The Legal Services Tribunal of New South Wales CITATION : Duncan Mark McKenzie Fine [1994] NSWLST 4 PARTIES : Duncan Mark McKenzie Fine FILE NUMBER(S) : of 1993 CORAM: Ms A Plotke (Presiding Member) - Mr P. Boesenberg - Mr N. Reidy CATCHWORDS: Professional Misconduct - conviction for offences of dishonesty - Professional Misconduct - forgery - Professional Misconduct - make false statement - Professional Misconduct - fail to act honestly :- LEGISLATION CITED: Legal Profession Act 1987 Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279; Fraser v The Council of the Law Society of New South Wales, Court of Appeal, DR 5/1992 ; The Law Society of New South Wales re Christian Andrew Wardell Hart (DT 21/9/89).; In the matter of Raymond James Luff DR 3/1993 ; CASES CITED: In the matter of Clem Alexander Parbury Court of Appeal No 452 of 1988; The Law Society of NSW v Bannister Court of Appeal DT 1/89; O'Reilly v Law Society of New South Wales the Court of Appeal reported in DR/2 1991; Johns v Law Society (1982) 2 NSW LR1; Winthrop and Smith v Minister for Immigration (1918) 2 ALD 873 at 874 DATES OF HEARING: 2 February 1994 DATE OF JUDGMENT: 05/17/1994 LEGAL REPRESENTATIVES: Mr N. Nicholls (instructed by Mr F.J. Smith) appeared for the Law Society of New South Wales. Mr S.M. Littlemore QC (instructed by Messrs Crichton-Brownes) appeared for the Solicitor. JUDGMENT: This complaint was brought by the Council of The Law Society of New South Wales (The Law Society) against Duncan Mark McKenzie Fine (the Solicitor) pursuant to Section 135 of The Legal Profession Act 1987 (the Act) following the Resolution of the Council of The Law Society of 17 June 1993. The complaint and particulars alleged that the Solicitor abused his position as a solicitor with the Office of the Director of Public Prosecutions NSW (DPP) by writing three letters on DPP letterhead to the Police Department seeking waiver of traffic and parking infringements on behalf of himself and a friend, Timothy Ferrier, on the basis of statements and representations in the letters which to the knowledge of the Solicitor were untrue. The payments which the Solicitor sought to have waived amounted to $43 and $130 for his friend and $250 relating to a speeding fine for himself. Two letters were dated 3 and 10 January 1991 respectively and the third letter was undated and received by the Police Department on 28 January 1991. A second ground of complaint was that the Solicitor forged the name and signature of a fellow solicitor employed by the DPP on the last of these letters. Grounds three, four and five related to three convictions of the Solicitor at Downing Centre Local Court on 17 February 1993 under Section 178 BB of the Crimes Act. The charges were intent to obtain for himself in the one case and for Timothy Ferrier in the two other cases, of a financial advantage being the cancellation of two traffic infringement notices and one parking infringement notice by publishing false or misleading statements. The facts in these charges are the same as those in ground one of the complaint. No Order was sought by the Law Society and no submissions were made by it regarding the appropriate order to be made. Counsel for the Law Society however referred the Tribunal to a number of cases relevant to the issues in these proceedings and these will be considered later. Agreed facts The Solicitor agreed that: 1. At the relevant time he was a solicitor employed by the DPP. 2. He was the author of the undermentioned letters written on DPP letterhead (the letters): (i) letter to the Principal Manager, Infringement Processing Bureau (NSW Police Department) signed by him dated 3 January 1991 (the first letter). This related to a parking infringement notice addressed to T. Ferrier and contained the statement:"At the time that the notice was issued, the registered owner of the motor, Mr T. Ferrier, was present at the Office of the Director of Public Prosecutions in a conference, as he is to be a Crown Witness in a forthcoming serious criminal trial." (ii) Letter to the Executive Officer, Police Department, signed by him dated 10 January 1991 (the second letter) which related to a traffic infringement notice addressed to the Solicitor and contained the following statement:"At the time, I was returning to the office of the Director of Public Prosecutions, where I am employed as a Solicitor.It was important for me to return to the office urgently to help with the preparation of the Crown case in several important criminal trials in the District Court in Sydney"; and (iii) letter to the Executive Director, Police Department, undated and purporting to have been signed by "V. Pastor" date-stamped "received 28 January, 1991" (the third letter) This related to a parking infringement notice addressed to Mr Ferrier and contained the following statement:"At the time, the driver was en route to the Local Court in Sydney to give evidence for the Crown in a criminal matter." 3.The representations concerning Mr T. Ferrier being a Crown Witness in the first and third letters were untrue. Regarding the representations in the second letter the Solicitor claimed in a letter to the Law Society of 22 May 1991 that it was true that he was returning from Newcastle to Sydney and did have to be at work the next day, his mind was preoccupied with pretrial considerations and as a result he was inattentive and went over the speed limit. He conceded that the letter was an overstatement in that it suggested an air of immediacy which did not in fact exist.4.1 In the proceedings under Section 178 BB of the Crimes Act which were heard by Magistrate Mr B. Wilson, the Solicitor pleaded not guilty but admitted all factual matters upon which the charges were based.4.2 The Solicitor was convicted on each of the three charges. He was fined $250 and required to pay Court costs of $45 in each case making an overall total of $885. 