Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the Law Society of New South Wales v DRE [2021] NSWCATOD 4 Hearing dates: 6 October 2020 Date of orders: 19 January 2021 Decision date: 19 January 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President M Schyvens, Deputy President Emeritus Professor P J Foreman AM, General Member Decision: (1) The respondent is reprimanded. (2) The following conditions are to be imposed upon any practising certificate issued to the respondent after the date of these orders, and these conditions must remain for a period of 12 months from the date of issue of the first such practising certificate: (a) [DRE] is restricted to practising the law only as an employee of a law practice, corporation or government authority, or as a volunteer at a community legal service; (b) [DRE] is to be subject to the supervision of a solicitor with an unrestricted practising certificate, and such supervisor is to report to the Council of the Law Society of New South Wales at four month intervals during the currency of this practising certificate. (c) [DRE] must not supervise any other legal practitioner. (3) The respondent is to pay the applicant's costs as agreed or assessed. (4) The disclosure of the name of any person or law practice referred to in the Application for Disciplinary Findings and Orders filed on 24 February 2020, or any material fact or information that could identify those persons or law practices, is prohibited. (5) Access to and disclosure of documents and evidence filed in the Tribunal in relation to this matter is restricted to the Office of the Legal Services Commissioner, the parties and their respective legal representatives. Catchwords: PROFESSIONS AND TRADES – lawyers - professional misconduct – whether fit and proper person – appropriate order Legislation Cited: Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: A Solicitor v Law Society of New South Wales (2004) 216 CLR 253 Council of the Law Society of New South Wales v DRE [2019] NSWCATOD 147 Council of the Law Society of New South Wales v DXW [2019] NSWCATOD 101 Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Dupal v Law Society of NSW [1990] NSWCA 56 Law Society of New South Wales v Walsh Category: Principal judgment Parties: Council of the Law Society of New South Wales (applicant) DRE (respondent) Representation: Counsel: P Maddigan (applicant) R Hollo SC (respondent) Solicitors: Law Society of New South Wales (applicant) Moray & Agnew Lawyers (respondent) File Number(s): 2020/00059867 Publication restriction: 1. The disclosure of the name of any person or law practice referred to in the Application for Disciplinary Findings and Orders filed on 24 February 2020, or any material fact or information that could identify those persons or law practices, is prohibited. 2. Access to and disclosure of documents and evidence filed in the Tribunal in relation to this matter is restricted to the Office of the Legal Services Commissioner, the parties and their respective legal representatives. REASONS FOR DECISION 1. On 24 February 2020, the Council of the Law Society of New South Wales ('the Council') filed proceedings in the Tribunal under s 23(5)(a) of Part 5 to Schedule 9 of the Legal Profession Uniform Law Application Act 2014 (NSW), recommencing an Application for Disciplinary Findings and Orders against DRE which had been filed in 2018 under the Legal Profession Uniform Law (NSW) ('the Uniform Law'). We will refer to the recommenced application as 'the Application', and to DRE's reply to the Application as 'the Reply'. We will refer to the person who brought this matter to the attention of the Council as 'the Complainant'. 2. The application filed in 2018 had been dismissed in Council of the Law Society of New South Wales v DRE [2019] NSWCATOD 147 on account of the same procedural defects as those identified in the decision in Council of the Law Society of New South Wales v DXW [2019] NSWCATOD 101. Non publication orders 1. Interim non-publication orders have been made in the Tribunal. The events the subject of these proceedings have been the subject of proceedings in the Supreme Court of New South Wales. We accept the evidence of Ms Foord, a solicitor for the Council, in her affidavit of 19 December 2018, that non-publication orders were made in the Supreme Court proceedings on 13 April 2018. To ensure that those non-publication orders are complied with in these proceedings, we will make this Tribunal's non-publication orders ongoing. The Supreme Court orders render the subject matter of the non-publication orders 'confidential' within the meaning of s 64 of the Civil and Administrative Tribunal Act 2013 (NSW). The Application 1. The Council alleges that DRE is guilty of professional misconduct with respect to each of two complaints. 2. The Council seeks an order recommending that DRE's name be removed from the Supreme Court roll. 3. By way of background, the Application recites, and it is admitted by DRE in her Reply, that DRE was admitted to practice on 6 October 2000. She was a supervised partner at Firm A from 1 January 2011 to 13 January 2011, and then a partner at Firm A from 14 January 2011 to 30 April 2016. From 1 May 2016 to 31 August 2018 she was a partner at Firm B. 4. In the Application, it is asserted that the Complainant in relation to this matter was an employee at Firm A from about August 2015 to 6 March 2016. It is also asserted that, from 6 March 2016 to late 2016, the Complainant was an employee at Firm B. The Complainant was under the supervision of DRE at both firms. DRE, in the Reply, says that the Complainant was an employee of Firm B from 14 March 2016 to 11 January 2017 and admits the dates in the application regarding Firm A. The difference in dates is not material to the issues in this matter. Complaint 1 1. Complaint 1 is as follows: On or about 3 March 2016, for the purposes of obtaining an Australian passport for AJC (daughter of DRE and PDC), DRE: (a) signed the passport application with a signature purporting to be that of PDC; (b) procured the false witnessing, by the Complainant, of the signature purporting to be that of PDC on the passport application when she knew that the signature of PDC on the said document was not that of PDC. (c) lodged the said passport application at an Australian [sic] post outlet knowing that the signature on the application was not that of PDC and that the signature had not been witnessed. 