to Blue Rosemary Pty Ltd, Hisam Sidaoui and Khalid Zoobi,
2. Hisam Sidaoui was a director of Blue Rosemary and had previously acted for Khalid Zoobi in the purchase of a property at 3 Harmony Court, Roxburgh Park (Harmony Court). Khalid Zoobi was also recorded in ASIC's database as a director of that company but in fact he knew nothing about it and was not a director or a shareholder.
3. On or about 20 September 2011, the Respondent falsely attested Khalid Zoobi's execution of:

(a) the loan agreement by signing the execution clause of the deed set out on page 25;

(c) a Statutory Declaration which declared that the Harmony Court land was free from encumbrances and/or caveats, and any other matters which would adversely affect the loan, and

1. On the same occasion, the Respondent signed a document entitled "Certificate of Witness", which said that he had verified Khalid Zoobi's identity by examining identification documents.

Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that the Respondent in about November 2011 falsely -

(a) attested the execution of the following documents by a person who was guarantor and mortgagor of the borrower's obligations under a loan agreement -

(i) duplicate copies of a registrable mortgage of land,

(iv) duplicate copies of a document titled "Mortgagor's Acknowledgment", and

(b) certified that he had given the person referred to in paragraph (a) independent legal advice about the transaction, that he had verified his identity by sighting identification documents, and various other matters.

1. By what purported to be a written agreement dated 28 November 2011, JM Nominees Pty Ltd agreed to lend $500,000 to Hakea Walk Pty Ltd subject to certain terms and conditions (JM Nominees Loan Agreement).
2. The loan agreement required Hakea Walk Pty Ltd to procure securities for repayment of the loan that included -

(a) a personal guarantee of the performance of the borrower's obligations by Nasr Ibrahim, and

(b) a registered second mortgage over Nasr Ibrahim's land at Boston Road and Hammond Drive.

1. In about November 2011, the Respondent falsely attested Nasr Ibrahim's execution of -

(a) duplicate copies of a registrable mortgage of land over Boston Road, Lalor and Hammond Drive, Epping (JM Nominees Boston Road and Hammond Drive Mortgage),

(b) a deed of guarantee of the borrower's obligations,

(d) duplicate copies of a document titled "Mortgagor's Acknowledgment".

(a) a document entitled "Solicitor's Certificate" which said that -

(i) he had given independent legal advice to Nasr Ibrahim about the effect of the mortgage documents,

(ii) he had advised Nasr Ibrahim to obtain independent financial advice if in doubt about the viability of the transaction,

(iii) Nasr Ibrahim had told him, after receiving the advice referred to in paragraphs (a) and (b) that -

(B) he signed the mortgage documents freely and without pressure from anyone, and

(iv) Nasr Ibrahim had shown him evidence of identification that comprised a driver's licence and Medicare card.

(b) a document entitled "Certificate of Witness" by which he certified that -

(i) the JM Nominees Loan Boston Road and Hammond Drive Mortgage was signed in his presence,

(ii) he had positively identified Nasr Ibrahim by sighting his driver's licence,

(B) understood the nature and effect of the mortgage, and

(C) had considered the consequences of default, and

(iv) Nasr Ibrahim had answered "yes" to each of these questions.

1. On 6 December 2011, one of the duplicate copies of the JM Nominees Loan Boston Road and Hammond Drive Mortgage was registered over title.

1. On 20 February 2015, the Applicant commenced a disciplinary investigation without complaint under section 4.4.8 of the Act, having formed the view that there was reason to believe that the Respondent's conduct may amount to unsatisfactory professional conduct or professional misconduct, based on the following information provided to him by the Legal Services Board (the Board):

(a) On 12 February 2014, Nasr Ibrahim swore an affidavit in which he deposed that the signatures on documents associated with the JM Nominees Loan Agreement purporting to be his, were not his.

