The Legal Services Tribunal of New South Wales CITATION : Carol Anne Foreman [1993] NSWLST 15 PARTIES : CAROL ANNE FOREMAN FILE NUMBER(S) : of 1993 CORAM: Mr F Herron (Presiding Member) - Mrs B Ingold - Mr J.W. Brennan CATCHWORDS: Professional Misconduct - conviction for offences of dishonesty - Professional Misconduct - gross overcharging of client - Professional Misconduct - make false statement - Professional Misconduct - fail to act honestly - Professional Misconduct - prepare false documents :- Various allegations of alleged professional misconduct. Fabrication of document for presentation to Court receives critical comment - Solicitor's obligations to Courts. Misleading Family Court of Australia. Need for Solicitor before Tribunal to give evidence with complete honesty and candour. LEGISLATION CITED: Legal Practitioners' Act 1898 Legal Profession Act 1987 Re: Hodgekiss 1962 SR 340 ; Allinson v The General Council of Medical Education and Registration (1894) 1 QB 750 ; Malfanti v Legal Profession Disciplinary Tribunal (Unreported) Court of Appeal 23 August 1993 ; In the matter of Veghelyi (1991) 7 LPDR ; CASES CITED: Ziems v the Prothonotary (1957) 97 CLR 279 ; Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 680; Ex parte Macaulay (1930) 30 SR (NSW) 193 ; Kotowicz v The Law Society of New South Wales (Court of Appeal, unreported, 7 August 1987; Fraser v Law Society of New South Wales (1992) 5 LPDR 12 DATES OF HEARING: 2, 3, 4, 5, 6, 10, 11, 12, 13, 26, 27 AUGUST 1993, 6 and 7 SEPTEMBER 1993. DATE OF JUDGMENT: 10/19/1993 COUNSEL:FOR COMPLAINANT: MR P.M. DONOHOE, QC with MS P. BERGIN;FOR RESPONDENT: MR R. STITT, QC with MR G. LINDSAY. LEGAL REPRESENTATIVES: SOLICITORS:FOR COMPLAINANT: MR F. SMITH; FOR RESPONDENT: MESSRS CURWOOD & PARTNERS. JUDGMENT: In this matter the Council of the Law Society of New South Wales (the Complainant) made a complaint to the Tribunal pursuant to Section 135 of the Legal Profession Act 1987 against Carol Anne Foreman (the Solicitor). The Complainant sought the following orders:1. That the name of the Solicitor be removed from the Roll of solicitors.2. That the Solicitor pay the costs of and incidental to the proceedings.3. Further or other orders. Background The Solicitor received instructions on 7 September 1989 to advise Mrs Ariane Avidan (subsequently Weiss) (the Client) in relation to the various matters associated with the deterioration of the Client's then marriage. Subsequently, in December 1989 the Solicitor received instructions to institute proceedings under the Family Law Act (the main proceedings). The main proceedings were resolved by consent on or about 13 July 1990. In February 1991 the Client instituted proceedings (the costs proceedings) in the Family Court against the Solicitor's firm, Messrs Clayton Utz (the firm) seeking leave to dispute out of time accounts for professional charges rendered to the Client in the main proceedings. The costs proceedings were resolved by consent in favour of the client by Messrs Clayton Utz independently of the Solicitor on Thursday 24 October 1991. The five grounds of the complaint filed by the Complainant in the Tribunal on 6 August 1992 all arose out of or were related to the Solicitor's conduct of the main proceedings and/or the costs proceedings. The Solicitor The Solicitor was born on 3 August 1941 and is now aged 52. She was admitted to practice on 6 March 1964 having served Articles of Clerkship with Messrs Glasson & Thomas. Following her admission to practice the Solicitor worked as an employed solicitor initially with Mr F.J. Kavanagh and subsequently with Messrs Hall & Hall where she subsequently became a partner. Hall & Hall subsequently merged with Sly and Russell where she remained a partner until 1986 when she was, as she described it in her evidence "specifically poached by Clayton Utz on the basis that they wished to build up the best Family Law practice in Australia". The solicitor resigned as a partner of Clayton Utz on 28 October 1991 and subsequently commenced practice as the principal of the firm Carol Foreman & Associates. The Solicitor gave evidence that she has specialised in the Family Law jurisdiction since about 1976. She has two children of a former marriage one of whom lives with her and is dependent upon her while her other child does not live with her but is partially dependent upon her. The Solicitor gave evidence of her belief that she was the best practitioner in the Family Law jurisdiction "doing the best quality work for the highest profile clients". She always believed that she was "the most eminent family law practitioner". (T428). The Solicitor annexed to her Statutory Declaration an impressive list of articles and papers which the Tribunal accepted as evidence not only of the expertise of the Solicitor but of her contribution over a period of years to continuing legal education. In the course of the hearing a substantial number of Statutory Declarations were admitted into evidence as to the character of the Solicitor. It is appropriate at this stage to indicate that those references provided evidence from a large number and range of members of the legal profession and from some of her clients and members of the accounting profession of the outstanding reputation of the Solicitor. The original complaints The complaints filed on 6 August 1992 were particularised as follows: Ground 1 - misleading the Family Court of Australia A. Subpoena and Notice to Produce 1. In the costs proceedings the firm was served with a Subpoena for Production and a Notice to Produce requiring it to produce, inter alia:"All time records, diary entries, computer print outs,and other records maintained and used, inter alia, for the purpose of controlling, maintaining and producing client costings in respect of the applicant between 1 September 1989 to date." 2. The Solicitor undertook the collation of the documents in answer to the Subpoena and Notice to Produce on behalf of the firm. During the course of this task, the Solicitor was given the original time sheet completed by her for 7 September 1989 and bearing the inscription on both sides "POSTED GM 15 SEP 1989" (the original time sheet). 3. When the Subpoena and/or Notice to Produce was called upon in the Family Court of Australia, the Solicitor failed to produce the original time sheet to the Court but produced another document which differed in a material respect from the original time sheet in that it contained the following words in the Solicitor's handwriting "... Gave her costs agreement - & prop inf sheet." 4. The Solicitor thereby misled the Family Court of Australia. B. Affidavit of Documents sworn 19 August 1991 1. The Solicitor in the costs proceedings, swore on 19 August 1991 an Affidavit of Documents which was filed on 22 August 1991. 2. The Solicitor included in that Affidavit as Item 1 in Schedule 1, part 1 a description of a document entitled "Copy Costs Agreement, addressed to Wife, dated 7 September 1989." 3. The Solicitor thereby swore a false Affidavit and misled the Family Court of Australia because the document was not to her knowledge a copy of a Costs Agreement dated 7 September 1989. Ground 2 - abusing the process of the Family Court 1. The Solicitor deposed to, and filed or caused to be filed, an Affidavit of the 22 August 1991 in the costs proceedings. 2. The Affidavit was entitled "Affidavit of Carol Anne Foreman in Reply to the Affidavit of the Wife sworn 13 March 1991." 3. Paragraph 5 including paragraphs 5.1 to 5.85 being from pages 12 to 46 inclusive of the Affidavit was wholly irrelevant to the issues in the costs proceedings. 4. The Solicitor included in the Affidavit the irrelevant paragraphs 5.1 to 5.85 and then filed the document for the purpose of dissuading the Applicant from continuing with her costs application against the firm. 5. The Solicitor's conduct constituted an abuse of the process of the Court. Ground 3 - propounding false documents A. The Time Sheet dated 7 September 1989 1. The Solicitor was the author of a time sheet for 7 September 1989 which was to her knowledge false (the reconstructed time sheet). 2. The reconstructed time sheet was false in that it included the words, at the top of the obverse page thereof, "gave her costs agreement - & prop inf sheet". 3. The Solicitor produced to the Family Court of Australia the reconstructed time sheet and failed to produce the original time sheet. 4. The Solicitor, knowing that only the reconstructed time sheet had been tendered to the Family Court in the costs proceedings, concealed the existence of the original time sheet from the Court, and the Applicant, Miss Weiss, and her legal representatives thereby propounding as the original document, the reconstructed time sheet. B. The purported copy of a Costs Agreement dated 7 September 1989 1. The Solicitor produced or caused to be produced a document on the letterhead of the firm apparently dated 7 September 1989, of 4 pages addressed to Mrs A. Avidan (the costs agreement). 2. In her Affidavit sworn 22 August 1991 and filed in the costs proceedings, the Solicitor deposed to giving her client, the Applicant, in the main proceedings a copy of the costs agreement. 3. At the time of swearing her Affidavit, the Solicitor knew that the costs agreement, a copy of which was Annexure "A" to her Affidavit, was not a genuine document and was not a copy of any document handed to her client on 7 September 1989. 4. The Solicitor propounded the costs agreement and a copy of it as a genuine document when she knew that it was not. Ground 4 - gross overcharging 1. The Solicitor charged legal costs relating to the main proceedings in the total sum of $355,174.99. 2. The said costs were paid by or on behalf of the Applicant. 3. An itemised bill prepared to enable taxation of costs totalled $146,056.72. As at the present the said bill has not been taxed. 4. The sum of $355,174.99 was grossly in excess of a sum for legal costs which would be charged by Solicitors of good repute and competency. 5. In the circumstances the charging of the sum of $355,174.99 constituted professional misconduct. Ground 5 - improperly receiving and using facts and documents 1. In the costs proceedings the Solicitor prepared and swore, on 22 August 1991, an Affidavit entitled "Affidavit of Carol Anne Foreman in Reply to an Affidavit of the Wife Sworn 13 March 1991." 2. In the following paragraphs, the Solicitor deposed to receiving documents from, and being informed of facts by, Mark Symonds, a Solicitor who had formerly acted as such for the Applicant's husband, Mr Daniel Avidan, and a company Discovery Clothing Pty Ltd:5.3: 5.3.3.10 - 5.3.3.22 inclusive;5.9: 5.9.6.1 - 5.9.6.9 inclusive;5.10; 5.12; 5.14; 5.41.1; 5.41.2; 5.41.6; 5.41.7; 5.44; 5.45; 5.47; 5.57. 3. The facts of which the Solicitor was informed and the copy documents which she received were provided to the Solicitor in circumstances where she was informed that Mr Symonds was acting in breach of his professional obligations as a Solicitor by providing the facts and documents to her. 4. The Solicitor used the facts and/or documents or some of them in the main proceedings on behalf of the Applicant. 5. In the circumstances the receipt by the Solicitor and use of the facts and documents by her constituted professional misconduct. Supplementary complaints On August 26 1993 which was the tenth day of the hearing the Complainant sought leave to amend by filing supplementary complaints. After hearing submissions the Tribunal adjourned and the following day granted the application in a written ruling a copy of which is attached. The supplementary complaints and particulars are as follows: 1. The Solicitor deliberately gave false evidence to the Tribunal: Particulars A. When referring to the interview with Lindsay Simpson of the Sydney Morning Herald at page 467 of the Transcript (T) the following exchange between Counsel for the Complainant and the Solicitor took place:"Did you say, of the current allegations, that you were convinced that you had been singled out partly because you are a high profile woman? - No.""You were quoted as saying high profile woman, but I take it you deny that you said that? - No, I did not say that." (T467) The fact is that in the interview the following exchange occurred.Ms Simpson asked: "So why did you think this has all happened to you?"Miss Foreman said: "That's a good question. I think because I'm a high profile woman. I have to see that as one reason. I have always believed that I was simply a lawyer. I've never even looked upon myself as a female lawyer. I've always just thought I was just a lawyer, but it does seem to me that for some reason, being a woman in this situation seems to have exacerbated the problem. I don't know if there's any feelings or comment on that. I don't know whether family law, because it has just an emotive flavour. Its just the whole thing got out of hand and..."Ms Simpson said: "Tall poppy syndrome"Miss Foreman said: "And the tall poppy syndrome." B. When referring to an interview with Lindsay Simpson of the Sydney Morning Herald at pages T466-468 and 472 the following exchange between Counsel for the Complainant and the solicitor took place:"Did you say, and I quote, `Well there is one element in the complaint which I will be admitting that I have done'?" - "No""You didn't say that? - No.""You have read the article, I take it? - Yes""And you know that the statement is attributed to you in that article? - Yes""But I take it you say you didn't say that? - No." (T467-468)"I just want to make clear whether at any stage in the interview you said words to the effect that there was one element in the complaint that you would be admitting that you have done? - No I didn't say that"."Would you agree with me that in that interview you did not concede that you had done anything wrong? - I wasn't asked to concede anything in the interview I just answered the questions as Mr Garling allowed me to, asked of the reporter." (T472) The fact is that in the interview the following exchange occurred.Ms Simpson said: "But you haven't done anything wrong in terms of altering documents?"Miss Foreman said: "Well there is one element in the complaint which I will be admitting that I had done but it's not related to any of the matters that you're dealing with." 2. Alternatively the solicitor failed to conduct herself with complete honesty and candour in giving her evidence to the Tribunal. Particulars The particulars to paragraph 1 are repeated. 