1. It is alleged in the particulars to the Application that, on 29 February 2019, DRE booked flights for herself and AJC to travel overseas in April 2016. However, DRE was unable to obtain a Travel Authorisation because AJC's passport was due to expire less than 6 months before the planned departure date. Between 29 February 2016 and 3 March 2016, DRE obtained a Child Passport Application form ('the CPA form') in order to apply for a new passport for AJC. Paragraph 5 of the CPA form had a location for the placement of signatures marked 'Mother's signature' and 'Father's signature' at Item 15 of the form. DRE admits these facts in the Reply, and further admits that the signature of both the father and the mother of AJC were necessary to complete the CPA form. 2. In her Reply, DRE admits that, on or about 3 March 2016, she affixed a signature to the CPA form in the location marked 'Father's signature'. DRE admits that an observer who was not aware that DRE had affixed that signature in that location would reasonably apprehend that AJC's father had signed the CPA form in that location. DRE says, in her reply, that AJC's father, PDC, had consented to DRE completing the CPA form to enable AJC to travel. 3. It is alleged in the Application that, on 3 March 2016, DRE provided the Complainant with the CPA form which had purportedly been signed by PDC. DRE admits that she provided the Complainant with the CPA form with a signature in the location for the father's signature. 4. It is alleged in the Application that DRE requested the Complainant to witness the purported signature of PDC in circumstances where PDC was not present, PDC had not signed the CPA form, DRE knew that PDC had not signed the CPA form and DRE had affixed the purported signature of PDC to the CPA form. These allegations are admitted by DRE in her Reply. 5. DRE also admits, in her Reply, the allegations in the Application that the Complainant signed the CPA form as witness to PDC's signature notwithstanding that PDC was not present at the time, and the Complainant did not, in fact, witness his signature. DRE also admits that she lodged the CPA form at a post office on 3 March 2016. 6. It is alleged in the Application (in paragraph 13) that, at the time that DRE lodged the CPA form, she was aware that the purported signature of the father on the CPA form was not the signature of AJC's father, PDC, that that signature had not been affixed by PDC, that DRE had affixed that signature, that the presence of the purported signature of PDC on the CPA form falsely represented that the CPA form had been signed by PDC, that the purported signature of PDC on the CPA form had not been witnessed by the Complainant and that the representation on the CPA form that the Complainant had witnessed the purported signature of the father was false. In her Reply, DRE substantially admits these allegations. 7. The Application alleges that DRE is guilty of professional misconduct under s 297 of the Uniform Law, and, further, or in the alternative, at common law. In her Reply, DRE admits these allegations, subject to the reservations recorded above. In the course of the hearing, the Council withdrew the allegation that the conduct the subject of Complaint 1 constituted professional misconduct at common law, on the basis that the affixing of the signature by DRE to the CPA form in the location for the father's signature and the purported witnessing of that signature by the Complainant were not events which occurred in the course of legal practice, and did not, therefore, constitute professional misconduct at common law. DRE agreed, and withdrew her admission accordingly. The Council cited Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [45] per Brereton JA, citing A Solicitor v Law Society of New South Wales (2004) 216 CLR 253: 45. Misconduct unconnected with professional practice is not within the common law concept of "professional misconduct", [25] though it is now within the statutory definition in s 297(1)(b) of the Uniform Law. However, such conduct has always been capable of founding an order for removal, because it may manifest unfitness and incompatibility with the requisite personal qualities for membership of the profession, and may do so even in the absence of a criminal conviction. [26] Thus a finding of "professional misconduct" – let alone a formal declaration to that effect – is not a necessary precondition of an order for removal. Nor is a declaration that the practitioner is not of good fame and character a necessary precondition of an order for removal, although a finding to that effect might well warrant such an order. Moreover, as conclusion of unfitness is inherent in the making of the order, so again a declaration to that effect is unnecessary surplusage. As has often been observed, even where the order is unopposed, the Court should set out its findings of fact, so that on a later re-admission application, the basis on which the Court acted is clear. However, findings of fact should not ordinarily be formulated as declaratory decrees. Complaint 2 1. Complaint 2 is as follows: 2. In the course of an investigation of allegations made by the Complainant to [Firm B], [DRE] attempted to mislead the principals of [Firm B] by denying the Complainant's account of the matter in issue by stating that there was no irregularity with the passport application witnessed by the Complainant. 1. It is common ground between the parties that the Complainant made a complaint to Firm B in or about September 2016. 2. It is alleged and admitted that among the allegations made by the Complainant to Firm B was the following: Whilst at your previous firm, [DRE] committed fraud relating to the signature of a personal (non-work related) document. 1. It is common ground that Firm B commenced an investigation into the Complainant's complaint. DRE received an email on 15 September 2016 from a partner of Firm B confirming that the investigation was taking place. DRE received, by email, particulars of the allegations made by the Complainant on 3 October 2016. 