(b) On 12 September 2014, the Respondent met with a representative of the Board, Howard Bowles, and admitted-

(i) that he had written the signatures that purported to be his on certain documents produced in the meeting associated with the JM Nominees Loan and Asian Travel Centre Loan, and

(ii) he had not met with or discussed the documents with either Nasr Ibrahim or Rhonda Sidaoui.

(c) Later that day, the Board's Mr Bowles sent a letter to the Respondent in which he -

(ii) advised the Respondent that he was assessing his fitness and suitability to hold a practising certificate in light of the fact that the Respondent had signed the documents, and

(iii) required the Respondent to provide a written explanation of the circumstances in which he signed the documents, so that he (Mr Bowles) could consider that explanation as part of his assessment.

(d) On 26 September 2014, the Respondent had emailed Mr Bowles a written explanation of his conduct through his solicitors.

(e) On 7 November 14, the Respondent had provided the Board with a further written explanation.

1. On 27 February 2015, at the start of the s 4.4.8 investigation, the Applicant wrote to the Respondent's solicitors seeking his response to allegations of professional misconduct.
2. On 26 March 2015, the Respondent through his solicitors adopted his previous written explanations and made submissions against referral of the matter to the Tribunal.
3. In July 2015, the Applicant received information that the Respondent may have made false attestations on documents connected to the Nationwide Capital Loan. Between July 2015 and February 2016, the Applicant investigated the matter.
4. On 27 April 2016, the Applicant wrote to the Respondent's solicitors seeking his explanation as to why he had not previously disclosed his involvement in the Nationwide Capital Loan to the Applicant and had instead maintained that he had made false attestations on documents at Hisam Sidaoui's request on only a single occasion.
5. By letter dated 10 June 2016, the Respondent provided a response to these questions.
6. On 30 August 2016, the Applicant wrote to the Respondent's solicitors seeking his response to further allegations of professional misconduct.
7. By letter dated 21 September 2016, the Respondent through his solicitors provided a response to those allegations.
8. On 23 September 2016, Mr Bowles wrote to the Respondent's solicitors seeking his response to further allegations of professional misconduct.
9. By letter dated 29 September 2016, the Respondent through his solicitors provided a response to those allegations.
10. On 1 November 2016, the Applicant received information that the Respondent may have made false attestations on documents connected to the First Mortgage Capital Loan.
11. On 22 November 2016, the Applicant wrote to the Respondent's solicitors seeking his response to further allegations of professional misconduct arising from the First Mortgage Capital Loan documents.
12. By letter dated 13 December 2016, the Respondent through his solicitors provided a response to those allegations.
13. In April 2017, the Applicant identified further documents containing what it appeared might be false attestations by the Respondent related to the Asian Travel Centre Loan and the JM Nominees Loan.
14. On 10 May 2017, the Applicant wrote to the Respondent's solicitors seeking his response to further allegations of professional misconduct arising from those documents.
15. On 11 May 2017, the Respondent through his solicitors provided a response to those allegations.

Professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that on 7 November 2014 and 26 March 2015, in breach of his duty of candour to the Legal Services Board and the Legal Services Commissioner, the Respondent represented that he only falsely attested documents at Mr Sidaoui's request on one occasion, and was recklessly indifferent to the truth of that representation which was not true.

1. In 2013, JM Nominees Pty Ltd sued the Executors of Nasr Ibrahim in the Supreme Court of Victoria on the JM Nominees loan.
2. The executors counterclaimed against JM Nominees Pty Ltd and joined new parties to the proceeding by naming them as non-party defendants to the counterclaim, namely another mortgagee not directly relevant to this prosecution, Hisam Sidaoui, the Registrar of Titles, ASIC, and the Respondent.
3. Relevantly to the case against the Respondent, the counterclaim against the Respondent referred not only to the suit brought by JM Nominees, but also to the Nationwide Capital Hammond Road mortgage given by Nasr Ibrahim, even though neither Nationwide Capital Pty Ltd (the lender and mortgagee) nor Hakea Walk Pty Ltd (the borrower and mortgagor) were parties to the proceeding.