3. Alternatively, in giving the evidence referred to in the particulars to paragraph 1 the solicitor sought to mislead the Tribunal. The Tribunal as a matter of fairness to the Solicitor and being mindful of the comments of the High Court in Smith v NSW Bar Association (1992) 176 CLR 256 proposed that the proceedings be adjourned to enable the Solicitor to obtain advice and consider her position and indeed subsequently the Tribunal proposed a further adjournment once the Complainant's case on these additional charges had been presented. The Solicitor declined the adjournments and the matter proceeded. In fact, the evidence on these charges was given on 6 and 7 September and then addresses were completed on the second of those days. The Complainant called 20 witnesses to give oral evidence and had admitted into evidence some 36 exhibits which included Statutory Declarations from most of the witnesses called and some Affidavits from the costs proceedings admitted by consent. The witnesses who were called to give evidence were:Alan John Sullivan <MS>QC- who appeared for the firm in the costs proceedings in the Family Court;Lynette Enid Brown - a client of the firm;Lynda Michelle Purchase - who was employed by the firm as an administrative assistant/secretary to the Solicitor from 2 May 1988 until 3 November 1990;Ailsa Patrice Rawlings - a continuing employee of the firm from 23 October 1989 who between 1 October 1990 and 22 March 1991 worked as a secretary in the Family Law section;Christopher Ian Anderson - forensic document examiner;Judith Helen Robson - a solicitor now employed by the Solicitor, who was employed by the firm between July 1988 and October 1991 and who from August 1989 worked with the Solicitor in the Family Law section;Brian Thomas Wilson - the managing partner of the firm;Dennis Foulstone - whose company printed stationery including letterheads for the firm during the relevant portion of 1989;John William Lees - a partner of the firm;Gerard Francis Murphy - a paralegal with the firm who was employed as an accounts clerk in October 1991;Kathryn Frances Kearley - the solicitor in the firm who instructed Counsel in the costs proceedings;Andrew Francis Fernon - an employed solicitor with the firm since 6 June 1988;Geoffrey Craig Kirby - Senior partner of the firm;Therese Moehner - the manager of records and supplies for the firm who was manager office services during the latter half of 1989;Lynette Anne Sladden - administrative assistant employed by Adrian Twigg & Company who assisted in the instructing of the client's Counsel during the costs proceedings;Matthew Robert Broadfoot - a partner of Duesburys;Paul Joseph Johnson - chartered accountant of Duesburys;The Client;Grahame Richardson - Barrister;David Charles Tonge - a partner of the firm. The Solicitor gave evidence on her own behalf and had admitted into evidence some forty exhibits including four separate exhibits which comprised different categories of statutory declarations as to character. None of the character witnesses were required for cross-examination by the Complainant. Ground 1A - misleading the Family Court of Australia - Subpoena and Notice to Produce The evidence before the Tribunal was that the Solicitor first saw the client on 7 September 1989 and on that day or soon thereafter the Solicitor made out a time sheet (the original time sheet) in relation to that consultation. The original time sheet was in the normal course of the conduct of the professional business of the firm photocopied for the client's file and then sent to the accounts department of the firm where it was posted or entered by Mr Murphy on 15 September 1989 for billing purposes. Subsequently the original time sheet (of which exhibit R is a copy) was sent off for storage at a location away from the office of the firm. In cross-examination Mr Wilson gave evidence that in late 1990 he formed the opinion or judgment that the Family Law section of the firm should be closed down and this was communicated by him to the partners of the firm including Miss Foreman. Mr Wilson told the Tribunal that in his opinion the Family Law division of the firm was not paying its way and that Miss Foreman and the others in the division should no longer practice Family Law after June 1991. Miss Foreman acknowledged that someone from management had communicated with her about the level of aged Family Law debtors sometime before February 1990. (T506). There was evidence before the Tribunal of a number of confidential office memoranda circulated in early 1991 to the partners of the firm from the managing partner Mr Wilson, Miss Foreman and another partner Mr Robert Spies. Those office memos related to the decision to close down the Family Law section which was strongly opposed by the Solicitor. For a period virtually no new clients were accepted in the Family Law section and then in March 1991 the Solicitor secured a reprieve and the Family Law section was effectively placed on trial for six months to the end of September 1991 when from the evidence its continuation or termination was to be considered. The circumstances surrounding the absence of a signed costs agreement in the Client's matter are examined under Complaint 1B but it is sufficient for the purposes of Complaint 1A to note that as at July 1990 the Solicitor was aware that the Family Law section of the firm was not able to produce a signed costs agreement in the Client's matter. In a memorandum to Mr Spies apparently in response to his memorandum of either 21 January 19 or 29 January 1991 the Solicitor's evidence at T515 is that she told him the firm held a signed costs agreement in the Client's matter. Exhibit 11 dated 13 July 1990 is a firm office memorandum from the Solicitor's secretary and another employee of the firm to Mr Spies and is entitled "Costs Agreement". It is in response to an office memorandum of the same date addressed to the Solicitor and Mr Tonge from Mr Ken Eggert on behalf of management which listed a number of matters including the Client's matter where costs agreements had been requested in Family Law matters that owed $10,000.00 or more or had $10,000.00 or more in work in progress. The Client's matter was one of the matters in that list. The evidence before the Tribunal was that the Solicitor was overseas in early July 1990 and returned to Australia in mid-July. The Solicitor at some unspecified date in July 1990 re-wrote her time sheet for 7 September 1989. That re-writing exercise involved creating a new second page of the time sheet and adding to it "gave her costs agreement - & property inf sheet" and "she to consider her position and get back to me". In her Statutory Declaration (exhibit 28) the Solicitor admits her re-writing of the second page of the copy of the time sheet and the destruction of the file copy of the original second page of the time sheet (which file copy was, of course, itself a photocopy). The Solicitor acknowledged in cross-examination that having re-written that second page she photocopied her re-written version and then destroyed the original writing of July 1990 plus the photocopy of the writing of September 1989 (T499). The resultant document was a photocopy of the first page of the original time sheet and a photocopy of the re-written second page of the time sheet and this document (the July time sheet) is exhibit J. The creation by the Solicitor of the July time sheet is not the subject of complaint but it is important in the sequence of events and reliance by way of explanation is placed upon it by the Solicitor in relation to the actions that she subsequently took. The Solicitor was asked (T500) a series of questions in relation to the July time sheet:"But I understand from your evidence to Mr Stitt that you felt perfectly entitled to take the steps you took and we have just been through in relation to the page two in July 1990? - Yes, what I meant there was that if I hadn't re-written the time sheet in July 1990 then I would not have been caused to re-write the whole of the time sheet on 20 October 1991. In other words it was that re-writing in July 1990 which I had failed to recollect which, in part, led me into error on 20 October. "That is the reason for regret, isn't it? - Yes."I will come to the change, to the first page and the second page, in October 1991, in a while, but for the moment I want to focus on the events of July 1990. You tell us that you were conscious of this pressure between July 1990 and October 1991 that the management of the firm, particularly Mr Wilson, was trying to close down the family law section of the firm? - Yes.""You believed that you were under pressure from the management, not only to have costs agreements, but also to ensure that the existence of such agreements was meticulously documented in the records of the firm, correct? - Yes.""It is the fact, isn't it, that you understood in July 1990, that what Mr Spies was after was costs agreements signed by the client? - Yes.""And he wasn't pressuring for records of having handed an unsigned form of agreement to a client, was he? - No, but we couldn't find the signed copy so if we can't find the signed copy the next question would be whether one had been given to her at all, that is the way I saw it.""I see. You had been invited, you have told us, to join the firm in 1986 because of your speciality in family law? - Yes.""And I think you regarded yourself, in July 1990, as the best practitioner in that field, is that correct? - Yes.""And you were anxious to avoid criticism about the state of your records? - Yes."Mr Donohoe: "So influenced by those matters affecting your personal career, and thinking that the occasion may arise where Mr Spies would want to see the time sheets, you took the steps that we have gone through? - Yes.""And they were, in a nutshell, steps to improve the records, do you agree? - To make them complete, yes.""And to make them better in respect of the second page, than they appeared to be before? - Better in the sense that there were matters of truth recorded on them, yes.""And better in the sense that what you contended for did not appear on the second page which was the true contemporaneous record? - Yes." The July time sheet was produced to the Client's new solicitors on discovery in August 1991 as if it were a copy of the original time sheet (of 7 September 1989) but this is not the subject of complaint. The issue of a Subpoena and a Notice to Produce to the firm by Adrian Twigg & Co. in October 1991 resulted in the solicitor issuing a request dated 17 October 1991 calling for the originals of time sheets relating to the client's matter for the period from 7 September 1989 to February 1991 (annexure D to exhibit Q). The annexure bears an endorsement:"Received two boxes5.00 p.m. 17/10J. Robson" The Statutory Declaration of Mr Murphy (exhibit Q) expressed the belief that the receipt was wrongly dated and that the documents were delivered on 18 October 1991 which was the Friday. Before the time sheets were delivered to the Family Law section they were photocopied and those photocopies retained in the accounts department. The photocopy of the original time sheet became Exhibit R in this matter and the original has never been found. The evidence of Rosemary Sciberras (exhibit P) in paragraph 8 was in the following terms:"I recall that on the afternoon of Friday, 18 October 1991 I had a telephone conversation with Ms Foreman at which time I was requested to attend at her office. I attended her office and whilst there I had a conversation to the following effect:Foreman: "Why do some of the time sheets have batch numbers and posted stamps on them and not others?"Sciberras: "Because they are posted in batches and sometimes the batch number and the amount of time is only put on the first time sheet."Foreman: "Well, what about the posted stamps?"Sciberras: "It's the same thing. Sometimes they are only put on the first time sheet." There was no objection to that Statutory Declaration and Miss Sciberras was not required for cross-examination. In her cross-examination Miss Foreman (T543) stated that she thought she spoke with Miss Sciberras at the request of Counsel "who wanted some particulars about the procedure relating to the making of the original time sheets and the accounting procedures". She conceded at that stage that Counsel did not know anything about "posted stamps" and she did not recall looking at the time sheets on the Friday and seeing the batch numbers and posted stamps (T544) but subsequently denied this (T547). The Tribunal is satisfied that by the time the conversation with Miss Sciberras took place the Solicitor had examined her time sheets with some care. The Solicitor gave evidence that on Sunday October 20 which was the day before the commencement of the hearing of the costs proceedings she was in the office of the firm. Miss Foreman's evidence in chief as to her discovery on that Sunday morning of the original time sheet is recorded at page 450 of the transcript as follows:"I recall that there were boxes of time sheets in the Avidan matter which had been collated by other people, not by me, and I was walking past the desk on which a number of boxes were sitting and I looked in one of the boxes and there were my time sheets in that box. I sort of went in, sort of to pat them and make them neat because, they looked a bit untidy, and I flicked over the second page the diary of 7 September 1989 which was the first entry and when I looked at it I realised it looked different, it looked smaller than I believed the entry was. I then...I took the entry and I went to my office and I got the entry from the July, as it was, the July 1990 entry, and for the first time, I realised that I had written the July entry, and up until that time I did not realise or remember that I had written it. I experienced feelings of absolute panic and nausea, and that's all I can remember, but I do concede that I obviously then wrote, rewrote the whole entry." Miss Foreman acknowledged (T451) that she rewrote the time sheet in the bay and that she placed the date stamp on the document and asked why she made the entry Miss Foreman replied"When I had the feelings of panic and nausea, I at that time looked at it and realised it was not complete and true and I believe I wrote it to