5. The Solicitor originally had the third letter typed intending it to be signed by Natalie Adams, another solicitor working in the office of the DPP. He approached her to sign it and she refused saying she couldn't possibly do that. He then tore the letter up. There was some rancour between him and Vivienne Pastor which had carried into the workplace. When Ms Adams refused to sign, the Solicitor in what he says must have been either an act of anger or spite directed at Ms Pastor, had the letter re-drafted with Ms Pastor's name on it. 6. The Conviction of the Solicitor and the details of the charges and fines were the subject of media coverage. Copies of articles which appeared in the Sydney Morning Herald on 3, 16 and 18 February 1993 and in the Daily Telegraph Mirror on 18 February 1993 were tendered (Exhibit 1). The photograph of the Solicitor appeared in the one published by the Telegraph Mirror under a caption in large heavy print: Top Law Officer Guilty. The first Herald article headed: Former Prosecutor Denies Charges described in detail the traffic infringements, the letters written by the Solicitor and his plea of not guilty. The second article headed Former DPP Solicitor Found Guilty repeated the facts which led to the charges and reported the finding of the Magistrate, Mr Bert Wilson. The third article reported particulars of the fines. The Solicitor's background The Solicitor was born in Sydney on 7 March 1962. He studied arts and law at the University of New South Wales and graduated in 1984. He then spent six months travelling overseas, attended the College of Law in the second half of 1985 and was admitted as a solicitor in December of that year. He worked for the first six months of 1986 with Walter Dixon, solicitors, and then spent twelve months as associate to Mr Justice Sir William Kearney of the Northern Territory Supreme Court. From 1987 to 1989 the Solicitor worked for two years for Blake Dawson Waldron solicitors, in the litigation department, in the defamation sub-group. He then had one year writing and directing for the theatre and at the end of that time spent a month at the Aboriginal Legal Service in Sydney and then joined the DPP in June 1990 where he worked until January 1991. Thereafter from February 1991 to January 1993 he worked for Webeck Farland Pender, solicitors and left their service to take up a Directors' course at NIDA. He did not renew his Practising Certificate when it expired on the 30 June 1993. At the time of the Hearing he was engaged in part time theatrical work. The Solicitor's Response to the Complaint On 22 May 1991 the Solicitor wrote to the Professional Conduct Department of the Law Society. In this letter he admitted the facts grounding the complaint and stated:"I find it difficult to explain my actions...I now fully realise the seriousness of my actions, and accept responsibility for them. I am also ashamed of my behaviour both as a gentleman and as a solicitor.I am prepared to further co-operate with the Society." At the Hearing before the Tribunal he gave the following evidence (at 16T):"Q. Can I come to the offences themselves, when you committed those offences, in that period of January, 1991 when you wrote those false or misleading letters and forged Ms Pastor's signature, how much thought did you give to what you were doing?A. I am afraid to say that at the time I wrote the letters I gave almost no thought to what I was doing. I certainly didn't turn my mind to the fact that I was committing a fraud upon the Police Department." He said he found it very hard to explain his actions and with the benefit of three years since they occurred he said:"It is correct to say that I have had three very harsh, and I would say scarifying years of self-examination. I think part of that process has been, I am able to say today, that I conclude that it was certainly completely immature, certainly most absurdly opportunistic, and I think, to some extent, with the letters written for Mr Ferrier, my flat mate at the time - I think it would be fair to say that there is some degree of - again I use the word absurd, but some degree of self-aggrandisement." (16T) The letters were written by the Solicitor shortly before he left the DPP on 25 January 1991. He commenced employment with Webeck Farland Pender, solicitors on 1 February 1991. The matters which led to the complaint came to the notice of the Law Society through a letter dated 4 March 1991 written by Ms V. Pastor after she became aware of the existence of the third letter by a response to it received by her from the New South Wales Police Service. She then informed the Police Service that the signature on the third letter was not hers and made the facts known to the Law Society. With respect to the "Pastor" letter the Solicitor in his letter to the Law Society of 22 May 1991 said:"...when she (Natalie Adams) told me not to use her name on it, then, in what must have been either an act of anger or spite directed at Ms Pastor, I had the letter re-drafted with Ms Pastor's name on it.I now recognise that the end of my relationship with Ms Pastor interfered with my professional judgment. I also recognise this in no way excuses my conduct in using her name." At the Hearing his evidence on this was:(42T)"I could proffer ideas about explanations but they don't satisfy me such as it was probably my last or second last day in the office. It was the end of January, it just seemed an appropriate, perhaps then school-boyish, but now I see as spiteful and petty, way of retaliating against Ms Pastor for certain matters throughout December and January, but I only wish that warning bells had sounded. That's all I can say and I know they should have, but they did not, and that's all I can say." Determination There is no question that the conduct of the Solicitor which is the basis of the grounds set out in the complaint was fraudulent and deceitful and would be regarded as disgraceful and dishonourable by solicitors of good repute and competency. It constitutes common law professional misconduct as formulated in Allinson v General Council of Medical Education and Registration (1894 1 QB 750). Indeed the Solicitor conceded this. He said at (21T):"Q. In relation to today's proceedings have you instructed your legal advisers not to contest the argument that your acts amounted to professional misconduct?"A. That is absolutely right and when I say that my acts amounted to professional misconduct I would just like to say that I mean that not only as a lawyer trying to look objectively at facts and coming to a legal conclusion. I mean it also as a person, just the idea, it ties back to the idea of shame to say that even in ordinary terms, what I did was professional misconduct." The Tribunal finds that all the matters alleged against the Solicitor in the complaint are established and that they constitute professional misconduct on his part. It then remains to consider the appropriate Order to be made by the Tribunal. Submissions Submissions were made by Counsel for the Law Society that the gravity of the Solicitor's conduct involved consideration of the undermentioned matters: 1. The Solicitor held a position with the DPP for some 7 months during which it was his responsibility and duty to assist the Crown in prosecuting cases in the District Court. He was familiar with the principles procedures and practices relevant to the practice of criminal law. When asked in chief and in cross examination whether in January, 1991 when he authored the letters he understood that what he did was fraudulent, he responded that he gave little or no thought to what he was doing and certainly didn't turn his mind to the fact that he was committing a fraud on the Police Department. He maintained this response throughout the proceedings. 