1. The matters pleaded by Nasr Ibrahim's executors in the counterclaim included the following -

(a) Nasr Ibrahim had never signed any loan document or guarantee in relation to the Nationwide Capital Loan or the Nationwide Capital Boston Road and Hammond Drive Mortgage or the JM Nominees Boston Road and Hammond Drive Mortgage,

(b) any such document purporting to contain his signature was a forgery,

(c) Nasr Ibrahim had never met, spoken to or had any dealings with the Respondent,

(d) the Respondent's attestations on these documents were false,

(e) the Nationwide Capital Boston Road and Hammond Drive Mortgage was dated 28 June 2011 and registered on title on 13 July 2011, and

(f) the JM Nominees Loan Agreement documents were signed on or about 28 November 2011.

1. On 25 August 2014, the Respondent through legal representatives appointed by the Legal Practitioners Liability Committee filed a Defence to the Counterclaim which pleaded that -

(a) the Respondent had written his signature on the Nationwide Capital Boston Road and Hammond Drive Mortgage and the JM Nominees Boston Road and Hammond Drive Mortgage, the Nationwide Capital Guarantee referred to in paragraph 12(c) above, and the solicitor's certificate referred to above in paragraph 25 above, and

(b) he could not recall the circumstances in which he did so.

1. Contrary to the sequence of events disclosed by the documents and pleadings in the counterclaim, the Respondent represented -

(a) in his response to Mr Bowles dated 7 November 2014, referred to in paragraph 27(e), and

(b) in the submissions made to the Board on his behalf through legal representatives, dated 26 March 2015, referred to in paragraph 9,

that his conduct in falsely attesting documents at Hisam Sidaoui's request was confined to a single occasion, being 27 July 2011.

1. In making these representations, the Respondent breached his duty of candour because -

(a) the representations were made to persons considering his ongoing suitability to continue to hold the practising certificate he then held and investigating his conduct under the Act,

(c) the Respondent was recklessly indifferent to whether they finding were false.

1. Mr Merhi has pleaded guilty to five charges of misconduct at common law. It is clear that his conduct would be regarded as disgraceful and dishonourable by practitioners of good repute and competency.[4] Accordingly, the five charges are proved.

1. This document proposes orders styled on the Court of Appeal's orders in Matthew Stirling v Legal Services Commissioner ([2013] VSCA 374). They are to the effect that Mr Merhi not be granted a practising certificate for two years, but the second year of this period is suspended for 18 months, on the basis that he not engage in professional misconduct or unsatisfactory professional conduct during that time. That is, in practical terms, he would be eligible to apply for a practising certificate 12 months after the date the Tribunal's order takes effect.

1. The Joint Submission on Penalty was put to me on the basis that:

The High Court has held that a body such as the Tribunal is permitted to receive and act upon submissions as to agreed civil penalties: Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2014) 326 ALR 476. The practice promotes the predictability of outcome for regulators and wrongdoers, and helps avoid lengthy and complex litigation: ibid at [46]. Whilst the Tribunal is not bound by the parties' agreement, it ought to act on them if it is satisfied that the agreed sanction is appropriate: ibid at [47ff].[5]

1. For the following reasons, I find that it is appropriate in this case to make orders in accordance with the joint submission put on behalf of both parties.

Circumstances and effect of the false attestations and certifications

1. The Tribunal has dealt with a number of cases where false attestations and certifications have been made, most commonly in relation to individual transactions where there have been no adverse consequences for borrowers or lenders. In Legal Services Commissioner v Lamplugh[6], the Tribunal said:
   1. Clearly, the courts and the community generally place great reliance on statements by solicitors that they have witnessed parties' signatures to important documents such as mortgages and associated declarations. The same applies to statements by solicitors that they have explained the effect of executing such documents to the parties involved. The making of false declarations by solicitors undermines the trust which is placed in them ...