make sure that it was true and complete because I had been re-writing my diary entries to protect myself against management for the last couple of months before that. I had been sitting up every night making them perfect and re-writing them, and I just think that I went into some emotional overdrive where I just simply re-wrote the diary entry. I can't explain it. It was the most stupid thing, I just can't explain why I did it." The sequence of events following Miss Foreman's discovery of the original 7 September 1989 time sheet on Sunday October 20 1991 is from the evidence as follows:1. Miss Foreman re-wrote the time sheet so that without the most careful examination it appears to be the original of the July time sheet (exhibit J) which had been produced on discovery.2. It was a matter of both pages being re-written and from examination of the two documents it was clear that that involved considerable care.3. She then had her former secretary Miss Purchase (who had come from Tasmania to give evidence in the matter) assist her by making entries in her handwriting on the re-written time sheets at the solicitor's request. We accept Miss Purchase's evidence that she was asked in words to the effect "Lynda, could you mark this time sheet up as you would have done if it were the original". At T559 the Solicitor acknowledges that she did not warn Miss Purchase about the significance of what she was doing.4. The Solicitor wrote various numerals in red biro on the document (T559) to correspond with the numerals on the original time sheet.5. The Solicitor then added office stamps to the new document. The original had been stamped "POSTED GM 15 SEPT 1989" on both the first and second pages. Miss Foreman had no access to that stamp. She had access to a "date received" stamp and she put that stamp on the document she had rewritten. The Solicitor accepted that she rolled the date back from October 1991 to 15 September 1989.6. The solicitor put the document she had so created (the reconstructed time sheet) with the documents which had been assembled for production for the Court (T560).7. There is no evidence of the whereabouts of the original time sheet from the time of the creation of the reconstructed time sheet. Mrs Robson refers to a conversation with Miss Foreman in early 1993 in which the Solicitor said:"Clive Curwood has asked me what I did with the original time sheet. I can't even recollect that day at all. I can't believe that I would have destroyed it. Did I tell you?"Miss Robson replied "No. You only told me that you had copied it out." When asked by Mr Lees on 28 October 1991 where the original time sheet was, Miss Foreman responded: "You should look through the boxes of time sheets that were retrieved from accounts some days earlier". Mr Lees' subsequent search was unsuccessful. In her evidence (T463) Miss Foreman was confident that she did not destroy the original time sheet "because I knew that the copies were in accounts". The Solicitor admitted destroying the original of her rewriting of page 2 of the time sheet created in July 1990. Her denial on 12 August 1993 that she destroyed the original time sheets on or after 20 October 1991 is not critical to the establishment of the complaint but it displays a certainty which the Tribunal finds inconsistent with her prior uncertainty and with any logical explanation of the circumstances. This evidence is a source of concern in assessing the Solicitor's explanation of her conduct and her evidence of her remorse. It is apparent from the transcript in the costs proceedings (p.229) that both Mr Porter <MS>QCand Mr Sullivan <MS>QCbelieved that the time sheet produced to the Court and dated 7 September 1989 was prepared about that time. Indeed, the transcript reveals that Miss Purchase was cross-examined at some length on Tuesday, October 22 1991 by Mr Porter in relation to the very document which she had assisted Miss Foreman to prepare two days earlier. It was a disgraceful consequence of the Solicitor's conduct that such a situation could arise. However, the Court and Counsel were all misled, Miss Purchase was not cross-examined as to the authenticity of the document and following the settlement of the proceedings by the firm two days later it appeared that the Solicitor's conduct in misleading the Family Court had not been detected. It is clear from the evidence that this misconduct was only brought to light following investigations carried out by partners of the firm and through the security system that applied in that the original time sheets were photocopied before they were produced to the Court. Mr Lees gave evidence that during the course of the hearing he had on 23 October 1991 been shown a photocopy of part of the time sheet dated 7 September 1989 which indicated that the Solicitor had handed the client a costs agreement. On the following day at the request of another partner of the firm, Mr Eggleton, Mr Lees was shown the account's copy of the original time sheet (also dated 7 September 1989) which differed from the time sheet he had seen in the Court the previous day, in that the second page contained one entry as opposed to the three entries in the version shown to him by Mr Eggleton. Mr Lees then commenced an investigation into the differing time sheets with the senior partner of the firm and he and Mr Kirby met with Miss Foreman on Sunday 27 October 1991. Mr Lees' evidence at paragraph 13 of Exhibit O details the effect of what was said on that occasion by the Solicitor in relation to the second time sheet as follows:"The second time sheet, which included three entries on page two, had been prepared by me in July 1990. The reason I prepared it was that at that time I was under great pressure from Bob Spies and administration to prove to both his and their satisfaction that costs agreements were in existence. I prepared the file note as evidence of the fact that I had provided a costs agreement to Miss Weiss on that day. I have a recollection, independent of any file note, that I gave a costs agreement to Miss Weiss on that occasion. I had, on the occasion of preparing the second document destroyed the file copy of page two of the time sheet which I had prepared on 7 September 1989. I kept on file a photocopy of the completed time sheet prior to dispatching the original to accounts for processing." The Solicitor acknowledged at page 563 that at that Sunday meeting the partners knew that she had re-written the July time sheet but they did not know that the time sheet had been re-written on the previous Sunday. The Solicitor is, of course, not charged with misleading her partners, but the Tribunal regards this material as significant in that it is indicative of the Solicitor's state of mind and approach in that she persevered with a line of conduct which was wrong and which a responsible solicitor must have known was wrong. The following day Mr Lees and Mr Eggleton visited the exhibits office of the Family Court and examined exhibit C in the costs proceedings which is exhibit 8 in this matter. They observed that this particular document bore a date received stamp of 15 September 1989 without the posted stamp. Mr Lees and Mr Eggleton apparently then appreciated for the first time the fact that page one of the time sheet had also been re-written. That day the Solicitor was confronted by Messrs Kirby and Lees and resigned as a partner of the firm. She made no response to Mr Lees' assertion:"The Court has been misled by virtue of the firm's failure to produce the two versions of the time sheet and whether or not that misleading of the Court was inadvertent or deliberate the firm is obliged to rectify the situation" The Tribunal regards it as significant that in her Declaration filed in the Tribunal the Solicitor swore that the unaltered original was produced to the Family Court (para 13(d)) and at page 464 of the transcript before the Tribunal the Solicitor admitted that that was incorrect. The Solicitor's explanation (T473) that the fee structure and management policy of Clayton Utz forced her to "practice in the manner that was not compassionate, not caring and being totally cost driven, was impossible and therefore that policy forced me into my terrible error" is not an acceptable explanation, even in part, of the Solicitor's behaviour. There certainly was a real issue as to whether the Family Law section of the firm was to continue. We have had the opportunity of reading various inter-office memos on the subject. It is obvious that Miss Foreman accepted the challenge and confronted those who opposed the continuation of the section on their own terms quoting her interpretation of results achieved by the section. The events might indeed be described as a state of conflict within the partnership. In the months prior to October 1991 as the Solicitor stated at 451 she had been "re-writing my diary entries to protect myself against management for the last couple of months before that. I had been sitting up every night making them perfect and re-writing them". There was pressure on the Solicitor in relation to the client's matter in that no original costs agreement could be found. In July 1990 page two of the September 1989 time sheet was re-written to show that a costs agreement had been handed to the Client. That costs agreement was under challenge in the Family Court proceedings and the time sheet was re-written in full by the Solicitor on Sunday 20 October 1991 before being produced to the Family Court. The Tribunal finds that the Solicitor's conduct on 20 October 1991 and subsequently, in relation to the time sheet, constitutes a series of acts culminating in the misleading of the Court. It was calculated behaviour in which the Solicitor persevered to protect her position "It was the fear that my whole professional career was coming to an end" (T558). The Solicitor persevered in a deceitful course of action to protect her career, her position in the firm and inevitably the firm's position in the costs proceedings brought by the client. It is clear that Miss Foreman was not in Court when the reconstructed time sheet was produced. We do not regard that as material. We find the only explanation for the creation of the document is so that it could be so produced to the Family Court in response to the Subpoena or Notice to Produce. The significant fact is that the two pages created by the Solicitor on Sunday October 20, 1991 were produced to the Court on 22 October 1991 and although in her statutory declaration (exhibit 28 para 16) the solicitor suggested that the Court "may have been misled", she ultimately agreed under cross-examination (at 562) that the Court was misled. There can be no question that the Court and Counsel for the Client and the firm were misled. In Re: Hodgekiss 1962 SR 340 at 355 Hardie J in dealing with an appeal from the Statutory Committee on a trust account matter said:"It is, in my opinion, the duty of the Court to look carefully at the facts, that is to say, both the oral and documentary evidence, and direct its mind to the question as to whether it is comfortably satisfied that the Solicitor wilfully breached the provisions of the Act." Subsequently at 356 His Honour said:"In the instant case the charges of wilful breaches of ss.41 and 42 of the Legal Practitioners Act are serious ones, involving elements of gravity and having, if established, serious consequences for the personal and professional reputation and standing of the solicitor; this being so, and having regard to the principles established by the authorities it is reasonably clear that, although the charges need not be proved beyond reasonable doubt, the Court has to be comfortably or confidently satisfied that they have been made out." Counsel for the Solicitor submitted in relation to this complaint that the Solicitor's conduct may constitute unsatisfactory professional conduct and that it should not be characterised as professional misconduct. The description of that term in the Legal Profession Act refers to conduct that "falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner". Apart from the non-exhaustive definition of professional misconduct in the Legal Profession Act the common law test still applies and the test formulated by Lapes LJ in Allinson v The General Council of Medical Education and Registration (1894) 1 QB 750 at 763 in a medical case (since approved as a test of professional misconduct by legal practitioners) has for good reason been long accepted:"It is important to consider what is meant by "infamous conduct in a professional respect." The Master of the Rolls has adopted a definition which, with his assistance and that of my brother Davey, I prepared. I will read it again: `If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency,' then it is open to the General Medical Council to say that he has been guilty of `infamous conduct in a professional respect.'