2. It is alleged in the Application, in paragraph 21, that the particulars received by DRE on 3 October 2016 made the following allegation (the Passport Allegation): Passport allegation It is alleged that you committed a fraud relating to the signature of a personal (non-work related) document. The particulars of the allegation are: While you were a partner at [Firm A], on 3 March 2016, you requested [the Complainant] witness your ex-husband's signature on your child's passport renewal form. You told [the Complainant] that your ex-husband had been into the office earlier that day and had already signed the form. Your ex-husband had not signed the form. You had signed the form, passing this off to [the Complainant] as your ex-husband's signature. At the time of your request to [the Complainant] [s/he] was not aware that you had signed the form as your ex-husband. The Complainant was contacted by the agency dealing with passport fraud in relation to this matter. You later disclosed to the Complainant that you had signed the form as your ex-husband. The Complainant felt like [s/he] was compelled to witness the form at the time. [sic] 1. In her Reply, DRE admits that the passage quoted in paragraph 21 of the Application appeared in the allegations attached to the email of 3 October 2016. 2. It is common ground that DRE was interviewed in the course of Firm B's investigation. 3. It is alleged in the Application, in paragraph 23, that DRE gave the following response to the Passport Allegation in the course of the investigation: [The Complainant] witnessed [DRE's] divorce papers and had met DRE's ex-husband at this time. [DRE] was going on gardening leave as a result of resigning from [Firm A]. [DRE] had arranged to go to NY. Realised that did not [sic] have a valid passport for daughter. [DRE] was trying to arrange an urgent passport for daughter. [DRE's] ex-husband ([PDC]) came into the [Firm A] office to sign the form for an emergency passport. [The Complainant] witnessed [PDC] sign the form. [DRE] says that this did not happen on 3 March it was earlier in the week. The issue arose when as part of a check to ensure that [DRE] had authority to travel with her daughter so close after a divorce, passport control called [PDC] to confirm that he gave his authority for the travel. [PDC] said that he had not given his authority. [DRE] says that [PDC] was confused – he had signed the authority part of the form but didn't realise that this was the authority when asked. Because of his response pass port [sic] control chased up [DRE] and [the Complainant] to check [PDC's] response. [DRE] says that [PDC] has always done irresponsible things like this. That he makes her life difficult. This was resolved quickly when [PDC] clarified with passport control and the passport was issued on 11 March. … [DRE] says that [a partner of Firm B] is aware of what happened – she told him about it at the time. [DRE] says she doesn't know why [the Complainant] would say that [s/he] didn't witness [PDC] sign the document – [s/he] was definitely there. [DRE] says that it is not believable that [the Complainant] would feel compelled to do anything…. 1. DRE admits that she gave a response to the effect of the words set out in the Application in paragraph 23, but otherwise, in her Reply, does not admit the allegations in that paragraph. 2. It is alleged in the Application that the response given by DRE, set out in [23] above, was false, in that PDC did not come into the offices of Firm B to sign the CPA form, PDC did not sign the CPA form, the Complainant did not witness PDC sign the CPA form and the Complainant 'purportedly witnessed the Father's signature on 3 March 2016'. In her Reply, DRE admits that her response was false as alleged. 3. It is alleged in the Application that DRE was aware that her response, set out in [23] above, was false at the time that it was made. DRE admits in her Reply that she was aware that her response was false, except in respect of the allegation that the Complainant purportedly witnessed PDC's signature on 3 March 2016. As the matter has progressed, it has become clear that the date on which the Complainant signed the document was either 3 March 2016 (when DRE lodged the CPA form at the post office), or shortly prior to that date, and that it is immaterial whether it was 3 March 2016 or prior to that date. 4. It is alleged in the Application, and DRE admits, that a report was prepared in relation to the investigation in which the following findings were made about the Passport Allegation: In relation to the Passport claim, in accepting the evidence of [a partner] and [DRE], I can make no other finding than [the Complainant] did not tell the truth about the facts in dispute, particularly about whether [the Complainant] had witnessed [DRE's] ex-husband sign the passport form or not. This is a very serious allegation which I consider goes to the heart of the employment relationship and consideration will need to be given as to whether the firm has confidence in [the Complainant] performing [his/her] role as a senior lawyer in the firm. … On the balance of probabilities I find that the allegation is not substantiated. I make this finding because the evidence of [the partner] substantiates [DRE's] evidence. … I find that it is more likely that [the Complainant] has not told the truth in saying that [s/he] signed the passport form without [PDC] present at the time. 1. It is alleged in the Application, and DRE admits, that, on 24 November 2016, at 10:41am, a partner of Firm B (not the partner referred to in the findings set out in [27]) sent an email to DRE in the following terms: [The Complainant] has made some challenging allegations about incidents in which [s/he] says you have been involved and you have indicated that the allegations are unfounded. In order to give us the requisite level of assurance that we can deal with [the Complainant's] personal situation, can you please confirm by return email that without any reservation or qualification (1) there was no informality at all about the passport application to which Y (sic) has referred, and (2) you and the father of your daughter each applied your signatures personally to the passport application and each, so far as you can know, in sight and presence of the person who signed as witness. 1. It is common ground between the parties that, on 24 November 2016, at 10:44am, DRE sent an email to the partner who was the author of the email in [28], and the email said: I can confirm the matters below. There was no informality with our daughter's passport applications and both [PDC] and I executed forms in the presence of the witness who signed as a witness. 1. It is alleged in the Application, in paragraph 30, that the content of the email set out in [29] above was false. In her Reply, DRE says that she intended the email to refer to the resubmitted passport application for her daughter, which was properly signed and witnessed. Further, DRE says that she: accepts that the Email Statement was misleading in that she had affixed the signature of the Father to the original application for the Daughter's passport with his consent and that signature had been witnessed by the Complainant. 