1. ...The witnessing of mortgage documentation and explaining its effect are tasks which solicitors commonly carry out in Victoria. On occasion, solicitors will feel tempted or pressured into cutting corners in relation to these obligations. It is important that the profession and the public get the message that these are not just some unimportant bureaucratic requirement or mere "paperwork" but rather, are solemn obligations on which the effective operation of the legal system depends.
2. The false attestations and certifications made by Mr Merhi the subject of this proceeding are of a different order of magnitude. They were numerous. Mr Merhi's signature appears approximately 37 times throughout the documents. They occurred on four separate occasions, namely June, July, September and November 2011. On each of these occasions Mr Sadoui attended Mr Merhi's office and presented bundles of pre-signed documents to him.
3. Mr Merhi's conduct involved dishonesty in that he obviously knew he was not witnessing a person signing a document, and he knew that he had not provided the purported signatories with advice as to what the consequences of signing them were. He also knew that he had not verified their signatures.
4. Mr Merhi said he felt to some degree intimidated by Mr Sadoui, his former employer and pupil master, also a former President of the Islamic Society, when he came to his office and requested that Mr Merhi sign the various loan documents. In relation to a number of the transactions, Mr Sadoui told him that the borrowers and guarantors were his (Mr Sadoui's) sister, mother and father, and that Mr Sadoui had explained to them the implications of the documents, and that by signing these, Mr Merhi would be helping him out.
5. Mr Merhi said he was a victim of Mr Sadoui, in the sense that he completely trusted Mr Sadoui, he had no involvement in any frauds other than by making the attestations and certifications referred to and he did not receive any financial reward for signing the documents. These matters were accepted by the VLSC.

Effect of Mr Merhi's response to the regulators

1. The way in which Mr Merhi responded to the regulator's enquiries has had two consequences relevant to this proceeding. First, his written statements of 7 November 2014 and 26 March 2015 that there was only one occasion when he had falsely attested and certified documents, have led to a charge of breach of his duty of candour, in that he was recklessly indifferent to the truth of that representation.
2. Second, the fact that he did not initially provide information to the regulator about the other occasions when false attestations and certifications took place, and that the VLSC only became aware of these through other means (as other litigation and criminal processes concerning Mr Sadoui's frauds proceeded) meant that the disciplinary investigation and hearing process has been delayed.

1. Mr Merhi now accepts that had he considered the contents of the Counterclaim against him and his Defence of 28 August 2011 at the time he gave his responses to the VLSC on 7 November 2014 and 25 March 2015, he would have had his attention drawn to the fact that his conduct in making false attestations and certifications had not in fact been confined to a single occasion.[7] Although the Defence was not drawn by him, but by solicitors retained by the LPLC on his behalf, he rightly accepted that it was of course not a reason why he should not have had reference to it in providing those two responses.
2. These are the circumstances which give rise to the charge or professional misconduct at common law (charge 5) in that Mr Merhi was recklessly indifferent to the truth of his representation that such false attestations and certifications had only occurred on one occasion.
3. As noted, Mr Merhi's responses of 10 June and 13 December 2016, and 11 May 2017 were equivocal in that he at first said there had been two or perhaps three occasions when false attestations and certifications had been given. Ultimately, he accepts there were four such occasions.