..."I do not propound it as an exhaustive definition". Applying the principles of Hardie J in re: Hodgkiss (supra) the Tribunal is comfortably satisfied that the actions of the Solicitor not only had the effect of but, indeed, had the intention of misleading the Family Court. Her actions were deliberate, indeed, carried out with meticulous care. In failing to produce the original time sheet to the Court and in producing another document which differed materially from the original time sheet the Tribunal finds that the Solicitor has misled the Family Court of Australia. The Tribunal finds that this misconduct in misleading the Family Court certainly falls within the terms of both "disgraceful" and "dishonourable" on that formulation. It is much more serious than conduct fitting the description "unsatisfactory professional conduct" as submitted by the Solicitor's Counsel. We find that in relation to this complaint the Solicitor is guilty of professional misconduct. Complaint 1B - Affidavit of documents sworn 19 August 1991 In response to a request for discovery in the costs proceedings the Solicitor swore an Affidavit of Documents which was dated the 19 August 1991 and was filed in the Family Court. The Affidavit was annexure "M" to the Declaration of Mr Smith (exhibit G). The "copy cost agreement" itself was exhibit "G" in the costs proceedings and exhibit C before the Tribunal. For this complaint to be established the Tribunal must find firstly that there was no costs agreement dated 7 September 1989 and secondly that the Solicitor knew that there was no such agreement. The findings on fact in relation to this complaint materially affect grounds 3B and 4. There are, indeed, a number of issues of concern in relation to the document itself: (i) Was a costs agreement prepared for the Client on 7 September 1989? (ii) If so was the costs agreement given to the Client? (iii) If so, was the document referred to as copy costs agreement in the Affidavit of Documents, in fact, a copy of the document given to the Client? (iv) Did the Client sign a costs agreement dated 7 September; and (v) If not, did the Solicitor have reasonable grounds for believing that the Client had signed a costs agreement dated 7 September 1993 and that the copy document was a copy of that signed costs agreement? The evidence was clear from Miss Purchase and the Solicitor of an established course of conduct in dealing with potential clients and new clients of that section. This involved Miss Purchase, during the initial phone call when an appointment was sought with Miss Foreman, almost invariably giving what was described as "the spiel". This was a brief outline of the Solicitor's charges including her charges for the first interview. The first visit to the firm of a new client involved the preparation of "the package" which was given to the client after the client had initially completed a "client information sheet". A copy of that sheet completed by the Client is part of exhibit A. The Solicitor in her time sheet for that initial interview failed to record that she had handed the costs agreement or indeed the package to the Client and that was one of the matters that was inserted on her first re-writing of page two of the time sheets in July 1990. The Solicitor gave evidence that that re-writing related to facts of which she had an independent memory or recollection. In paragraph 3.1 of her Affidavit sworn on 22 August 1991 in the costs proceedings (Annexure "N" to Exhibit "G the Solicitor deposed to handing the costs agreement to the Client and to having given the Client the pamphlets and explanations required under the Family Law Rules. The Client's Affidavit sworn 13 March 1991 (excluding annexures) was exhibit 24 in these proceedings. Paragraph 3 was as follows:"I have not at any time signed any form of costs agreement. I do recall being handed a costs agreement by Miss Foreman to the best of my recollection in the first week that I consulted her, but I never signed that costs agreement" In her Declaration in these proceedings sworn 3 December 1992 the Client denied being given the original of the costs agreement dated 7 September 1989 and also denied reading it, signing it or delivering it to the Solicitor or any other person. The Client acknowledges receiving and completing the client information sheet which was consistent with the office procedure detailed by Miss Purchase. The Client's response to questions in relation to these contradictory statements was that her recollection had changed by the time she swore the Declaration but that at the times the Affidavit and the Declaration were sworn she believed the statements were true and correct (T.313). The members of the Tribunal having observed the Client giving her evidence formed the view that she was confused in answering questions and that her earlier recollection should be accepted. The evidence of Miss Purchase in relation to the first meeting with the Client on 7 September 1989 and her recollection of conversations with the Client that day relating to mutual associates helped the Tribunal to feel comfortably satisfied that a costs agreement was prepared for the Client on September 7 1989 and handed to the Client that day. There is no dispute that a second costs agreement was prepared on December 11 and handed to the Client. That document was retained by the Client's father. The Solicitor gave evidence of asking Miss Purchase in December 1989 before the Solicitor went to Bali to make sure that the Client signed and returned the costs agreement. The Tribunal has no hesitation in determining that a costs agreement in this matter was received at Duesburys on 14 December 1989 and then retrieved by the firm. Mr Broadfoot gave clear evidence that a costs agreement for the Client was found by him amongst the financial documents which he received in relation to the matter from the firm. He did not observe whether this was signed. Although that evidence was clear and unequivocal it was corroborated by evidence of two chartered accountants who were employed by Duesburys in December 1989, Roger William Flynn and Paul Joseph Johnson both of whom saw and recognised the costs agreement, but neither of whom knew whether it was signed. The recollections of both Miss Purchase and Mr Broadfoot corresponded as to the conversation that ensued prior to the cost agreement being retrieved by the firm from Duesburys' office. Miss Purchase was quite clear in her evidence that she received the document back from Duesburys, checked that it was signed, and put it in a box file for filing. Both she and the Solicitor gave evidence that Miss Foreman obtained confirmation from Miss Purchase shortly before Christmas 1989 that the costs agreement had been signed and returned to the firm. Of all the people who were involved in working on the Client's file in the firm only one person, Miss Purchase, saw the signed costs agreement. In addition, Mrs Robson gave evidence of the conversation on 27 July 1990 in which the Client confirmed that she had signed and returned the agreement (Exhibit "H" para. 19). The Client denied signing the costs agreement and also the conversation with Mrs Robson. We carefully observed each of the witnesses giving their evidence and while we have no doubt that the Client gave her evidence to the best of her recollection, we found her evidence and recollection confused. It is apparent that the main proceedings were bitterly contested and involved an intense emotional involvement of the Client over many months. Her legal expenses were being paid by her father and during the main proceedings there is no doubt that her focus and preoccupation was the litigation with her husband and the mechanics of the costing arrangements were not on the evidence matters to which she directed her mind at the time. A firm memorandum (Exhibit 11) of which Miss Purchase was a co-author is dated 13 July 1990 and quite calmly reports that Mrs Robson will look for the agreement. We were impressed by Miss Purchase whose evidence we found to have been given carefully and frankly and we find that she did indeed receive a signed costs agreement from the client in December 1989. This finding does not, however, resolve this complaint. The question of the alleged "concoction" is important to this complaint. Miss Rawlings gave evidence of a conversation in which Mrs Robson said "We can't find the Avidan costs agreement. We want to have a look at what the costs agreement looked like at the time. We will need to get a copy of a costs agreement that we used at the time". Miss Rawlings told us that such a document was found and that she was instructed by Mrs Robson "we just need to see what it was like, so blank out the date, name, address and signature at the bottom". Miss Rawlings photocopied the document, used liquid whitener to obliterate the specific details and then photocopied the document and supplied the photocopy to Mrs Robson. Miss Rawlings' evidence is that she was then asked by Mrs Robson to type in the Client's details on the form, which she refused to do. Miss Rawlings' recollection as to whether she ultimately did type those details on the document was unclear. It was her belief that Miss Foreman was not present during this conversation and that some time later Mrs Robson went into Miss Foreman's office with a copy of what she believed to be the costs agreement and said to Miss Foreman words to the effect "This is what we are looking for" (para 15 of annexure B to exhibit D and Tr.136). Apart from the Robson/Foreman conversation the evidence of Miss Rawlings to which we have referred is not evidence against Miss Foreman and her evidence of the conversation between Foreman and Mrs Robson is too uncertain to be relied upon as evidence of complicity or involvement in any document creation. Miss Rawlings clearly resented having been involved in preparing the form of costs agreement. We observed and considered with care her evidence and the manner in which it was given. We accept that she was encouraged by Mr Tonge, one of the partners of the firm, to believe that her first statement had gone to the Complainant and it was unlikely that she would "be partaking in any proceedings" (T125A). We accept that her second statement remained unprinted and formed the view that Miss Rawlings although she personally had nothing to hide, hoped that the problem would go away, as it reflected a state of affairs that brought no credit upon her firm. The evidence of Miss Rawlings in relation to the preparation of the copy of the costs agreement and the conversations surrounding those events was denied by Mrs Robson. Apart from carefully reading their written testimony we had ample opportunity to observe these two witnesses and to consider their respective demeanour and responses. The production of a form of costs agreement was a strikingly clear event to Miss Rawlings and appears from her evidence to have, in her view, sinister overtones. From the perspective of Mrs Robson this may have been an unimportant routine and innocent step in trying to find a missing agreement. We prefer and accept the evidence of Miss Rawlings of these events but we are not comfortably satisfied that the events she described were in fact the acts involved in creating a concocted copy of the costs agreement. Whatever was being done it did not involve Miss Foreman apart from the conversation on the delivery of the copy to her which we find inadequate to base any finding as to her being involved. However that does not resolve the issue of whether there was a concocted costs agreement and whether a copy of it was produced to the Family Court. Both these matters need to be addressed as well as the issue of Miss Foreman's knowledge. The Tribunal acknowledges an obligation to examine these and other relevant aspects of the evidence in detail which has led to this judgment being a very lengthy one. This obligation has recently been stressed by the Court of Appeal in the following terms: "The Tribunal carries out functions of fundamental importance to the legal profession and to the public generally. It has great responsibilities which carry, as a necessary incident, obligations to conduct inquires before it in an efficient and expeditious manner and in such a way as to accord justice to the parties before it. One aspect of that obligation is the giving of reasons which clearly explain the findings of fact which have been made and the reasoning process leading not only to those findings but to the ultimate conclusion or conclusions." (per Clarke JA Malfanti v Legal Profession Disciplinary Tribunal (Unreported) Court of Appeal 23 August 1993 page 16). A copy of the costs agreement dated 7 September 1989 was referred to in the Affidavit of Documents and produced pursuant to it on discovery. It is on a letterhead of Clayton Utz which did not exist as at 7 September 1989. The Tribunal accepts the evidence of Mr Foulstone the printer and Ms Moehner that this letterhead only became available for the first time on 28 September 1991. Miss Purchase attempted (statement of 22 January 1992 being part of Exhibit "HH") to explain the situation away by reference to an advance delivery of some stationery for a few hours in September 1989. This does not explain the appearance of both the 7 September 1989 costs agreement on the wrong letterhead and the Brown letter dated 13 September 1989 found by Miss Foreman during the hearing of the costs proceedings in October 1991. The letter that Miss Brown had and brought to the Family Court was on a photocopy letterhead with original typing and an original signature which Miss Foreman acknowledged to Mr Lees was her handwriting. This was never satisfactorily explained but it is not the subject of a complaint and the Tribunal is not persuaded that the letterhead used was, in fact, available on either September 7 or 13. The evidence of Mr Anderson the document examiner, in particular the report which formed part of exhibit F, led the Tribunal to be comfortably satisfied that the copy costs agreement referred to in the Affidavit of Documents was created on or after 28 September 1989. Mr Anderson examined various documents and his report on the copy costs agreement and the letter of 13 September 1989 to Ms Brown were of assistance to the Tribunal. In relation to the copy costs agreement Mr Anderson observed that it was "at least a copy of a copy" and that in relation to the last page "there are what appears to be added dots and fine lines along the signature and witness lines. It is possible that these dots and lines are evidence of previous signatures or entries that have been obliterated". Mr Anderson's expert observations in relation to the Brown letter included the statement:"there is clear evidence of some form of liquid opaquing substance having been applied to the original in two areas. These being: (a) in between the printed headings `Our Reference' and `Your Reference'. The entry `807/147/582926' has been typed over this area; (b) below the printed heading `Your Reference'". The date `13 September 1989' has been typed over this area." His conclusions were not absolute but his evidence coupled with that of Mr Foulstone and Miss Moehner leave the Tribunal comfortably satisfied that the copy of the costs agreement referred to in this complaint was a copy of a document created after the delivery on 28 September 1989 of the firm's then new letterhead. We are satisfied that the document is a concoction or subsequent creation. We find that there is no evidence of Miss Foreman having any involvement in the creation of that copy of the Costs Agreement. She admits that on one occasion Mrs Robson did say to her "We have found a copy" and we accept that Miss Foreman dismissed this as being a copy. Finally in relation to this complaint it is important to determine on the basis of these findings whether Miss Foreman was