2. Secondly, Counsel for the Law Society adverted to the fact that no circumstances are put forward on behalf of the Solicitor mitigating the effect and nature of the conduct complained of. All that is said is that it was completely immature, absurdly opportunistic and the result of self-aggrandisement. 3. The third submission was that great significance must be attached to the warning of Natalie Adams concerning the Solicitor's intention in writing the third letter and her refusal of his request that she send the letter to the effect "I wouldn't do that for my own mother, let alone for a friend of yours". He was aware from this that Natalie Adams viewed his conduct seriously and that it was something which the Solicitor then, himself, should have viewed very seriously. Regarding the first submission, evidence was given by the Solicitor in response to questions directed to him in cross examination that when he wrote the letters to the Traffic Infringement Bureau he believed that the Bureau would be influenced by the fact that a request was being made by "the solicitor for Public Prosecutions" (sic). He also agreed that he believed the Bureau would be influenced in considering a waiver of a fine where it was shown that the fine was imposed on a Crown witness whilst assisting the Crown prosecuting a case. When asked why he wrote the letter for Mr Ferrier he stated, as he did on a number of occasions during his evidence, that looking back on it now he could only explain his action "in terms of just an appalling lack of judgment, and immaturity...and may be to some degree some idea of self-aggrandisement that I could just do this to help him out because I could use my position that way." (31T) He was cross-examined about knowing in January 1991 that he was perpetrating a fraud and he consistently denied any awareness of doing a fraudulent act at the time. The following evidence appears at 35T:Mr Nicholls: "You knew at the time that what you were doing was perpetrating a fraud?No, I repeat that at the time I didn't acknowledge that what I was doing was perpetrating a fraud on the Police Department, and it is simply because now looking back on the event, after three years, it is very clear in my mind that of course it was, of course it was dishonourable and disgraceful, and I now have to recognise, and I am being forced to recognise that it was just a result of immaturity and an absurd, stupid opportunism. Certainly at the time, I mean, if I thought about it, if I thought that we would be here today, I mean I just could not have possibly written it.The question I put to you, Mr Fine, was at the time in January 1991, you knew that what you were doing was perpetrating a fraud?At the time I wrote the letter in January 1991, it just didn't occur to me that I was doing something so grossly stupid and so immature as I now realise, that I would sign my name and send to the Police Department a letter that contained quite a blatant, stupid, obvious lie.As a solicitor with the DPP in January 1991 and with the knowledge you had at that time, bearing in mind your position, you knew that what you did in January 1991 was perpetrating a fraud?I did say that I just, at the time, I did not turn my mind to what I was doing. Certainly, from what has happened, from the moment I saw the letter of complaint from the Law Society in April 1991 and until the day I die, I will know and have to live with the fact that what I did was commit a fraud upon the Police Department. At the time I wrote and signed those letters, whether just out of immaturity or I have come to the conclusion that it is just out of an immature grasping of an opportunity, I did not realise that that is what I was doing." The Solicitor repeatedly said that he could not explain his conduct of January 1991. The Solicitor was frank and candid in giving his evidence before the Tribunal and readily admitted the facts on which the complaint was based. From the time when he first became aware of the complaint through the letter from the Law Society dated 18 April 1991 written to Messrs Webeck Farland Pender his response was to make full and frank admission of all facts and this was reflected also in his response to the charges under Section 178BB of the Crimes Act. Mr B. Wilson, the Magistrate who presided at the hearing of these charges stated (at page 44 of the complaint) that the plea was conducted on some very fine points of law and the defendant had admitted to writing the letters at a very early stage in the cases. He agreed that the Solicitor should not be deprived of the benefits that a plea of guilty should bring because of the plea of not guilty entered in the cases. Having heard the evidence of the Solicitor the Tribunal believes that at the time when he wrote the letters he was not aware that he was committing a fraudulent act. That being so the fact that the Solicitor believed that the Traffic Infringement Bureau would be influenced by his position with the DPP and by the status of the traffic offender as a Crown witness is not in itself inconsistent with the Solicitor's accepted evidence which negatives a fraudulent intent. As regards the second submission for the Law Society the Tribunal finds that the evidence supports the submission. As regards the third submission the Tribunal agrees that the warning of Natalie Adams should have alerted the Solicitor to the true nature of what he was doing and the seriousness of his action. It is difficult to see how he failed to realise at the time the significance of his conduct. He said in his evidence before the Tribunal at 42T:Mr Nicholls: "Mr Fine do you recall the precise words used by Natalie Adams when she refused your request that the