1. In her Reply, DRE denies the allegation that she was aware of the falsity of the email set out in [29] at the time that it was made. 2. It is pleaded in the Application that DRE is guilty of professional misconduct, both within the meaning of s 297 of the Uniform Law and at common law. DRE, in her Reply, admits that she is guilty of professional misconduct within the meaning of s 297 of the Uniform Law and at common law, on the version of the facts which emerge from her Reply rather than on the version set out in the Application. Orders Sought 1. The orders sought by the Council in the Application are: 1. An order recommending that the name of the Solicitor be removed from the Roll. 2. The Solicitor pay the costs of the Society as agreed or assessed. 3. Any further or other orders the Tribunal deems appropriate. Evidence 1. We have had regard to the affidavits filed by each party in this matter, including those filed before the application was dismissed and then recommenced. We also heard evidence from DRE. The context in which the events the subject of Complaint 1 and Complaint 2 took place is largely uncontested. 2. Complaint 1 concerns actions performed by DRE and the Complainant in relation to the CPA form on or about 3 March 2016. 3. DRE and PDC separated in 2014, having been married for some years and being the parents of a daughter, AJC. The divorce was stressful for DRE. DRE was given sole custody of AJC. In the division of the matrimonial property, PDC received the entire proceeds of the sale of the matrimonial home, all of the furniture and household items and the only car. DRE paid all of the legal fees for the divorce and property settlement, and also paid PDC's rent and living expenses until the finalisation of the divorce. PDC gave a release from any claim against DRE's superannuation and from any claim for spousal support. 4. In 2015, DRE's father became unwell. He was eventually diagnosed with a serious debilitating illness. His health deteriorated, and he died in 2017. Between 2016 and 2017, DRE provided financial assistance to her parents to fund her father's care. DRE was distressed about her father's condition. 5. From 2015, it emerged that AJC had a condition which gave rise to health, academic and behavioural symptoms. As a sole parent, DRE had to manage these issues. 6. DRE had become unhappy with her work environment at Firm A by late 2015. DRE was offered a partnership at Firm B, which she accepted on 29 December 2015. She resigned from Firm A on 13 January 2016. 7. DRE knew that the terms of her partnership agreement at Firm A provided for 9 months notice to be given by a departing partner. However, she had observed, over her many years of working at Firm A, that departing partners were not usually required to serve the whole 9 month notice period. She expected that she, also, would be able to negotiate a shorter notice period. However, Firm A's initial position was that DRE would be required to serve the whole 9 months notice period. There then followed a period of uncertainty about when DRE would be able to leave and join Firm B, which DRE found very stressful. She found her last months at Firm A difficult. For some time, she was prevented from disclosing her intention to leave to staff and clients. However, rumours circulated, and she constantly had to field questions she could not answer. 8. DRE was the source of work for much of her team at Firm A. As rumours circulated, some members of the team became very concerned about their job security. The Complainant was a member of DRE's team. She accepted a job offer from Firm B. She left Firm A in early March 2016 and joined Firm B. Other members of DRE's team at Firm A were also recruited by Firm B. 9. Firm A announced DRE's departure in early March 2016. During February 2016, when she had no certainty about her departure date, DRE became very concerned about her ability to resource the work required in her practice. She was concerned that she would not be able to resource the work and that her professional reputation would suffer and the survival of her practice may be threatened. During this period of time, DRE was tearful, frequently nauseous, and lost weight. She was anxious, and had difficulty sleeping. 10. DRE had a relative who lived overseas. DRE was discussing her difficulties with that relative in the early months of 2016, and that relative urged her to take some leave and visit her overseas. Firm A agreed to allow DRE to take some of the leave owing to her in April 2016. On 29 February 2016, DRE purchased airline tickets for an overseas trip in April 2016 for herself and AJC. 11. On 1 March 2016, DRE realised that AJC's passport had less than 6 months until it expired, meaning that it could not be used to obtain a travel authorisation. DRE obtained the necessary documentation to apply for a new passport for AJC. She raised the issue with PDC, who was willing to co-operate to obtain the new passport. DRE and PDC arranged for PDC to attend at Firm A to sign the CPA form. However, on that day, which we find was 3 March 2016, PDC telephoned DRE and said that he was not able to get to her office. DRE was anxious about the time that it would take to get the passport after the CPA form was lodged. DRE signed PDC's name on the CPA form in the space for the father's signature. She asked the Complainant to sign the CPA form in the space for the witness to the father's signature and the Complainant did so, although she had not, in fact, witnessed the signing of the father's signature. DRE then took the CPA form to a post office and lodged it. 12. With the exception of one file, the practice conducted at Firm A by DRE and her team was transferred to Firm B in mid to late March. DRE indicated, in her affidavit of 22 May 2019, that it was her expectation, following the transfer of the files to Firm B, that the Complainant would adequately manage that practice at Firm B as well as managing other members of the legal team, in the period prior to DRE's arrival at Firm B. 13. DRE became a partner at Firm B on 1 May 2016 and her first day at Firm B was 2 May 2016. 14. Directly upon her arrival at Firm B, DRE became concerned about the manner in which the practice which had been transferred from Firm A had been managed. The Complainant seemed to be unhappy at Firm B, and took some leave beginning on 3 May 2016. 