aware that the copy of the Costs Agreement being the document referred to in the Affidavit of Documents and produced pursuant to that Affidavit on Discovery was a concoction or subsequent creation. It is apparent that over a long period of time, most if not all, members of the Family Law Section of the firm, though certainly on her evidence not Miss Foreman, searched for the Costs Agreement and copies of it. In relation to this complaint some reliance was placed by the solicitor upon the fact that the Affidavit of Documents was prepared by Mrs Robson and indeed a draft copy with her handwriting was an exhibit in the proceedings. The solicitor in these proceedings on a number of occasions sought to pass responsibility for her conduct or lack of action upon other persons. In our view Miss Foreman was the solicitor responsible for the conduct of the main proceedings with an ongoing responsibility in the costs proceedings. On the occasions she delegated matters to other partners or employed solicitors she retained an overall responsibility for the matter to the client and to the Court. In swearing her Affidavit of Documents as a Solicitor and an Officer of the Court, Miss Foreman was responsible to ensure that the Affidavit of Documents was correct. To suggest otherwise is, in the view of this Tribunal, clearly not acceptable. However, even though that is a matter that is not central to the Tribunal's decision, since it was raised on behalf of the Solicitor it is appropriate that it be addressed and indeed clearly dismissed for we saw no merit in it at all. The Tribunal has carefully considered the evidence and finds there is no evidence to suggest that Miss Foreman had any part in the creation of the copy costs agreement referred to in this complaint nor is there any evidence to suggest that she was aware when she swore the Affidavit of Documents that the copy costs agreement had been concocted or created after 28 September 1989. This complaint is accordingly dismissed. Ground 2 - Abusing the process of the Family Court The essential elements of this complaint were that in the costs proceedings the solicitor swore an affidavit that contained some 34 pages of material said to be wholly irrelevant to the issues in the proceedings designed to dissuade the client from continuing with her costs application against the firm and that this conduct constituted an abuse of the process of the Court. At the commencement of the sixth day of the hearing the Law Society called Mr Grahame Richardson Barrister to give evidence. Mr Richardson had been engaged as counsel for the client in the main proceedings and had on one occasion appeared for the firm against the client in costs proceedings before he withdrew. Evidence was given by Mrs Robson in her declaration (Exhibit "H") of a conversation with the Solicitor in July or August 1991 in which Miss Foreman said to the following effect:"Grahame (Grahame Richardson barrister) has advised that we should include in our affidavits detailed reference to all our dealings with Mark Symonds on the wife's behalf to show that she had lots of advice from an independent solicitor. She had discussions with you about how Symonds charged more than me didn't she?" The Tribunal was informed that Mr Richardson had taken the general attitude that he should not speak to the Law Society except in circumstances where Miss Foreman had waived privilege which she did not do. There was no declaration from Mr Richardson and no statement from him and he had declined to speak both to the Law Society and to counsel for the solicitor. He adopted a totally independent stance. In his evidence Mr Richardson acknowledged that he had had a discussion with Miss Foreman in relation to the contents of affidavits filed in the costs proceedings and these included the subjects dealing with Mr Mark Symonds on the wife's behalf. Mr Richardson stated in relation to his advice to Miss Foreman (T354):"I expressed a view at that time that as it was my understanding that the wife in those proceedings, who was the applicant against Clayton Utz, had, as I understood it, pleaded in her case that she did not receive the benefit of independent advice from any other solicitor, nor did she have the opportunity to obtain independent advice from any other solicitor in relation to matters pertaining to the Clayton Utz costs agreement, that it was my view that on that issue the extent of the very intimate and day to day involvement of Mr Symonds in the ongoing conduct of her case was relevant, and that was the view I expressed". Although there were directions from the Tribunal as to the filing of declarations by each party, the Solicitor elected not to file any declarations until after the closure of the Law Society's case. One other witness was called briefly by the Law Society after Mr Richardson gave his evidence and the Law Society then closed it's case. An application was then made on behalf of the solicitor (T360/361):"That a number of the grounds ought to be stayed or dismissed on the basis that either on the evidence as it is now revealed the Tribunal has no jurisdiction to make a finding of misconduct, or alternatively, that the allegations supported or not supported by the evidence constitute an abuse of the process of the Tribunal, because the evidence reveals that those matters are not capable of constituting misconduct and that if that is the correct analysis, and if that is the correct result, then there is at this stage no basis for saying that Miss Foreman is capable of being found guilty of professional misconduct". That application related to a number of the complaints including Ground 2. The Tribunal had already made a ruling in relation to Ground 5 after hearing submissions which were based upon a consideration of the powers vested in the Tribunal under s.163 "after it has completed a hearing into a complaint". This issue was the subject of argument and deliberation by the Tribunal on August 10. On August 23 judgment was delivered by the Court of Appeal in Malfanti v Legal Professional Disciplinary Tribunal (unreported). The application by the solicitor in relation to Ground 2 had in reality much of the nature of a "no case" application although not expressed in those terms. In Malfanti Clarke JA with whom Handley JA agreed said at page 6:"In principal I see no reason why a solicitor should not seek to argue that the evidence adduced against him or her is incapable of establishing in law one or more of the grounds relied upon by the Law Society. Indeed if counsel for the solicitor seeks to argue that there is no evidence to support any of the grounds in the complaint I find it difficult to understand why a submission analogous to a `no case' argument should not be entertained when the Law Society closes its case. The position may not be the same where the solicitor wishes to contend that some grounds are not supported by evidence while conceding that others are. In some cases, for example, where there are discrete issues involved in the particular grounds the subject of the submission, it may be convenient to entertain a submission of no case. In others where, for instance, the grounds in respect of which the submission is to be made are, or possibly may be, linked with other grounds in respect of which it is conceded there is evidence it may be proper for the Tribunal to require the solicitor to give his or her evidence without ruling upon the submission.It is impossible in my view to lay down a rigid rule. The Tribunal is bound to mould its procedures to enable it efficiently and effectively to carry out its functions in an expeditious matter. In making these comments I have not overlooked the principle that a solicitor who appears before the Tribunal is bound to assist it in its investigations". If we had had the benefit of the judgment of Malfanti the ruling that was given in relation to Ground 2 and also earlier in relation to Ground 5 may have been expressed differently although the effect was the same. There appears to have been a simple explanation in respect of Ground 2 and it was that Miss Foreman had acted upon the advice of Mr Richardson. Mr Donohoe <MS>QC<D> for the Law Society conceded in relation to this ground and indeed in relation to Ground 5 in response to the solicitor's application for a stay or dismissal"If the evidence stands as it is, that it cannot make out professional misconduct". (T380) Mr Stitt <MS>QC<D> for the solicitor announced in the course of argument (T412):"That in respect of ground five and ground two I do not lead any evidence, and I ask that ground five and ground two be dismissed now". The Tribunal then subsequently delivered a short judgment in relation to the application. The relevant portion for the purposes of this complaint is as follows:"As to ground two, the Complainant has not gone so far as today that it does not propose to take that ground any further, the indication being, as we understand it, that the Complainant may seek to pursue ground two further in the event that the respondent should elect to adduce evidence other than evidence in relation to ground two. The Tribunal is of the view that in these circumstances it would be manifestly unfair to the Respondent if the Tribunal were to permit the Complainant to take advantage of cross-examining the Respondent or any witnesses she might see fit to call in respect of ground two of the Complaint if the Respondent does not open the issue of ground two in any case she might see fit to present to the Tribunal. The Tribunal therefore indicates that it would reject any such attempt which might be made in the continuation of these proceedings". The evidence clearly was that Miss Foreman sought counsel's advice. While the Tribunal has reservations as to whether it was appropriate for that advice to be sought from a member of the bar who had previously represented the client, nonetheless, it is clear that there can be no professional misconduct in this particular situation where the solicitor properly sought and acted upon competent advice. In the circumstances, the Tribunal finds that there is no evidence to support this ground, and consequently it is dismissed. However, it is dismissed in the context of the Society quite properly raising the matter and obtaining the evidence that was required to resolve this issue in the only manner, in the circumstances, that was open to it. Ground 3A - Propounding false documents Time sheet dated 7 September 1989 This complaint is based upon the facts and circumstances already detailed in relation to Ground 1A. There is no dispute that there was a reconstructed time sheet and that that reconstructed time sheet was produced by the solicitor to the Family Court in the costs proceedings. The second particular we find established in that the reconstructed time sheet was false in that it included words that were not in the original time sheet. We find it was not false in that what was recorded on the reconstructed time sheet actually reflected what had happened in so far as the Solicitor did on 7 September 1989 give the client a costs agreement and the property information sheet. We find however that in our view it is not essential that the Society establish each particular given in support of its complaint to establish the complaint itself and to establish that the matter complained of constitutes professional misconduct. The Tribunal has made a number of findings after a consideration of the evidence on time sheets in relation to Charge 1A. On the basis of that evidence and findings the Tribunal finds in terms of the complaint that the purpose of the Solicitor's rewriting the time sheet of 7 September 1989 on 20 October 1991 was indeed to conceal the existence of the original time sheet from the Court, the client and the client's legal representatives. The reconstructed time sheet prepared on the eve of the hearing of the costs proceedings was intended by the Solicitor to appear consistent with the July 1990 version of the costs agreement produced under discovery and consistent with an argument that a costs agreement had been given to the client, signed, returned to the firm and subsequently lost. For the time sheet produced to have omitted the reference "Gave her costs agreement - & prop inf sheet" would have undermined the "strong" case that Miss Foreman felt her firm had in answer to the client's application. The Solicitor through her counsel and indeed in her own evidence placed great reliance upon the evidence of the pressure under which the solicitor was operating in the practice of her profession on 20 October 1991. The Tribunal certainly formed the clear view that the Solicitor is a person of very considerable personal inner strength. She expressed her pride in her achievements and her standards. The Tribunal has had the opportunity not only of observing the Solicitor in the witness box and throughout a lengthy hearing but it has had the opportunity of carefully reading the office memoranda which formed part of the exhibits in this matter. The Tribunal is of the view that Miss Foreman elected to enter into conflict with the managing partner and some other members of the partnership of the firm on the issue of the continuation of the Family Law section of that firm. We make no criticism of her for that. In our view the evidence of the memoranda of which she was the author and the success that she had in overcoming a policy decision to close the Family Law section and to achieve a six months' trial period displayed consistent strength of purpose. The Solicitor was able to achieve in that six monthly period results which from the report are not consistent with a person who was likely to succumb to pressure and "freeze" as she testified. Indeed, in the view of the Tribunal, the Solicitor readily accepted the challenge. Her evidence indicated her very large personal client base and a high degree of prominence in her chosen field of practice. Her numerous referees were supportive of her personally, many of whom indicated the practice of referring clients and friends to her for assistance in the Family Law area. The option previously offered by the managing partner of her practising in another area was rejected and on the evidence that was clearly not an option that would appeal to the Solicitor. There was an alternative of establishing a separate specialist practice but clearly that