letter be issued in her name?A. The precise words, no.Q. As best as you can currently recall?A. Something like, "I wouldn't do that for my own mother let alone for a friend of yours", or something.Q. When she said those words to you did it occur to you that she viewed that conduct very seriously?A. Certainly, but as I say you would think alarm bells rang, I mean, but they did not...Q. Did that not cause you to reflect on your own conduct at the time?A. No it didn't and I find it very hard to explain today and I can only put it down to, you know, something which I might almost find, I might expect from a school boy who didn't know very much more, who was set upon a foolish and immature course of action which is in a sense how I now regard who I was three years ago, to some extent." It is difficult to understand how a solicitor aged 28 having been in practice for some six years and having just spent six months working in the office off the Director of Public Prosecutions assisting the Crown in criminal matters could fail to recognise that what he was doing at the time was deceitful and fraudulent. However, the Tribunal has found the Solicitor to be a truthful witness and has accepted his evidence on the matter. Regarding the third letter the Tribunal was invited by Counsel for the Law Society to pay close attention to the Solicitor's response to the question why he forged the signature of Vivienne Pastor on that letter. Initially he stated (44T) that he was just simply "on a course of immature, stupid, absurdly opportunistic conduct, and the ideas as to what I was doing just did not occur to me..." When pressed on the issue and when it was specifically put to him that he put somebody else's name on the letter to avoid the risk of detection he responded: (44T)"I think that's probably right, yes". Counsel's submission was that this response must be balanced against the Solicitor's evidence throughout the hearing that at the time he gave no thought to what he was doing. The Solicitor's evidence in that regard should be disbelieved in the light of his admission that in writing the third letter he used the name of another person to avoid the risk of detection (50T). The only reason for avoiding detection was because he knew at the time, in January 1991, that what he was doing was wrong. The Solicitor's counsel responded to this submission by saying that the Solicitor did not recognise that he was perpetrating a fraud, he knew what he was doing and didn't want to be detected doing it but he did not acknowledge to himself the gravity of what he did (67T). Having carefully considered these submissions and the evidence the Tribunal has come to the conclusion that the admission by the Solicitor that he did not wish to be detected is not necessarily inconsistent with his evidence which the Tribunal accepts that he did not turn his mind to the seriousness of his action or that he was perpetrating a fraud. Character references Twenty-five character references were tendered in support of the Solicitor, all but two in the form of Statutory Declarations. The referees were for the most part solicitors and barristers who had known the Solicitor between 8 and 20 years. These had variously been fellow law students at the University of New South Wales or fellow committee members of the Old Sydneians Cricket Club on which the Solicitor served as Treasurer and Secretary, or solicitors with whom he had been in professional contact either as fellow employee, colleague, as a Judges' Associate or Director of the Inner City Legal Centre Pty Limited where the Solicitor has worked on a voluntary basis. Some solicitors and barristers had had professional dealings with the Solicitor. References were also supplied by Mr Hugh Keller senior partner at Blake Dawson Waldron, where the Solicitor worked between August 1987 and September 1989 and Mr Mark James Webeck of Webeck Farland Pender, where the Solicitor worked from February 1991 until January 1993. Mr Justice Finlay of the Supreme Court of New South Wales provided a Declaration stating that ordinarily he does not provide character references as he considers in general it is inappropriate for a judicial officer to do so but he was making an exception in the case of Duncan Fine as his contact with him had been quite close. He had known him since he was a young school boy. Other referees were professional people who had known the Solicitor and his family for many years and the head of Directing and Play-wrighting at NIDA, at the time when the Solicitor won a place in NIDA's Playwrights Studio, for which he was responsible. All referees were aware of the subject matter of the complaint and held the Solicitor in high regard. Common features of the references were that the Solicitor was honest, a person of integrity and high moral behaviour, that he had expressed to the referees his shame, contrition and remorse, that the behaviour complained of was out of character or an aberration and that there was no likelihood of it happening again. It is fair to say that the candid and forthright manner in which the Solicitor gave his evidence before the Tribunal and his oft-repeated contrition regarding the letters was consistent with the remarks made about him by his referees. The cases Counsel for The Law Society referred the Tribunal to a number of cases which he described as providing a fairly comparative range of conduct dealt with by the Tribunal and by the Court of Appeal while he recognised that the Tribunal must come to its decision based on the particular circumstances of this Solicitor at the relevant time. The legal authority adduced may be summarised as follows: 1. On the question of the conviction the Tribunal was referred to an extract from Riley's New South Wales Solicitors Manual at page 1735 paragraph 4221 which refers to the definition of professional misconduct in Section 123 of the Act. This includes:"(b) Conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character, or is not a fit and proper person, to remain on the Roll of Barristers or the Roll of Solicitors". The Tribunal has already made a finding of professional misconduct in the present matter. 