1. Delay is a factor which is relevant to the determination of penalty. This matter commenced as an investigation by the LSB of Mr Merhi's suitability, in the context of his application to renew his practising certificate for 2014-15.
2. Although he first made admissions of false attestations and certifications in an interview with Mr Bowles, representing the LSB, on 12 September 2014, the LSC's investigation did not commence until 20 February 2015.
3. It took at least three months after Mr Merhi's statement of 26 March 2015 before the VLSC became aware of the Nationwide Capital transaction, although this was not put to Mr Merhi until April 2016.
4. And the VLSC did not become aware of the First Mortgage Capital transaction until November 2016. In both instances, the VLSC had to ascertain that these false attestations and certifications had occurred without any assistance from Mr Merhi.
5. While it is true that Mr Merhi did make some admissions at an early stage, clearly he did not make full admissions. His false statements that this conduct had only occurred on one occasion, clearly caused additional delay and expense in the conduct of the investigation. Mr Merhi only accepted that he had signed all the documents the subject of charges 1 - 4, on 25 May 2017.
6. By pleading guilty to charges 1 - 4, Mr Merhi accepts he did falsely attest and certify all the documents the subject of those charges. That is, he accepted that the doubts he had previously held about whether he signed the documents himself were now not well founded. But he only reached this point at 21 May 2017.
7. That said, there was a component of the delay which occurred other than as a result of his own conduct, and this should be taken in to account in the determination of penalty.
8. In relation to charge 5 (lack of candour) the plea occurred around the same time, and the charge was agreed to be amended from one which alleged that Mr Merhi knew his submissions of 7 November 2014 and 26 March 2015 'were, or were probably, false or misleading' to the final form, which alleges that he was 'recklessly indifferent to the truth of that representation [that the false attestations and certifications only occurred on one occasion] which was not true.
9. Although these are different formulations, it is clear that Mr Merhi was never charged simply with knowingly making a false representation. I do not regard this change in the wording as being of such significance as to provide a strong rationale for a change in Mr Merhi's response to that charge. That is, it is not a strong factor in his favour in terms of consideration of the question of delay.

1. Mr Merhi is entitled to credit for his guilty plea, which the VLSC accepts should be regarded as having been offered on 25 May 2017.
2. I accept that Mr Merhi is profoundly remorseful for his errors in making the false attestations and certifications. He has experienced great anguish and stress. His personal circumstances have been referred to above. His standing in the community has been reduced. His role as the major breadwinner for his family has been, and will be, adversely affected.
3. The six references and the written apologies to the VLSC and to victims of the frauds, which were tendered on behalf of Mr Merhi, reinforce the story of contrition and remorse told as part of his plea. The references refer to his willingness on a number of occasions to provide services at reduced fees or for no charge to clients who would otherwise not have the benefit of legal representation or advice. The referees also described him as honest and trustworthy in their experience. These referees include a member of counsel (Mr Max Grant), a psychologist (Dr Alan Fox), an immigration consultant (Mr Joseph Michael Zaia), a solicitor and former employee (Mr Michael J King), Mr Merhi's long time accountant (Ms Lily Moran) and the chairperson of the Victorian Lebanese Community Council Incorporated (Mr Michael Kheirallah, JP). It is clear from the references that these persons have many years combined knowledge of Mr Merhi, and know him well.

1. General deterrence is a relevant factor in determining penalty here. As noted above, attesting the execution of security documents and providing advice to borrowers are important functions carried out by solicitors. From time to time, solicitors will come under pressure to take short cuts, in order to 'do favours' for clients or friends. This case graphically illustrates why they should resist being pressed in this way.
2. It also illustrates why procedures for attestation, certification and verification of identity by solicitors are put in place, the consequences of them not being carried out punctiliously. Many hundreds of thousands of dollars have been lost, and victims' lives have been thrown into turmoil by the frauds which Mr Merhi's actions have facilitated.
3. General deterrence is obviously also important in relation to the breach of duty of candour charge.