alternative she rejected until after the costs proceedings, when she resigned. We accept that there was pressure on the Solicitor on 20 October 1991 but we find that was pressure of a real, but not disabling nature, arising out of the pending costs proceedings which put the Solicitor under personal challenge. She had made a judgment that the firm would be successful in the application, and it is obvious from the evidence that her view of the correctness of her judgment was most important to her from a financial viewpoint, from a position of her personal standing, and in the context of success in her ongoing battle with the management. The Tribunal is comfortably satisfied that fear of the consequences and the prospect of the discovery of her prior alteration of the time sheet in July 1990 were factors in the preparation and propounding of this document. The fear was described by the Solicitor (at T558) as:"It was the fear that my whole professional career was coming to an end." The Tribunal does not accept the Solicitor's evidence of the coincidental discovery on October 20 1991 of the difference between the original time sheet and the copy from the Solicitor's file which was Exhibit J. However, even if the Tribunal is wrong in coming to the conclusion that the Solicitor was actually looking for that time sheet being concerned that it would show a discrepancy between the copy and the discovered time sheet, then what followed was in any event a careful, meticulous and disgraceful exercise involving a number of deliberate steps on the part of the Solicitor. The Tribunal finds that those were not actions performed in panic but coolly reasoned and carefully executed. These were deliberate steps taken by the Solicitor to defend her own situation in the proceedings and in her dispute against some of her partners and, indeed, steps to protect her professional career. The Tribunal finds, taking into account these matters and the findings in relation to Ground 1A, that the reconstructed time sheet was in the circumstances propounded by the Solicitor as the original time sheet and we find her conduct in propounding this document as if it were the original, constitutes professional misconduct. Her conduct, in our view, satisfies the test already referred to as applied by Lopes LJ in Allinson (supra). Ground 3B - Propounding false document - the purported copy of a costs agreement dated 7 September 1989 The elements of this ground involve the propounding of the Costs Agreement and a copy of it as a genuine document when the Solicitor knew it was not. For the reasons already outlined in favour of the Solicitor in relation to Ground 1B we find that this ground is not established and dismiss this complaint. Ground 4 - Overcharging In his opening address counsel for the Law Society in relation to Ground 4 stated"Ground 4 concerns gross overcharging, and it is said with respect of that that the charges made by the firm were grossly in excess of a sum which would have been charged by solicitors of good repute and competency who were charging without the benefits of a costs agreement (T3)". Later on that same day after argument (at T44) Mr Stitt <MS>QC<D> for the solicitor summarised the position on this complaint taken by counsel for the Law Society in the following terms which was accepted as a formulation by Mr Donohoe <MS>QC<D>:"What he seems to be saying in essence is that the Law Society's case was now back to the proposition that because there was no costs agreement then the costs were excessive, because one has to bear in mind that the itemised tax bill was taxed in circumstances where there was no costs agreement in place". Issues were raised a number of times in relation to the nature of this ground and shortly before the conclusion of the fourth day of the hearing following further submissions, the Tribunal sought to clarify the result of the various discussions and submissions in a statement from the Chairman in the following terms (T279):"My understanding of the result of those discussions is this, that the Society's case stands or falls on whether or not there is a costs agreement.If it should be the decision of the Tribunal that there was a costs agreement, then as I understand it then on the part of the Law Society there is no case of overcharging.If it should be our decision that there was not a costs agreement, then on the part of the solicitor it is conceded that there was overcharging". That analysis was accepted by both counsel subject only to arguments about the personal element by the solicitor bearing in mind of course that the charges were made by the firm on a computerised system and covered the work of persons other than the solicitor. The accounts were calculated from time sheets by the Accounts Department with a number of accounts being signed by partners other than Miss Foreman. On that "personal element argument", the Tribunal finds on the evidence that the Solicitor was the solicitor responsible for the conduct of the client's instructions and that she, even though a partner of a large firm, must accept responsibility for the charges made to that client when she is the responsible solicitor. The Tribunal has for the reasons detailed in relation to Ground 1B found that it is satisfied that the costs agreement was signed by the Client and accordingly it follows that given the formulation of the Society's case there can only be one finding. This complaint is accordingly dismissed. Before progressing to the fifth ground however, there are some issues the Tribunal thinks it is appropriate to raise in relation to complaints of overcharging generally in Family Law matters. Firstly, Order 38 Rule 8 of the Family Law Rules provides that a solicitor may enter into an agreement as to costs with a client. The resultant agreement under sub-rule (2) must be in writing and under Rule 8(3)(c) the agreement may be enforced or set aside in the same manner and on the same grounds as any other agreement. It is clear under the Rules that a solicitor who seeks to rely on such a costs agreement bears the onus of establishing that agreement. The agreement should be seen as a commercial one in the context of a professional relationship between the solicitor and client. The obvious justification is that the Rules Committee of the Court sees advantage in appropriate circumstances for clients to be able to retain the services of solicitors where those services are only available at rates above the scale rates. The test to be applied in the consideration of such agreement was expressed by the Full Court of the Family Court of Australia in Re P's Bill of Costs (1982) FLC 91-255 at 77,420 as follows:"The ultimate question is whether the solicitor affirmatively establishes that the contract was entered into by the client freely, making an independent and informed estimate of the matter. The essential nature of the proposed agreement and the degree and impact of its difference from the prescribed fees must be explained and understood and accepted. It must be a real and genuine choice, that is, a free exercise of an independent mind". The second matter is that the Costs Agreement itself apart from the question as to whether there was a meeting of minds must: also bear some consideration of its terms. In the matter of Veghelyi (1991) 7 LPDR 13 at p.15 the Tribunal stated:"As indicated however the Tribunal accepted that valid fee agreements were entered into between Mrs Hamilton and the Solicitor for the purposes of Order 38 rule 4 of the Family Law Rules. That however is not an end to the matter. The Tribunal must, it believes, determine whether the costs actually charged by the Solicitor to his client, even if calculated pursuant to the fees agreement represented such a gross overcharge as to introduce a connotation of disgraceful or dishonourable conduct by the Solicitor sufficient to justify a finding against him of professional misconduct". In the costs proceedings in October 1991 the Agreement was certainly challenged, but the matter was settled, so there was no finding by the Family Court. The complaint of overcharging in these proceedings has been presented on the basis that there was no costs agreement between the Solicitor and the Client and the Solicitor has answered that: complaint to the satisfaction of the Tribunal. The Law Society did not approach complaint 4 on the basis that there was no meeting of minds necessary to create an agreement, nor that the charges, irrespective of the agreement, were excessive. No doubt the course it took was undertaken for good reason based on material that is not before the Tribunal, so while it is clear that these issues should be flagged for the benefit of the profession they were not elements in the complaint brought against the Solicitor in this matter. Ground 4 is, for the reasons already given, dismissed. Ground 5 - Improperly receiving and using facts and documents The matters particularised in relation to this charge are that in an affidavit filed in the costs proceedings, the Solicitor deposed to receiving documents and being informed of facts by Mr Mark Symonds, solicitor. Mr Symonds was alleged to have formerly acted for the Client's husband in circumstances where Miss Foreman was informed that Mr Symonds was acting in breach of his professional obligations as a solicitor in providing the facts and documents. The particulars further alleged that the facts an documents or some of them were used in the main proceedings and that the receipt and use of the facts and documents by the Solicitor constituted professional misconduct. On the first day of the hearing counsel for the Solicitor submitted that this ground was not capable of giving rise to the relevant charge and that the Tribunal had no jurisdiction or alternatively the charge ought to be stayed. The Tribunal ruled, after consideration of the submissions to it by the Solicitor and the Society as to Ground 5 as follows (T50):"...the Tribunal is mindful of the fact that, it has been put on many occasions before, we have a statutory jurisdiction here, we only have the powers that are given to us by statute, and as we see it, as those powers relate to the problem that is before us today...those powers only give us the right to bring in a finding of professional misconduct or a finding of no professional misconduct. Having considered what has been said on behalf of the parties in relation to ground five and having now heard the Law Society say in effect, and I hope I am construing correctly what the Law Society has said, that the Law Society is not in a position to take ground five any further than the ground as stated in the complaint and the particulars numbered one to five of ground five. The Tribunal is of the view that on that basis the only finding the Tribunal could properly bring in would be a finding of no professional misconduct in relation to ground five". That ruling was based on a view that the Tribunal adopted under Section 163 that its power to make findings was a power exercisable "after it has completed a hearing into a complaint". The Tribunal is of the view that it was implicit in its ruling that the ground as pleaded did not constitute professional misconduct. Since that ruling was made the Court of Appeal has in Malfanti (supra) expressed the clear view that not only is it appropriate in particular circumstances for the Tribunal to consider a submission of "no case" but also to endorse the right of a solicitor "to argue that the evidence adduced against him or her is incapable of establishing at law one or more of the grounds relied upon by the Law Society". Clearly in view of those comments by Clarke JA it was open to the Tribunal to dismiss this complaint rather than make the ruling of August 2. In any event the Tribunal remains satisfied that this complaint was misconceived in that as pleaded it failed to disclose any breach of duty by Miss Foreman. She had a duty to the Client quite separate from any duties that Mr Symonds may have had to his clients. Both solicitors, of course, maintained an ongoing duty to the Court but the facts as particularised we find do not ground an allegation of professional misconduct. The Solicitor indeed as part of her duty to her Client had a duty to use, where appropriate, documents and information that came into her possession or knowledge. The Tribunal accordingly finds that the fifth complaint as particularised establishes no professional misconduct and that complaint is dismissed. Supplementary complaints These complaints arose out of evidence given on the eighth day of the hearing by the Solicitor in answer to questions in cross-examination relating to an interview that the Solicitor had given to a reporter from The Sydney Morning Herald in July 1993 shortly before this hearing commenced. There is no charge or complaint made in relation to the Solicitor having given that interview. The Solicitor accepted that she gave the interview "bearing in mind that these proceedings were going to commence soon" (T645A) in part: "to try and forestall unfair publicity soon before or in the course of these disciplinary proceedings" (T646). The interview had been recorded and two short transcripts were admitted into evidence as exhibit 40. The Law Society conceded that there were some small errors in the transcripts but those matters we found were not of consequence. The two transcripts are as follows: A: "Journalist: So why do you think this has all happened to you?Ms Foreman: Um, - that is a good question (pause) I think that because I am a high profile woman, I have to see that as one reason. I have always believed that I was simply a lawyer, I have never ever looked upon myself as a female lawyer or woman lawyer, I always just thought that I was just a lawyer, but it seems to me that for some reason being a woman in this situation seems to have exacerbated the problem. I don't know whether Kim has any feelings or comment on that, but - um - and whether family law because it has sort of such an emotive flavour, it is just - the whole thing has got out of hand - Journalist: And the tall poppy - Ms Foreman: And the tall poppy syndrome." B: "Journalist: But you haven't done anything wrong in terms, of altering document or - Ms Foreman: Um, well, there is a - there is one element in the complaint which I will be admitting that I have done, but it is not related to any of the matters