2. Ziems v Prothonotary of Supreme Court of New South Wales (1957) 97 CLR 279. In that case Ziems, a barrister, appealed against an Order of the Supreme Court of New South Wales removing his name from the Roll of Barristers following his conviction and sentence to a term of imprisonment on a charge of manslaughter. Fullagar J said in relation to the conviction:"The conviction (he said) is not irrelevant; it is admissible prima facie evidence bearing on the ultimate issue, and may be regarded as carrying a degree of disgrace itself. But, in the first place, its weight may be seriously affected by circumstances attending it, and it must be permissible to look at the conduct of the trial. And, in the second place it is on what the man did that the case must ultimately be decided, and we are bound to ascertain, so far as we can on the material available, the real facts of the case. It is only when we have done this that we can be in a position to characterise the conduct in question, and to see whether we are really justified in saying that a man is disqualified from practising his profession." The substance of the appeal to the High Court against the striking off was that all of the circumstances of the case should be investigated and "that in any case it could not be said to be established beyond doubt that the appellant's conduct was so disgraceful as to justify his being disbarred". Fullagar J and the other majority Justices accepted that they were entitled to "look behind" the conviction and examine all the circumstances. In the present case the conviction arose out of the same circumstances as those alleged in the complaint and the consideration by the Tribunal of the allegations specified in the complaint of necessity involves consideration of the circumstances which led to the conviction. 3. Fraser v The Council of the Law Society of New South Wales, Court of Appeal, DR 5/1992 page 12. In this case Fraser, a solicitor admitted in 1982, was in 1990 asked to provide a certificate of explanation required in conjunction with the execution of a mortgage. The purpose of the Certificate was to provide independent advice to the Livingstones, the mortgagors. The certificate was needed urgently and the solicitor was informed that the mortgagors had already been given an explanation about the mortgage by a non-practising barrister. In the event his explanation to the mortgagors was inadequate. The mortgagors were hard to contact. The solicitor agreed to sign the certificate of explanation to the effect that he had explained the mortgage documents and memorandum to the Livingstones. The certificate was false. The solicitor had never spoken to the Livingstones in person or by telephone and signed the certificate although he had not himself fully informed them of their rights and obligations under the mortgage. The Disciplinary Tribunal in that case had ordered that the name of the Solicitor be removed from the roll of solicitors. The Court of Appeal set aside that order and ordered the Solicitor to pay a fine of $7,000. Counsel for the Law Society referred the Tribunal to the judgment of Handley J at page 17 quoting the High Court in Southern Law Society v Westbrook (1910) 10CLR 609 at 612 where Griffith CJ quoted with approval the test as formulated by Lopes LJ in Re Ware (1893) 2QB 439 at 448:"...the question which the court...ought always to put to itself is this, is the court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor." That question, it was submitted, arises in the present case by reason of the nature of the convictions themselves as they involve an element of dishonesty, that is, the publication of false statements for the purpose of seeking a financial advantage. 4. The Law Society of New South Wales re Christian Andrew Wardell Hart (DT 21/9/89). This matter related to a solicitor who was convicted of an offence arising from making a Statutory Declaration which he knew to be false and misleading in a material particular with intent to obtain for himself a financial advantage. The offence was an indictable one which was dealt with summarily after the solicitor had consented to that course. The Statutory Declaration was to the effect that the solicitor had not authorised 46 transactions debited to his bankcard account totalling $736. He freely conceded that at the time he signed the Statutory Declaration he knew it to be false and he claimed in exculpation that he was at the time heavily intoxicated with heroin. The Tribunal in that case said (at page 50):"The conviction for dishonesty is prima facie evidence bearing on the ultimate issue of the Solicitor's fitness and bears a degree of disgrace in itself. It is essential to examine the circumstances attending that conviction and giving rise to the dishonest behaviour out of which that conviction arose." The solicitor in that case readily admitted his wrongdoing and was frank in his response to enquiries directed to him by members of the Tribunal. There was a finding of professional misconduct. The evidence appeared to point to the solicitor's drug addiction as being the principal cause of his dereliction. In these circumstances the Tribunal ordered a suspension of approximately 21 months from the date of the Hearing. 5. In the matter of Raymond James Luff DR 3/1993 page 1. The solicitor acted for a client in relation to an application for a possessory title under the Real Property Act. In connection with this application he forged a Statutory Declaration and then purported to witness such signature. He lodged this document in support of the application and in due course a Certificate of Title issued in the name of the client. The circumstances leading to the solicitor's conduct were that in June 1990 the client had signed documents in support of the application. By December 1990 the solicitor was under some pressure from the client to complete the application. The solicitor gave evidence of being under stress at that time and of his practice being very busy shortly before Christmas 1990. Mr Colin Perrot paid rates and maintained fences in lieu of paying rent to the client. The solicitor was conscious of the great distress in Mr Colin Perrot's family following the murder of Mr Perrot's daughter earlier in the year. At this time the solicitor completed the Statutory Declaration of Mr Perrot by signing Mr Perrot's name and then by witnessing that signature on the Declaration. The solicitor then forwarded this forged Statutory Declaration for lodgement with the application for possessory title. The Tribunal found that the conduct of the solicitor amounted to professional misconduct and ordered a fine of $6,000. 