15. DRE felt isolated at Firm B in her first few months. The Complainant took leave several times, and DRE experienced difficulty resourcing the work. The Complainant had made a number of complaints to the human resources section of Firm B and also to the IT section. There was conflict within the team. DRE felt responsible for bringing staffing problems to Firm B, and she was worried that she might not be able to make good her predicted billings. 16. DRE was worried that Firm B would seek to have her leave the firm. The resourcing issue was not giving her time to build relationships with partners at the firm, or to integrate into the firm. She was not able to consolidate her relationships with her clients, or to seek new work. The financial results that she had promised Firm B were not being delivered because the files were not being properly managed. 17. The situation at Firm B led to DRE experiencing difficulty in sleeping. Following the divorce, she was not in a secure financial position. Her father's health, her daughter's needs, and the complications with her new partner all affected her on an on-going basis. 18. In August 2016, the Complainant emailed DRE to propose a meeting to 'sort things out'. DRE informed the head of the human resources team at Firm B that she intended to accept the invitation and meet with the Complainant. DRE was then advised by the head of the human resources team that she must not meet with the Complainant and that the Complainant had made allegations against her which were going to be investigated. DRE was told that the allegations were that DRE had been falsely recording time and that there were irregularities with a passport application for DRE's daughter. 19. In the course of the telephone call with the head of the human resources team of Firm B, DRE said, of the allegations, 'this is just complete garbage'. She accepts that the inference from this was that she denied both allegations, and she accepts that this was misleading with respect to the allegation regarding the Passport Allegation. DRE has consistently denied the allegation of fraudulent time recording, and no such allegation has been pursued against her in this Tribunal. 20. On 15 September 2016, by email, DRE was informed that an investigation by Firm B into the allegations against her would be conducted by an investigator ('the Investigator'). 21. On 3 October 2016, the Investigator provided DRE with an email to which was attached a table in which the allegations were set out. The Passport Allegation set out in [20] above was contained in that attachment. 22. DRE spent much of 3 and 4 October 2016 investigating the allegations regarding the misrecording of time. She was highly stressed and anxious. 23. On 5 October 2016, DRE was interviewed by the Investigator. The allegations regarding the misrecording of time occupied the first two hours of the interview. By the time the Passport Allegation was raised, DRE was exhausted and humiliated. She was aware that she had already indicated to the head of human resources that the allegations were 'garbage'. 24. In response to the Investigator's question at the interview on 5 October 2016 with respect to the Passport Allegation, DRE says, in her affidavit of 22 May 2019, the following: I therefore said that [PDC] had attended [Firm B's] office and signed the passport application in [the Complainant's] presence, knowing that was incorrect. I also said that [PDC] was confused about the form he had signed when he received a phone call from DFAT, when to my knowledge [PDC] was confused about the form I had signed in his name and asked [the Complainant] to witness. 1. On 10 October 2016, the Investigator provided DRE with a document in which the Investigator had set out the responses DRE had given her at the interview of 5 October 2016 with respect to the allegations (see [23] above). 2. DRE responded to the Investigator by email on 12 October 2016. DRE indicated, in her affidavit of 22 May 2019 that she recognised that, in her response of 12 October 2016, she failed to take the opportunity to correct the response she gave at the interview of 5 October 2016 with respect to the passport application. 3. DRE was informed of the outcome of the Investigator's investigation on 27 October 2016. She was not provided with a copy of the Investigator's report at that stage, and did not see it until later. 4. On 24 November 2016, a partner of Firm B telephoned DRE and told her that the Complainant was insistent with respect to the Passport Allegation. In her affidavit of 22 May 2019, DRE said that she had the following exchange with the partner, in that telephone conversation: Partner: She isn't letting this go. She is insistent that [AJC's] passport was falsely issued. That the application was fraudulent. DRE: There isn't anything wrong with [AJC's] passport. It was 100% validly issued. Partner: Because [the Complainant] is insistent, I'm going to send you an email to confirm your take on this. 1. DRE says, in her affidavit of 22 May 2019 at paragraph 91: This conversations was the first time that the validity of [AJC's ] passport had been questioned. I knew that the passport which was issued was valid – because [PDC] had resubmitted his part of the form, which led to the passport. I understood [the partner] wanted to have assurance about the passport, not that the allegations about the application were being reopened. 1. The partner followed up on his telephone conversation with DRE on 24 November 2016 with an email which is set out in [28] above. DRE responded on the same day and her email is set out in [29] above. 2. In 2016, DRE was in the early stages of a relationship with a man who she would later marry. In late 2016, a workmate of DRE's future husband, with whom he had also had a relationship, began to telephone and email DRE at work to go over what had happened between the workmate and DRE's future husband. The workmate continued to do this for about 6 months. 3. Throughout December 2016 and January 2017, the events of 2016 preyed upon DRE's mind. She came to see that her behaviour was below her ethical standards. She believed that she had 'dug herself into a hole' with her persistent failure to disclose her conduct in the matter of the passport application. She experienced shame, remorse and a feeling of helplessness. She spoke to quite a few people who were trusted friends or family members and told them what she had done and sought advice as to what to do. 4. In December 2016, PDC telephoned DRE to tell her that DFAT had contacted him with a view to arranging to interview him at a police station. 