that you are dealing with.Journalist: And that was just simply an oversight - Mr Garling: No, I think that...Ms Foreman: No.Mr Garling: It is unfair to - I think you are revealing a guilt that doesn't need to be revealed. I don't mean publicly - I mean, if you have a standard that is up here and you do something which you don't normally do, you feel very guilty about that. The sort of thing that Carol is talking about is something that most people would do every five minutes and not worry about it. It is just for her it is it will be a big admission, and I think it should be left - " Dealing firstly with that part of the interview involving the use of the term "high profile woman", it is clear that the Solicitor did use the term "high profile woman", but the issue before us became the context in which those words were used. The Solicitor (at T639) explained that in giving her answers she believed them to be true and correct and that "in the context of the first, question, he was asking me did I say of the current allegations that I was convinced that I had been singled out partly because I was a high profile woman. That was absolutely not correct".' It was conceded by the Law Society that Miss Foreman did not say in the interview in precise terms that she was convinced that she had been singled out (T714). The Law Society contended that the questions put, to the Solicitor in cross-examination were an accurate paraphrase of what had been said in the interview. The Society submitted that the second question was not in its form expressly related to the first question. The Society put it that the question related to the Solicitor using the words "high profile woman" in the interview and not in the context of the part of the interview referred to in the immediately preceding question. The Solicitor stressed however that she answered the second question in the complaint in the context of its following the previous question and being in the same context. The Tribunal was troubled by various aspects of the Solicitor's evidence and in the context of this first supplementary complaint we found the Solicitor to be inappropriately pedantic and evasive, in that by the very nature of these proceedings we would have expected the Solicitor to have given her evidence in a completely open and forthright manner. Having observed the Solicitor's demeanour in the witness box, and the manner in which she gave her evidence, in the view of the Tribunal those desirable traits were lacking. In her answers in relation to the discussion with the journalist as to the "current allegations", at T643 in relation to the first of the two questions the Solicitor was asked:Q: "I thought you said that when you gave that answer and you say it is truthful, you had regard to the matters that you have identified, none of which include a reference to the Law Society complaints?"A: "No, what your question said was, `of the current allegations', which I took to include all of the allegations in the complaint". The "all" we regard as evasive and inappropriate. The Solicitor accepted (T644) that she had identified in the interview at least six matters relating to the current complaints. In this context the Solicitor said (T651):"I was being asked questions which encompassed some of the allegations that were made in the complaint, but at no time was I asked questions relating to "of the current allegations" which includes all the allegations, never during the whole of that interview". The Tribunal finds the evidence of the Solicitor unsatisfactory on a number of questions relating to "the current allegations" aspect of this complaint. That does not, however, resolve this complaint but it is one of the factors that the Tribunal has taken into account in its assessment of the Solicitor for the purpose of determining the appropriate findings to be made in these proceedings. Although we have been troubled by some of the evidence of the Solicitor we find that the explanation of the Solicitor which involves the two questions being answered in the same context is just as logical as it is to treat these as being on discrete issues. On that basis we cannot be comfortably satisfied that any one of the three alternative supplementary complaints as to that first part of the interview has, in the light of the Solicitor's explanation, been made out. Accordingly the three alternative supplementary complaints as to the first part of the interview are dismissed. The second part of the interview gave rise to the questions in cross-examination starting with "Did you say, and I quote `Well there is one element in the complaint which I will be admitting that I have done'?". (T466-468 and 472.) From Exhibit 40, and having listened to the tape of the interview with the journalist, the Tribunal is satisfied that in her various denials particularised, the evidence of the Solicitor was in error. The Solicitor acknowledged that she did make the statement, alleged to the journalist and explained this to her Counsel by saying that she thought Mr Garling said it. At 640:Q: "In giving those answers what, at the time, was your belief?A: "At the time my belief was that the journalist had asked a question in relation to the alteration of documents and I had commenced to answer by use of the word "Well" and Mr Garling had interrupted and answered for me and it was always my belief that the admission that was made was made by him and was not made by me and I held that belief until such time as I heard the tape in your Chambers". On the tape it is clear that Mr Garling also spoke but we do not accept that his answer related to the one element in the complaints that the Solicitor admitted, namely the alteration of the time sheet of 7 September 1989 on 20 October 1991. From Exhibit 40 and the tape the Tribunal is satisfied that Mr Garling said "the sort of thing that Carol is talking about is something that most people would do every five minutes and not worry about it, it is just for her, it is...it will be a big admission, and I think it should be left". In the cross examination of the Solicitor at 672 the following exchange occurred:Q: "Can you explain why you said nothing about your belief that Mr Garling said something on that subject when I asked you the question I asked you at 467?"A: "I wasn't aware at that time that my recollection was in error until I heard the tape."Q: "But if you believed Mr Garling had said something on this subject and you thought it proper for the journalist to pursue, why didn't you tell the tribunal about it?"A: "You only asked me whether I had done it, I did tell my legal representatives what the position was, but you didn't ask me that. You only said to me whether it was something that I had done, and I said `No'."Q: "And you didn't think it proper to say something to this effect, `Well, there was a discussion on that subject, but that was said by Mr Garling'?"A: "Mr Donohoe, you didn't ask me that question." Further evidence on this issue followed at T673: "And Mr Garling was there making, as you understood it, an admission on your behalf? - Yes""On this very subject? - Yes""Didn't you think it would have been candid to make some reference to that? - I just answered your question, Mr Donohoe""And you don't think it would have been candid to say `Mr Garling was there and he said something on this subject'? - No, but I told my legal representatives that that was the position.""But you didn't see fit to tell me or the Tribunal? - Mr Donohoe, you didn't ask me the question." There is no dispute that the Solicitor's evidence which led to the second part of the supplementary complaint was incorrect. The first and third of the three alternate supplementary complaints involve a high degree of intent. The giving of false evidence, and the act of seeking to mislead the Tribunal, are not matters of mere error or mistake. There must be a wilful act, and it is clear that there was an issue as to whether the Solicitor had a belief that the words that she, in fact, used were words that were spoken by Mr Garling. The evidence of the Solicitor in relation to this aspect was most unsatisfactory in so far as in the knowledge that the words had been used in the conversation, she elected to deflect the issue with denials rather than be forthright and explain that her recollection was that the words were spoken but by Mr Garling not herself. The evidence is that the Solicitor's belief at the time her evidence was given was that the words had been spoken by Mr Garling. That evidence is accepted and accordingly, the Tribunal dismisses the allegation of deliberately giving false evidence and of seeking to mislead the Tribunal. In the second of the three alternatives, the Society complains that the Solicitor in giving her evidence failed to conduct herself with complete honesty and candour. The issue here is whether the Solicitor lacked complete honesty and candour in relation to the giving of this specific evidence and not in relation to the whole of her evidence in the proceedings. We have considered the original evidence and the Solicitor's explanation of it, particularly the matters that have already been quoted in relation to this complaint. The Solicitor acknowledges that she was aware that the statement had been made. She acknowledges that she discussed it with her legal advisors. She was asked quite a number of questions relating to the words used in relation to the "one element in the complaint which I will be admitting". Those questions certainly gave her plenty of opportunity to be forthright as the Tribunal expects solicitors who appear before it to be forthright. There was a very simple explanation available to the Solicitor and that was to the effect "that was said but not by me. Mr Garling said it on my behalf". The Solicitor was quite deliberate in giving this evidence. In fact, she was wrong, she elected not to provide the Tribunal with the information that she had from her recollection, but to rely on evading the issue. In New South Wales Bar Association v Kalif (Court of Appeal, unreported, 11 October 1988) one of the complaints included that of lack of candour to the Solicitors Admission Board. Kirby P said at p.4:"I have said that the Court may look to the practitioner whose conduct is under scrutiny to display candour and complete honesty in the conduct of the case. The practitioner must do so in responding to questions including those posed by the Court." At p.7 His Honour concluded:"The disclosure whilst not dishonest, lacked appropriate detail and frankness." At p.7 of his judgment Mahoney JA said:"It is in my opinion, the duty of a practitioner in questioning such proceedings to make a full and frank disclosure of the facts." The Solicitor persevered with her defence of her answers throughout cross-examination, although it is the view of the Tribunal that her position was untenable. The Solicitor sought on August 12 1993 to avoid acknowledging that the statement was made whether by herself as in fact occurred or by Mr Garling as she deposed (and at the time thought). The Solicitor's responses to the questions referred to in the complaint included five denials and this evidence lacked the frankness and detail required of the Solicitor and was designed to avoid disclosure of what the Solicitor thought had been said on her behalf where she clearly recalled what had been said though not by whom it was said. As to the second of the three alternative supplementary complaints, we find, based on the evidence which has been detailed in this judgment, that the Solicitor lacked complete honesty and candour in answering the relevant questions and that that lack of complete honesty and candour constitutes professional misconduct. Character evidence The Tribunal was assisted in its ultimate determination of this matter by a large number of Statutory Declarations as to the character of the Solicitor. Unfortunately, some of the declarations went beyond character. One such stated "I feel it is a travesty of justice that she be subjected to such proceedings and suffer such discrimination in the public arena", clearly a most inappropriate remark to have been made in such a declaration, or to have been submitted in evidence in these proceedings. However, the declarations were all tendered without objection and admitted into evidence as to the character of the Solicitor. These declarations were both personal and professional and they included declarations of the Chief Judge of the Land and Environment Court, 18 Solicitors, four Queens Counsel, four accountants, and four clients. The declarations of character reflect a consistently high regard for the competence and standing in the profession of the Solicitor. The various declarants frequently express views to the effect that if the allegations in the complaint are proven they are inconsistent with their knowledge and prior dealings with the Solicitor or are quite out of character. The declarations from members of the legal profession almost invariably make it clear that the declarants have never had reason to put in question the Solicitor's honour, honesty or integrity. A large number of the declarants indicated a wish to continue referring clients to the Solicitor whom they regarded as a fit and proper person to continue practising as a solicitor, even if the allegations are proved. In the light of the serious nature of the complaints, especially when viewed in the totality of the allegations of misconduct before the Tribunal, some of the views expressed by some declarants appeared extravagant and that reduced their assistance to the Tribunal. The declarations from existing and prior clients of the Solicitor consistently expressed appreciation of her high quality work, efficiency and professionalism as well as her compassion and understanding. Declarants from the Bar indicated a willingness to accept briefs from the Solicitor. The solicitors generally expressed willingness to accept her word and undertakings. Each of the declarations annexed a copy of the complaint. With the exception of the declaration of Mr Burbidge <MS>QC<D>, none of the declarations are expressed to be made in the knowledge of any admissions having been made by Miss Foreman in relation to any of the complaints nor are they expressed to follow any discussion of her conduct alleged in the complaints. The declarations establish clearly the character