6. In the matter of Clem Alexander Parbury Court of Appeal No 452 of 1988. In this case the solicitor was approached by his close friend, a real estate agent named Ryan and asked whether certain land which the solicitor, Ryan and their respective wives contemplated purchasing could be acquired without Ryan disclosing to the vendor, who was his client, that he was one of the purchasers. The solicitor suggested a company or a trustee as the purchaser. Ryan did not wish to utilise either of these. He told the solicitor he would arrange matters himself. Subsequently Ryan signed the contract in the name of Gallagher and the Solicitor signed as witness to Gallagher's signature. On page 4 of the Judgment Clarke J A said the following:"There was a dispute between Ryan and the appellant as to whether the signature `Gallagher' had been placed on the document in the presence of the appellant and it will be necessary to return to this issue later. It is sufficient to point out at this stage that either the appellant falsely asserted that he had been a witness to the affixing of the signature of Gallagher or alternatively saw Ryan signing the false name. On the same day the appellant signed a certificate under S.1C(5)(c) of the Land Sales Act 1964 certifying that he had explained the effect of the contract to the purchaser. The certificate was clearly untrue. He had not explained anything to the purchaser named in the certificate although he said at that stage he believed Gallagher to be a real person." There was evidence before the Court that the solicitor and Ryan secured the purchase of the land at an undervalue. The solicitor denied that he knew at the relevant time that he was acquiring an interest in the land for less than its real value. Clarke JA said at page 5:"This evidence raised an important issue for there is a significant difference between participation in a scheme to deceive a vendor in order to secure a financial benefit for oneself and assisting in the deception in the belief that the vendor is not being deprived of his true entitlement." The Solicitors' Statutory Committee found that the solicitor was guilty of professional misconduct, suspended him for a period of 12 months and fined him $10,000 and ordered him to pay costs. The solicitor's appeal against this Order was dismissed. On page 17 Clarke JA had the following to say:"It follows from what I have said that it was the appellant's active participation in the scheme to deceive Ryan's client in order to facilitate Ryan's and, more latterly, their joint purchase of the client's land which established his admitted professional misconduct. Such misconduct, in my opinion, necessitated the making of an order which went beyond a mere fine. In a case of this nature, even allowing for the unlikelihood of a repetition of the misconduct by the appellant, the protection of the public is not adequately secured by a fine. The misconduct involved was so serious, and the need to emphasise its seriousness so important, that in the absence of particular mitigating circumstances it may well have called for an order removing his name from the roll." 7. The Law Society of NSW v Bannister Court of Appeal DT 1/89. The solicitor in this matter acted on a redemption application to the Compensation Court. An award of $43,000 was made to the client. The solicitor asked for and obtained from the client costs of $3,000 in breach of Section 56 of the Workers Compensation Act under which a solicitor for a claimant is not entitled to recover from him any costs nor deduct such costs from the sum awarded as compensation except as awarded by the Court. The solicitor received a cheque from the employer in favour of the client for $43,000. He had the client endorse the cheque to make it payable to his firm, paid it into the firm's trust account, and then had the client sign authorisations for drawing of two cheques on the trust account both in favour of the client, one for $40,000 and the other for $3,000. The solicitor accompanied the client to the firm's bank where the $3,000 cheque was cashed and the proceeds handed to the solicitor. He then caused false entries to be made in the trust account records so that there was no entry recording the receipt or retention of $3,000 by him. The day before the visit to the bank the solicitor had written to the employer's solicitors assessing the firms costs at $500 which was later, after negotiation, reduced to $350. This together with disbursements was in due course paid to the solicitor's firm. The receipt of the payment for costs was not revealed to the client. The Court of Appeal ordered that the name of the solicitor be removed from the Roll of Solicitors. Counsel for The Law Society made specific reference to the protective and deterrent function of the Tribunal as expressed by Scheller JA on page 12:"When the jurisdiction of the Tribunal is invoked under Part 10 Division 7 of the Act to conduct a hearing into a complaint of professional misconduct by a legal practitioner, the primary consideration is to protect the public by preventing a person unfit to practise from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. But the Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner. In the case of a solicitor these elements together or separately may call for the removal of the solicitor's name from the roll or the imposition of a substantial fine." Counsel for the Law Society also referred to the finding by His Honour relating to two letters written to the Law Society by the solicitors of the solicitor in November 1988 and March 1989, before the complaint was amended to the form it took at the Hearing before the Tribunal. The letters contained submissions that the conduct complained of may have been unsatisfactory and unacceptable but not disgraceful or dishonourable. At page 15 His Honour found that the solicitor made no confession of his misconduct to the Law Society prior to its coming to light or promptly thereafter and said: "Whatever may have been the instructions given or the reasons for the letters written by his solicitors on 11 November 1988 and 29 March 1989 their terms are no indication that the solicitor was prepared to acknowledge the seriousness of what he had done." In the present case submissions were made to the Law Society on behalf of the Solicitor by Mr Henry di Suvero of Counsel dated 13 September 1991 (exhibit "F"). On 25 July 1991 the Professional Conduct Committee of the Society resolved that it should recommend to Council that, subject to any submissions by the Solicitor, the matter be referred