5. On about 31 March 2017, the Law Society served a notice on DRE under s 371 of the Uniform Law. She obtained legal advice and responded to the notice, conceding that PDC had not signed the first CPA form. She also invited the Law Society to serve a further s 371 notice. 6. On 5 May 2017, DRE's solicitor was informed that the Law Society had instigated an investigation into DRE's conduct. A further notice under s 371 of the Uniform Law was served on DRE. DRE's solicitor informed her of these matters, and she arranged a meeting with the managing partner of Firm B. 7. The meeting between the managing partner of Firm B and DRE occurred on 9 May 2017 and was also attended by the firm's General Counsel. DRE admitted her conduct with respect to the Passport Allegation and her incorrect answers with respect to the Complainant's allegations throughout the Firm B investigation of the matter. She offered to retire from the firm, and that offer was not accepted. 8. DRE continued to work at Firm B from May 2017 to mid-2018. Her practice improved, and so did her relationships within the firm. She was given increased management responsibilities and greater exposure to clients. However, she continued to experience a high level of stress as the investigation continued. She was also concerned about her financial position, having expended her savings on legal fees. 9. DRE's partner accepted a position outside of Sydney in June 2018. DRE decided that she and AJC should go with him, so DRE resigned from Firm B. Her last day of work at Firm B was in July 2018. 10. DRE formed the view that it would not be appropriate to take up a new position practising the law while the Law Society's investigation was continuing. She did not renew her practising certificate for the 2019/2020 financial year and has not held a practising certificate since. She has held several temporary part time positions since leaving Firm B which have not involved the practice of the law. 11. The application for disciplinary findings and orders against DRE with respect to the conduct the subject of these proceedings was filed on 19 December 2018. However, as we have said, those proceedings were subsequently dismissed on account of procedural defects in the bringing of the proceedings. Following legislative intervention, the application was recommenced under the Legal Profession Uniform Law Application Act 2014, Schedule 9, Part 5, clause 23(5)(a). Professional Misconduct 1. The Uniform Law provides, 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. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. 1. In relation to Complaint 1, DRE concedes that the complaint has been made out and that she is guilty of professional misconduct under s 497(1)(b) of the Uniform Law. 2. The particulars of Complaint 1 have been established to the requisite standard of proof in the affidavit evidence which has been tendered in this matter. 3. In relation to Complaint 2, DRE concedes that the complaint has been made out and that she is guilty of professional misconduct, both under s 497(1)(b) of the Uniform Law and at common law. 4. DRE has conceded that all of the particulars of Complaint 2 have been established to the requisite standard of proof, except for particular 31. Particular 31 refers to the email that DRE sent on 24 November 2016 to a partner of Firm B in response to an email he had sent her earlier in the day. These events are referred to above at [28], [29] and [61]-[63] above. In her email, DRE said: Dear [Partner] I can confirm the matters below. There was no informality with our daughter's passport applications and both [PDC's] and I executed forms in the presence of the witness who signed as a witness. 1. The email which outlined the 'matters below' is set out at [28] above. 2. Particular 31 alleges: The Respondent was aware of the falsity of the Email Statement at the time it was made. [ie, DRE's email of 24 November 2016] 1. DRE admits that her email of 24 November 2016 was misleading, but she denies that she knew that it was false. She says that she thought she was responding to a concern about the validity of AJC's passport. 2. DRE's email of 24 November 2016 refers to plural 'passport applications' and 'forms'. The text of the email is objectively untrue because one of the 'passport applications' and one of the 'forms' submitted to DFAT was 'informal'. DRE has admitted the 'informality' of the first passport application. To that extent, Particular 31 has been established. Any train of thought that DRE may have had which involved an interpretation of her own email in such a manner and in such a context that she could say that she was not aware of the falsity of the email statement involves her ignoring the context of the email exchange and the literal meaning of her own email. However, DRE was not cross examined about her denial of particular 31, so we are not prepared to find that, at the time that she sent the email, she had not somehow convinced herself that it was not false. 3. Complaint 2 has been made out in any event. Protective Orders - Principles 1. It is well established that the disciplinary jurisdiction under the Uniform Law is protective and not punitive (see Dupal v Law Society of NSW [1990] NSWCA 56 per Hanley JA). The jurisdiction is to be exercised so as to protect the public against further default by the practitioner, as well as to protect the public against similar defaults by other solicitors by marking the seriousness of the conduct in the matter in question. The need to maintain the high standards of the profession as a whole is a relevant consideration (see Law Society of New South Wales v Walsh [1997] NSWCA 185 (Walsh) per Beazley JA at 40). 2. The Council seeks an order recommending to the Supreme Court that DRE's name be removed from the roll. In Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53, the Court of Appeal said, at 31: Where an order for removal from the roll is contemplated, the ultimate issue is whether the practitioner is shown, at the time of the hearing, not to be a fit and proper person to be a legal practitioner of the Supreme Court. 1. Not every finding of professional misconduct will require a conclusion that removal from the roll is the appropriate order (A Solicitor v Law Society of New South Wales (2004) 216 CLR 253 (A Solicitor)). 