and standing of the Solicitor in the legal profession and with her clients. While Mr Burbidge does not in support of the Solicitor give evidence of any express admission, explanation or contrition from the Solicitor, his declaration is of direct assistance to the Tribunal in assessing the Solicitor. Mr Burbidge says:"As to the first three grounds it is my understanding that Miss Foreman does not dispute the alteration to the time sheets referred to in ground 1 A3 and ground 3. It is my belief that in so doing she exhibited a serious error of judgment and that she did so in consequence of pressures within the firm to which she was exposed at the relevant time. Miss Foreman is a highly intelligent practitioner and I would regard her action as extraordinarily stupid and completely out of character. If the second matter in ground one and the matter in ground two are established I would regard these as part of the aberration demonstrated by the alteration of the time sheet. It is my opinion that if the matters referred to in grounds one to three are established they are of such a character and so at variance with what I would expect of Miss Foreman in the future that she would not thereby be established to lack the fitness and propriety required of a solicitor. I have not had occasion other than in connection with the present proceedings to doubt Miss Foreman's honesty and integrity, and I am well aware that she is regarded as one of the leading practitioners in her chosen field, that of Family Law". This declaration is based on insight into the circumstances. The tender by the Solicitor in her case of this Declaration reflects credit on the Solicitor in that it does focus on and acknowledge, albeit with an explanation, the seriousness of her having altered the time sheet and the consequential impact that this has upon her reputation for honesty and integrity. Conclusion In summary the Tribunal has found: Ground 1A Professional misconduct established 1B Dismissed 2 Dismissed 3A Professional Misconduct Established 3B Dismissed 4 Dismissed 5 Dismissed Supplementary A All alternative complaints dismissed Supplementary B Professional Misconduct Established on the second of the three alternative complaints The effective findings against the Solicitor are: (a) That the Solicitor misled the Family Court of Australia by failing to produce to that Court on subpoena and/or notice to produce, the original time sheet required but produced another document which differed materially from the original time sheet (complaint 1A); (b) That the Solicitor propounded a false document in that she prepared a reconstructed time sheet for an attendance on 7 September 1989 and propounded that document to the Family Court concealing the existence of the original time sheet from the Court, the Client and her legal representatives (complaint 3A); and (c) That in evidence before the Tribunal in relation to an interview the Solicitor gave to a reporter from the Sydney Morning Herald the Solicitor failed to conduct herself with complete honesty and candour in giving her evidence to the Tribunal (supplementary complaint 2B). The Tribunal has found that the conduct of the Solicitor in respect of each of the three complaints established constitutes professional misconduct. The Law Society in the original complaint seeks an order that the name of the Solicitor be removed from the Roll. The recent decision of the Court of Appeal in The Law Society of NSW v Bannister (unreported, 27 August 1993) contains a summary of the approach to be taken by the Tribunal. Sheller JA with whom Gleeson CJ and Handley JA agreed said at p.1O:"It is sometimes said that the jurisdiction of the Tribunal and of this Court invoked by complaint against a solicitor is not to punish the Solicitor but to protect the pubic...However the distinction between the two stated objectives of protection and punishment is blurred and can be misleading. Obviously, where a barrister or a solicitor has been convicted and punished for a serious offence the jurisdiction of the court to disbar the barrister or remove the name of the solicitor from the roll can be said to have nothing to with punishment; see Ziems v the Prothonotary (1957) 97 CLR 279 at 286. In Ex parte Brounsall (1778) 2 Cowp 829; 98 ER 1385 a solicitor had been convicted of stealing a guinea and had suffered imprisonment for nine months and also branding of the hand. On an application to strike him off the roll and in answer to an argument advanced on the solicitor's behalf that he had already received sufficient punishment, Lord Mansfield at 830 and 1385 said that the defendant's having been burnt in the hand was no objection to his being struck off the roll. `And it is on this principle; that he is an unfit person to practise as an attorney. It is not by way of punishment; but the Court on such cases exercise their discretion, whether a man whom they have formally admitted, is a proper person to be continued on the roll or not.' See also Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 680. Such cases illustrate that the supervisory jurisdiction of the Court and of statutory bodies such as the Tribunal is directed in part to ensuring that the requirement enshrined in the Charter of Justice that persons admitted to practise as solicitors be fit and proper persons or, in the language of s.16 of the Legal Profession Act 1987, of good fame and character is maintained. It follows that if a solicitor is shown not to be a fit and proper person he or she should be removed from the roll. The order for removal is not punitive but protective. Accordingly it is no answer for the solicitor to say that he or she has already been punished for the conduct which shows unfitness. At page 11 His Honour continued:In Ex parte Macaulay (1930) 30 SR (NSW) 193 at 193-4 Street CJ speaking for himself and the other members of the Full Court said:"...unless the Court insists on a high standard of conduct on the part of solicitors - unless the Court punishes severely any lapse from the proper standard - the public will never be properly safeguarded and the profession will never retain the respect which it ought to have in the community." At page 12 His Honour said:"The exercise of the power to remove from the roll, suspend or fine a solicitor is directed to protecting the public by ensuring that those unfit to practise do not continue to hold themselves out as fit to practise and that high standards are maintained. The maintenance of such standards involves deterring the offender from repeating the offence and deterring others who might be tempted to offend." The Tribunal was specifically referred to the decision in Kotowicz v The Law Society of New South Wales (Court of Appeal, unreported, 7 August 1987). In that matter on an application for the restoration to the roll of a solicitor Kirby P at 23 said: "The public's interest also includes the economic interest which is involved in utilising, to the full, the skills of talented people who have undergone years of rigorous training but who, having misconducted themselves, have had to be removed for a time from positions of responsibility and trust. Disbarment or removal from the Roll of Solicitors is not necessarily intended to be permanent in fact." There is a wealth of evidence before the Tribunal of the skill and competence of the Solicitor in her chosen field as a Family Law solicitor and the Tribunal is conscious of the clear evidence of the contribution that the Solicitor has made to continuing legal education in her area of expertise which we regard as relevant on the issues before us. In favour of the Solicitor there is a clear body of supporting evidence of her character and her reputation for honesty and integrity. There is no suggestion of any prior professional misconduct by the Solicitor. Professional misconduct has been established on two counts relating to the time sheet prepared by the Solicitor on 20 October 1991 and in respect of some of the evidence she gave before this Tribunal on 12th August 1993. The two original complaints relate to the one set of circumstances involving the one client while the third matter, of course, relates to answers to questions concerning an interview which related at least in par to her conduct in relation to that client. The area of misconduct is isolated but the misconduct is of grave concern to the Tribunal. Mr Stitt <MS>QC<D> for the Solicitor cited a number of recent decisions of this Tribunal and two of the Court of Appeal to assist. the Tribunal in considering whether to impose a penalty and if so what penalty. Mr Stitt submitted that the Solicitor's conduct could not be characterised as having the same degree of seriousness as the conduct considered in the cases he cited. Obviously it is necessary that there be consistency in the decisions of the Tribunal but it is obvious that the circumstances of the individual solicitors in cases with common threads differ substantially and that must be reflected in the decisions in each case. Indeed, in looking at the question of penalty in Fraser v Law Society of New South Wales (1992) 5 LPDR 12 at 17 Kirby P said:"It is also appropriate to take into account the modest nature of the appellant's practice, when his name was on the roll, when he was working out of a cubicle at the Title Conveyancing Company in Wollongong." That is a very sharp contrast between Mr Fraser's situation and that of Miss Foreman. In this case the Solicitor told the Tribunal she had an enormous profile in Family Law and had as at December 1990 a personal cost base of about $1.5 million which she attracted personally to herself. Both Counsel drew our attention to exhibit HH which consisted of a quantity of correspondence between the Society and the Solicitor commencing with a letter of 22 November 1991. That letter clearly raised the question of the time sheets and referred to copies of the various time sheets being enclosed. That issue was not satisfactorily addressed or explained by the Solicitor in the various responses that ensued on her behalf. The Solicitor's explanation is that she relied upon her advisors. The Tribunal finds that the Solicitor is responsible for the letters that were sent to the Law Society by her advisors. The Solicitor has been in practice in the central business district of Sydney for over twenty years and she is a person with a reputation for meticulous and careful preparation of documentation and general competence. It is quite unacceptable to the Tribunal for the Solicitor to seek to avoid responsibility for her failure to explain, or to express regret for her misconduct in relation to those time sheets until she filed her statutory declaration on 11 August 1993. The time sheet that she re-wrote on 20 October 1991 was a fabricated document. It was not just a re-write. The evidence of the use of the red biro to make entries, and the application of stamps to give a colour of authenticity, all satisfy the Tribunal that it was indeed a fabricated document notwithstanding the submissions on behalf of the Solicitor to the contrary. It was indeed a document put together with meticulous care. Its creation and its subsequent presentation to the Family Court constitute acts which when perpetrated by a solicitor of the experience of Miss Foreman strike at the very foundations of our Court system and the administration of justice. The Courts of this country must be able to depend upon the honesty and integrity of all practitioners appearing before them and to expect that legal practitioners will maintain the highest standards of personal honesty and integrity in their dealings with the Courts. All acts of professional misconduct are grave and weighty matters but the acts of this Solicitor, with her experience, to mislead the Family Court, to propound a false document, and on the specific matter charged in relation to her evidence before this Tribunal, are extremely serious instances of professional misconduct. We find that the evidence of the Solicitor was defensive. She sought to pass responsibility to her own advisors in any situation of difficulty and at times she displayed evasiveness in her answers. The Tribunal concluded that Miss Foreman failed to conduct herself before this Tribunal in a completely open and forthright manner, and that any display by her of contrition was minimal. It is not a question of punishing the Solicitor. The issue is what course should the Tribunal take to protect the public and to register its disapproval of the conduct of the Solicitor. The Tribunal has taken the opportunity to balance the Solicitor's misconduct against her previous character. Her original misconduct was isolated but her evidence disclosed a serious flaw in her character. She retains impressive support from her peers. The manner in which the Solicitor confronted the complaints and her demeanour throughout the hearing was not consistent with the regret expressed in her statutory declaration. The Tribunal does not feel in the circumstances that it has had the benefit of the acknowledgement and remorse expressed to the Court of Appeal in Fraser v Law Society of New South Wales (supra) but it is nonetheless conscious of the prior reputation of the Solicitor for honesty and integrity. It is satisfied that this is not a matter where a finding of unfitness to practise is an appropriate outcome. The disciplinary and protective obligations of the Tribunal will be fully met by the imposition of a fine serious enough not only to mark the Tribunal's strong disapproval of the Solicitor's misconduct but also appropriate to the circumstances of the case. Costs We have been requested by the Senior Counsel for both the Solicitor and the Law Society to hear submissions on the issue of costs after this Judgment has been delivered and we will follow that course. Orders The Tribunal therefore orders:1. That the Solicitor pay a fine of Twenty Thousand Dollars ($20,000.00) within a period of three (3) months from the date of this Order.2. That in default of compliance with Order 1 hereof the Solicitor's practising certificate be cancelled and that a practising certificate not thereafter be issued to the Solicitor until she has complied with such Order.3. That the costs of the Law Society and the Solicitor of and incidental to these proceedings be reserved pending further Order. 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