to the Tribunal (page 6 Complaint). The submissions refer by way of background to three questions of professional misconduct arising in the matter, the misleading letters the misuse of stationery of the Solicitor for Public Prosecutions and the forgery of a signature of a fellow employee of the office of the DPP. At this time the Solicitor had already admitted authorship of the letters and the submissions confirmed this. However, on 29 August 1991 the Solicitor had been served with three summonses under Section 178BA of the Crimes Act. It is entirely understandable that in these circumstances he took legal advice and that his counsel put forward whatever technical or substantive defences he considered appropriate. The following evidence was given on page 36:Mr Nicholls: "Could I take you to paragraph 12.1 of the submissions before you, prepared on your behalf by Mr di Suvero?A. Yes.Q. I said paragraph 12.1, I should have said paragraph 12, do you understand that the paragraphs under that heading, down to 12.1.4 deal with the forging of Miss Vivienne Pastor's signature?A. Yes.Q. And there was no full and frank admission of fraud in those paragraphs of the submission, was there? Can I just read them?A. Yes?Thank you, yes, I had taken legal advice that that wasn't the case. It wasn't, through an anomaly, I suppose, I mean it wasn't a crime of forgery because it didn't create a forged document, but I think that was just legal advice that I had taken. I certainly didn't run away from the fact that I had written the girl's name when she knew nothing about it. In fact, I wasn't charged with forgery by the police." Mr Nicholls suggested that His Honour Justice Sheller frowned upon the sort of response made by the solicitors for Bannister and that this was relevant to the submissions made in the present case based on legal technical grounds. He conceded that in the recent decision relating to Malfanti the Court had recognised that it is open to a solicitor to argue for legal reasons that the factual matters giving rise to the conduct complained of do not constitute professional misconduct and that no negative inference should be drawn from that position. In O'Reilly v Law Society of New South Wales the Court of Appeal reported in DR/2 1991 Kirby P said at page 13:"Of course, in dealing with the Committee he was facing serious charges. There was the prospect of grave disciplinary action. In such circumstances, the adoption of a defensive posture may be, to some extent, understandable. So might the presentation of evidence in a way thought to be most favourable to him." The Tribunal does not take the view that the submissions made on behalf of the Solicitor by Mr di Suvero are indicative of any lack of appreciation on the Solicitor's part of the gravity of his conduct. Indeed in his evidence before the Tribunal he repeatedly acknowledged the seriousness of his actions albeit that at the time when he undertook them he did not turn his mind to their true character and did not then appreciate their impact. Submissions for the Solicitor The submissions made by Mr Littlemore <MS>QC<D> for the Solicitor may be summarised as follows: 1. The Solicitor admits the complaint and that the conduct complained of amounts to professional misconduct. 2. The duty of the Tribunal is not further to punish the Solicitor for his breaches of the Criminal Law but to act to protect the public interest. 3. Of the Orders which the Tribunal may make pursuant to Section 163(1) cancellation of the Practising Certificate is inappropriate as the Solicitor did not renew his Certificate in 1993 and a fine is also inappropriate in all the circumstances because the Solicitor has been fined in the Local Court. The deterrent use of a fine, which is really what Mr Justice Sheller was talking about in Bannister's case would be otiose in all those circumstances. 4. This leaves the Tribunal to choose in the exercise of its discretion between an order causing the Solicitor's name to be removed from the Roll which is not called for in all circumstances and an order denying him a Practising Certificate for a specific period and in his submission was the appropriate order. 5. The Tribunal is really dealing with a single course of conduct given that it occurred in the month of January 1991. 6. The amount of money involved was $423 and the Solicitor did not contest any of the allegations of fact made against him in the Criminal Court. 7. The Solicitor was aged 28 years at the time and had been admitted for about 6 years and had had relatively little experience in that time. He had a year as an associate, a year away from the law and had been only six months at the DPP when he committed the offences. 8. The instructing solicitor for the DPP occupies a far more clerical than legal role. He is as it were the legal go-between serving as liaison between police officers and the Crown Prosecutor. 9. The Solicitor's prior record both as a citizen and a solicitor had been unblemished. He had as an expression of atonement a record of service to the profession as a speaker in Law Week, through voluntary work at the Inner City Legal Centre and through training the boys at the Marist School at Maroubra for their mock trials. 10. He has not attempted to conceal or minimise his actions. Mr B. Wilson, the Magistrate who heard the charges under Section 178BB of the Crimes Act 1900 found that he should not be deprived of the benefits that a plea of guilty should bring because of the plea of not guilty entered in the cases, the plea having been conducted on some very fine points of law and the Solicitor having admitted to writing the letters at a very early stage in the cases. 11. In addition to the penalties imposed by the Magistrate the Solicitor has suffered the ignominy of the adverse publicity in the print media published in two high circulation Sydney newspapers. 12. The Solicitor responded to the Law Society acknowledging his authorship of the letters and the falsity and misleading nature of them and making full disclosure of his actions including the forgery. He now realised the seriousness of his actions and accepted responsibility for them. He stated his shame and has co-operated fully with the Law Society at all stages. He disclosed the offences to his then employer, Webeck Farland Pender, solicitors and offered to resign, an offer which was not accepted. In the three years since the offences were committed, including two years with Webeck Farland Pender, his conduct has been without fault. He suspended his work as a lawyer to study in the theatre. 