2. In Walsh, at p 43-44, Beazley JA said: The principles, then, which should guide the Court and, I should add, the Legal Services Tribunal, in determining the appropriate penalty may be summarised shortly: * The Court's power is discretionary; * Subject to considerations which would compel the Court to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner's name from the roll when the practitioner has been found not to be of good fame and character; * The subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Court's jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the Law Society of Bar Association. The relevance of mitigating conduct of that type is that it encourages practitioners guilty of misconduct promptly to report it; * In general, mitigating factors, such as evidence of respected reputation, no previously found misconduct, or service to the profession "are of considerably less significance than in the criminal sentencing process" 1. The Tribunal should not recommend to the Supreme Court that a practitioner's name be removed from the roll unless the Tribunal is 'satisfied that the reason for disqualification is permanent or at least of indefinite duration' (Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [33] per Basten and Meagher JJA). 2. Matters like the present case turn upon a close consideration of their own facts (see A Solicitor at [37] and Parente at [50]). Protective Orders – Consideration 1. The principles set out in Walsh, and quoted at [87], above, require us to consider the nature of the practitioner's conduct, in the context of what it reveals about her fame and character. 2. In relation to Complaint 1, in March 2016, DRE signed the CPA form in her ex–husband's name, and procured the false witnessing by the Complainant of the false 'signature' on the form. DRE then lodged the form with the Department of Foreign Affairs and Trade by lodging it at an Australia Post outlet. DRE did these things in the knowledge that they constituted an impermissible and improper way of completing a Child Passport Application form. 3. The conduct of DRE which constitutes Complaint 1 is not conduct in the course of legal practice. It is, however, dishonest conduct which had the potential to undermine the integrity of the Australian Government's system for the secure issue of passports. It was rightly conceded that it is conduct which is of such seriousness that it constitutes professional misconduct as defined in the Uniform Law. DRE did not admit the conduct to anyone other than members of her family and friends until March 2017, when she made admissions to the Law Society in the context of an investigative process initiated by the Law Society. 4. In relation to Complaint 2, DRE's conduct constituted the misleading, by her, of the principals of Firm B, on 5 October 2016 in the course of an interview with an investigator, and on 24 November 2016 in an email to a partner of Firm B, by denying the Complainant's accusation against her with respect to the CPA form 'witnessed' by the Complainant. At the interview on 5 October 2016, DRE falsely told the investigator that her ex-husband had come into Firm A's office to sign the form for 'an emergency passport'. She also said that she didn't know why the Complainant would say that the Complainant did not witness DRE's ex-husband's signature as 'she was definitely there'. One of the effects of DRE's lies was that the investigator wrongly made a finding, in relation to the passport application issue, that the Complainant 'did not tell the truth about the facts in dispute'. Another effect was that the investigator, in her report to the partners of Firm B, raised the issue of the impact of the Complainant's supposed dishonesty on the confidence that Firm B could place in the Complainant. DRE had the opportunity to correct her false statements to the investigator when the investigator sent her a copy of her notes of the interview. DRE did not take this opportunity. 5. Complaint 2 involved conduct which occurred in the course of legal practice. It involved dishonesty on the part of DRE which was maintained, with respect to the partners of Firm B, in a sustained, strategic and calculated manner from October 2016 to 9 May 2017 when DRE made admissions to the managing partner of Firm B in a meeting DRE arranged following the making of admissions by her to the Law Society. The conduct represented a sustained lapse in integrity on the part of DRE. 6. One of the serious consequences of DRE's sustained denial of the Complainant's accusation with respect to the CPA form was the foreseeable and potentially devastating effect on the Complainant, who was, for a period of time, perceived to be a liar, targeting DRE with supposedly entirely false allegations. DRE said, before us, that she did not consider the impact of her conduct upon the Complainant at the time, but now, in hindsight, understands that it had negative consequences for the Complainant. 7. The next consideration, following the Walsh approach, is whether there are any 'subjective considerations' or 'mitigating conduct' which might lead us to take a course other than the making of a recommendation to the Supreme Court that DRE's name be removed from the roll of practitioners. 8. In relation to Complaint 1, we take into account the circumstances which, we accept, generated a great deal of stress in DRE in the early months of 2016. We take into account the adverse events in DRE's personal life; her property settlement following her divorce, the diagnosis of her father with a serious debilitating illness and the on-going decline in his health, and the on-going issues arising from AJC's health condition. We also take into account the events in DRE's professional life which caused her anxiety, namely her resignation from Firm A to take up partnership in Firm B, and the consequent arrangement to transfer a portion of the practice of Firm A to Firm B. We accept DRE's evidence that the approach of the partners of Firm A to her resignation caused her to experience a high level of stress and anxiety. However, we observe that the partners' adverse response was foreseeable in the circumstances, and arose from the execution of DRE's decision about her own career. 