1. I accept the joint submission that charges 1 - 4 should be dealt with globally as being a 'course of behaviour as opposed to a separate set of events.'[8] I also accept that charge 5 should be treated as a separate event for the purposes of determination of penalty.
2. While a breach of candour would generally be a more serious breach of a practitioner's duties, in this case the circumstances of the four occasions of false attestation and certification, spread over a period of five months, render that conduct particularly serious. They had far-reaching consequences. Mr Merhi had ample time to reflect on what he had done between the different occasions when it occurred. He signed documents in approximately 37 places. The mitigating factors here serve to influence the period of disqualification which should be imposed for the false attestations and certifications, rather than to suggest that there should be no disqualification.
3. In relation to lack of candour, this charge illustrates that a practitioner accepting he has done wrong things and admitting that in general terms is not necessarily enough. Mr Merhi's various responses perhaps suggest a tendency, having made his initial admission, to put his head in the sand and not give consideration to other occasions when he had done the same thing.
4. It was submitted that his failure to admit there had been multiple occasions when he had made false attestations and certifications, was not part of a sophisticated and calculated scheme to mislead the regulator. This was because it was said for Mr Merhi (and not contested by the VLSC) that on consideration of the documents put to Mr Merhi by the LSB at the outset, at the least, an implication arose that there was more than one occasion of false attestation and certification.
5. Accordingly, there does seem to have been an element of Mr Merhi putting his head in the sand, although this contention can only go so far given that the fact that there were four separate occasions of false attestation and certification, which only came to the regulator's attention through four separate revelations over the period from September 2014 to March 2017 - none of which were from Mr Merhi himself.
6. Hence, Mr Merhi's failure to advise the regulator of the other instances of false attestation and certification from the start of the VLSC's investigation was indeed reckless, and serious. He has accepted his response should have been informed by the Defence filed on his behalf in August 2011. Like charges 1 - 4, it too is so serious as to warrant a period of disqualification from practice.
7. In my view, the circumstances of this case are more serious than in LSC v El-Hissi[9], where the practitioner was prohibited from practising for nine months. That case concerned a young and comparatively inexperienced practitioner, who acted in conflict of interest, and succumbed to intense pressure from his father to purport to witness loan documents in the absence of the signatory, followed by breaches of the practitioner's duty of candour to the regulator in relation to that action. While the statements to the regulator were knowingly false or misleading, they related to a single loan transaction, and the practitioner was suffering mental health issues. In my view, the circumstances of the present case are more serious, including because there were four different occasions when Mr Merhi made the false attestations and certifications, spread over a five month period.
8. For all the reasons stated above I determine that the appropriate order is that Mr Merhi not be granted a practising certificate for a period of 14 months in relation to charges 1 - 4 and an additional 10 months in relation to charge 5. That is, that he not be granted a practising certificate for an aggregate period of two years, but with the second 12 months of that period being suspended for a period of 18 months.
9. Here, in practical terms, the minimum period for which Mr Merhi will be prohibited from practising is 12 months. The impact of that order on him will be significant (as will the obligation to repay monies paid out by the LPLC, plus the VLSC's costs in this case) and appropriately reflects the seriousness of the conduct, and the need for general deterrence. The suspension of the second 12 months of the disqualification period (for a period of 18 months) serves the purpose of reducing the risk of reoffending and thus serves the end of protecting the public.

[1] From 1 July 2015 the functions of the Legal Services Commissioner (LSC) were taken over by the Victorian Legal Services Commissioner (VLSC) under the Legal Profession Uniform Law Application Act 2014 (Vic). Schedule 1 to that Act is the Legal Profession Uniform Law.

References in this decision are to the LSC or VLSC as appropriate. The Legal Profession Act 2004 was repealed on 1 July 2015 and replaced by the Uniform Law. However, under the applicable transitional provisions, this matter falls to be determined under the 2004 Act.

[3] I was told this should in fact be referred to as 'Further Amended Application and Statement of Agreed Facts' since an amended version had been filed with the Tribunal, dated 30 May 2017.

[4] Re A Solicitor [1960] VicRp 96; [1960] VR 617, 620 per Dean J.

[5] Applicant's Outline of Submissions on disposition at [4].

[6] [2012] VCAT 279.

[7] Noting also that these issues were obviously raised with him at the time he was interviewed by Mr Bowles for the LSB, on 12 September 2014.

[8] Matthew Stirling v Legal Services Commissioner [2013] VSCA 374 at [73] - [75].

[9] [2013] VCAT 325.