13. Mr Littlemore made reference to the following principles guiding the exercise of the Tribunal's discretion: (a) to protect the public, uphold the standards of the legal profession and disapprobation of the fraudulent conduct - referring to Kirby P in Fraser's case; (b) a fraudulent act by a solicitor does not per se require disqualification - citing Kirby P in Fraser's case (p.17);"I do not believe that fraud, as such...requires in every case, without more, the removal of the name of the solicitor from the roll. It is necessary to examine in each case the nature of the fraud involved. Many acts of fraud will indeed require removal from the roll. In other cases, a less drastic determination will be appropriate." (c) The issue of fitness to practice involves subjective awareness of the significance of his misconduct - citing Handley JA in Fraser's case:"(Proof) of the appellant's fitness to be restored to the roll depends very much on the Court being satisfied that he fully understands his past error." - adopted by the Tribunal in Konstantinidis LPDR 1/93. (d) It involves, where there has been substantial effluxion of time between the misconduct and the discretionary exercise, consideration whether unfitness has been changed to fitness (referring to Moffit P in Johns v Law Society (1982) 2 NSW LR1, contrition (referring to Konstantinidis) character evidence (referring to Luff LPDR 3/93). In Luff's case the character evidence, as in the present case, suggested only that the misconduct was "an isolated event" out of character. (e) It is an error to treat the concept of the "public interest" as a factor to be weighed solely against the solicitor. He referred to Winthrop and Smith v Minister for Immigration (1918) 2 ALD 873 at 874:"I do not take the public interest to be contrasted with the interests of the individual persons who make up the community...nor do I take the term "public interest" to exclude the consideration of humanitarian or compassionate grounds, for it is in the public interest that those grounds be considered when the interests of individuals are affected by a decision". 14. To apply the foregoing and other principles to the facts in the present case is to see that authorities and the evidence require the Tribunal to specify a period of exclusion of the Solicitor from practice but not his removal from the roll. Mr Littlemore then itemised elements from the evidence demonstrating: 1. The Solicitor's present awareness of his past error. 2. The short period of the misconduct so that it is properly to be treated as a single course of conduct. 3. The evidence and circumstances militating against any inference that the Solicitor may ever again misconduct himself. 4. That the misconduct was grossly uncharacteristic and can fairly be described as immature opportunism. 5. A very significant and substantial cross-section of the legal profession has been willing to support the Solicitor. 6. Such unfitness as the Solicitor demonstrated was three years ago. His conduct since then both as an employed Solicitor and as a student in an unrelated field speaks of self-rehabilitation arising from self-awareness and fitness. Order The conduct of the Solicitor was deceitful and fraudulent. In accordance with the dictum of Kirby P in Fraser's case which has been cited above a finding of fraud does not require in every case that the name of the solicitor be removed from the roll. An examination of the circumstances in this case on the evidence as accepted by the Tribunal leads to the following findings: 1. That at the time when the offending letters were written by the Solicitor he did not consciously perpetrate an act of fraud. There is no evidence that his actions were premeditated. In so far as they were dishonest he did not so recognise them at the time. 2. As soon as the Solicitor's attention was directed to the matter by the Law Society he made a full and frank admission of all relevant facts. From then on he realised the seriousness of his actions and accepted responsibility for them. 3. He has been frank and candid in his evidence before the Tribunal and has repeatedly voiced his shame and contrition at his actions. 4. The acts occurred over a period of approximately three weeks in January 1991 and the Solicitor's conduct both before and after this time has been without fault. 5. His peers in the legal profession including two former employers speak highly of him as a person of integrity and confidently expressed the views that there is no likelihood of any repetition of such conduct. Similar statements are made by other referees who stress that the conduct is completely out of character and an aberration. 6. The Law Society expressly refrains from seeking any order. The Tribunal considers the Solicitor's misconduct to be serious but having regard to the above findings the Tribunal is of the view this is not a matter where the name of the Solicitor should be removed from the roll. The Tribunal accepts the submissions of Mr Littlemore that a fine is not appropriate because the Solicitor has already been fined under Section 178BB of the Crimes Act. The Tribunal has come to the conclusion that the order which it should make in this case to give effect to its disapprobation of the fraudulent conduct of the Solicitor is to order that a Practising Certificate not be issued to him for a period. The Solicitor refrained from renewing his Practising Certificate and has not held one since 30 June 1993. He ceased practising in January 1993 when he left his position with Webeck Farland Pender and started the directors' course with NIDA. The period of suspension should reflect the disapproval of the Tribunal of his conduct and also have a deterrent effect. In all the circumstances the Tribunal considers that there should be a period of suspension until 1 July 1995 which is a period of 20 months from the hearing. The Tribunal therefore orders: 1. That a Practising Certificate not be issued to the Solicitor until 1 July 1995. 2. That the Solicitor be ordered to pay the costs of the Law Society in these proceedings such costs to be assessed on a solicitor and client basis as if taxed in the Supreme Court. 3. If agreement cannot be reached between the parties regarding the amount of such costs, either party shall have liberty to apply. 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.