9. In relation to Complaint 2, we take into account the difficulties encountered by DRE upon her arrival at Firm B, which are set out above at [47] to [49], and the consequent anxiety, which contributed to her decision to maintain her deception of the partners of Firm B in relation to the allegation made by the Complainant concerning the CPA form. We note that DRE's own decision to pursue her course of deception contributed to her anxiety and stress. We also take into account the continued stressors in DRE's personal life, described above. We accept that the contacting of DRE by the workmate of her future husband from late 2016, described in [64] above, caused DRE some anxiety, but doubt that it contributed significantly to her decision making in relation to the conduct in Complaint 2, which began in October 2016. 10. DRE said, in her affidavit of 22 May 2019, and we accept, that she has sought and obtained professional assistance from a counsellor to manage her stress and to analyse the reasons for the behaviour which led to these complaints with a view to preventing any repetition of that kind of behaviour. 11. We note that there is no suggestion that DRE's conduct, as set out in the particulars to the complaints in the Application, affected any client of either Firm A or Firm B. 12. DRE has received mentoring from a senior member of the profession who provided an affidavit, and we accept his evidence. We also take into account all of the favourable character evidence adduced in the respondent's case. 13. DRE also said, in her affidavit of 22 May 2019, that she has undertaken online professional development and coaching courses on identifying risk triggers in people's behaviour and understanding risk-aware workplaces. DRE said, in her affidavit, that she is confident that she will not behave again in the manner she behaved from March 2016 to May 2017, as she has taken steps to manage her reaction to stress. She asked that her conduct not be seen as representative of her character. She expressed regret, shame and remorse at her actions. Most importantly, she expressed regret at the harm she caused to her family, her ex-husband, her colleagues at Firm B, including the Complainant, and to the standing of the profession. 14. DRE has not practised since the first week of July 2018. She did not renew her practising certificate for the 2019/2020 financial year and she has not sought to obtain a practising certificate for the 2020/2021 financial year. Protective orders – Conclusion 1. The Council seeks a recommendation to the Supreme Court that DRE's name be removed from the roll of practitioners. DRE opposes that course, and suggests that, having regard to all of the circumstances, a reprimand would be appropriate, together with an order that certain conditions, including a condition requiring supervision, are to be imposed for a period of 12 months upon the practising certificate or certificates which may be held by DRE for that period. 2. This matter is finely balanced. We accept that DRE was subject to extraordinary stress, particularly in the period leading to March 2016. However, her dishonest conduct was not an inevitable result of that stress and her failure to consider the serious impact of her conduct upon others, particularly the Complainant, is concerning. On the other hand, she has expressed contrition and insight into her behaviour and its consequences. 3. On balance, we are not persuaded that, at this point in time, DRE is, by virtue of her character or for any other reason, unfit to practice as a solicitor. The character defects revealed by her conduct, leading to these complaints, seem to us to be capable of remediation, and to have been addressed to a significant degree by DRE in the years following 2017. They are not necessarily permanent or of indefinite duration and the confluence of circumstances which triggered their expression no longer exists. 4. Having regard, particularly, to the steps taken by DRE to address some of the issues to do with her character raised in this matter, and having regard to the likelihood that DRE's changed environment will not generate the kind of professional stresses to which she has demonstrated vulnerability, we do not consider that it would be appropriate to recommend that DRE be removed from the roll of practitioners. 5. We bear in mind that DRE has refrained from practice for 2 years and 5 months, to date. For the last 19 months, she has not had a practising certificate. 6. We have had regard to the range of orders available to us under s 302 of the Uniform Law. In particular, we have considered whether it would be appropriate to make an order under s 302(1)(i) of the Uniform Law directing that DRE not be granted a practising certificate for a period of time. It does not seem to us that anything further would be achieved by way of protection of the public or the condemnation of DRE's conduct by preventing DRE from practising for a further period of time. 7. In all of the circumstances, we consider that the orders proposed by the respondent are appropriate. A reprimand will signal strong condemnation of dishonest behaviour in a legal practitioner. Supervision should help DRE to manage her response to any stress experienced in any position she attains once she has acquired a practising certificate, and provide sufficient protection to the public. 8. We make the following orders: 1. The respondent is reprimanded. 2. The following conditions are to be imposed upon any practising certificate issued to the respondent after the date of these orders, and these conditions must remain for a period of 12 months from the date of issue of the first such practising certificate: 1. [DRE] is restricted to practising the law only as an employee of a law practice, corporation or government authority, or as a volunteer at a community legal service; 2. [DRE] is to be subject to the supervision of a solicitor with an unrestricted practising certificate, and such supervisor is to report to the Council of the Law Society of New South Wales at four month intervals during the currency of this practising certificate. 3. [DRE] must not supervise any other legal practitioner. 1. The respondent is to pay the applicant's costs as agreed or assessed. 2. The disclosure of the name of any person or law practice referred to in the Application for Disciplinary Findings and Orders filed on 24 February 2020, or any material fact or information that could identify those persons or law practices, is prohibited. 3. Access to and disclosure of documents and evidence filed in the Tribunal in relation to this matter is restricted to the Office of the Legal Services Commissioner, the parties and their respective legal representatives. ********** 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: 19 January 2021