The Legal Services Tribunal of New South Wales CITATION : Steven John Doran [1996] NSWLST 4 PARTIES : Steven John Doran FILE NUMBER(S) : of 1995 CORAM: Mr R. Clisdell (Chairman) - Ms S Carr-Gregg - Dr M. Costigan CATCHWORDS: Unsatisfactory Professional Conduct - falsely witnessing a document :- LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: In the matter of Wayne Patrick Rigney DATES OF HEARING: 18 June 1996 and 3 July 1996 DATE OF JUDGMENT: 08/07/1996 LEGAL REPRESENTATIVES: Mr N. Nicholls instructed by Mr G. Still for the Law Society Mr P. Neil instructed by Mr W. Beilby for the Solicitor. JUDGMENT: Solicitor purported to witness a number of affidavits signed by an executor in support of a probate application – Solicitor was on the premises but not physically present when documents signed – Oath not administered – Documents filed in the Supreme Court and Probate granted – Tribunal rejects submission that conduct amounts to unsatisfactory professional conduct – Finding of professional misconduct – Solicitor fined and ordered to pay costs. Complaint By resolution dated 13 October 1994 the Law Society Council pursuant to section 155 Legal Profession Act made a complaint that the Solicitor was guilty of professional misconduct in that he purported to attest that he had administered an oath to Ernest William Graham and witnessed his signature in the swearing of Affidavits lodged in support of an application for Probate when the Solicitor was not in fact present to administer the oath or to witness such signature. Facts The Law Society tendered statutory declarations from Garry James Still, Ernest William Graham and Rosalie Ann Graham. Mr and Mrs Graham gave oral evidence. The Solicitor tendered two statutory declarations made by himself, three statutory declarations from Jan Brudzinski and a statutory declaration from Kathleen Wiggins. All gave oral evidence. On or about the 30 April 1993 the Solicitor arranged for a Will to be prepared for his friend Ian McDonald. Mr McDonald died on 10 May 1993. In his will Mr McDonald appointed Mr Ernest Graham to be his Executor. The firm Doran Roberts & Co received instructions to apply for a grant of probate of the late Mr McDonald's will. An experienced probate clerk Mr J Brudzinski prepared the various affidavits and Summons in the Solicitor's office. On 25 June 1993 Mr Graham and his wife attended the office of Doran Roberts & Co so that Mr Graham could execute the affidavits in support of the application. They were seen by Mr Brudzinski. Mr Doran was apparently present in the office but did not meet either Mr Graham or his wife. Mr Doran gave evidence that he was told by Mr Brudzinski that the Grahams were at the office and that he intended to meet the Grahams. As he was about to go to the office where they were seated a mobile phone belonging to another client rang and he took what was apparently an important call. He was seen by Mr Brudzinski to be standing in the corridor outside the office talking on the phone. He had not completed the call when the Grahams left. Mr Graham had signed a number of affidavits in Mr Brudzinski's presence but these documents were not witnessed nor was any oath administered. Mr & Mrs Graham are emphatic that they did not see Mr Doran in the office or hear him speaking on a mobile phone. After the Grahams had departed Mr Doran purported to witness the various affidavits and signed the Summons for Probate. Findings Although there was a clear conflict on some points of evidence the Tribunal does not find it necessary to make particular findings on that evidence. The Tribunal is satisfied that all persons gave evidence of their honest recollection of what occurred on 25 June 1993. There was corroboration for both versions of the evidence but for the purpose of these proceedings the conduct complained of by the Law Society (namely the failure to administer an oath and the execution of documents as a witness when the other party was not present), was admitted by the Solicitor. Accordingly the Tribunal finds that the grounds of complaint are established. Submissions The Law Society contended that on whatever view one took of the factual situation, even on the Solicitor's own evidence, there must be a finding of professional misconduct. Mr Nicholls referred the Tribunal to the provisions of the Oaths Act and a number of decisions of the Tribunal concerning the purported witnessing of documents executed by persons not in a Solicitor's presence. There was a submission that by purporting to witness these documents Mr Doran was in effect making Mr Graham's affidavit false. The Tribunal does not accept that submission. However, the Tribunal does agree with the submission that by filing those affidavits in the Supreme Court there was a misleading of the Court that the affidavits had been properly sworn, although the content of the documents was otherwise accurate. Mr Nicholls submitted that in all cases where a Solicitor purports to administer an oath or witness a document but is not present when documents are signed there must be a finding of professional misconduct. In fairness to the Solicitor, Mr Nicholls further submitted that the conduct of Mr Doran was at the bottom of the range of professional misconduct. Mr Neil sought to distinguish this conduct from other cases. To all intents Mr Doran had always admitted his conduct was wrong (although his first reply to the Law Society complaint was certainly not an admission of any wrongdoing) but that it amounted to unsatisfactory professional conduct. Further, the cases referred to by Mr Nicholls dealt primarily with the false witnessing of mortgage documents. In those cases this amounted to a fraud and loss was occasioned to the lender. Here Mr Doran's conduct amounted to a momentary breach, an impulsive act, which was neither disgraceful nor dishonourable. Mr Doran had seen Mr Graham sign some documents and then shortly afterwards signed those documents as the witness because he assumed Mr Brudzinski had properly administered the oath. In any event Mr Graham was a Justice of the Peace and would have known the nature of the solemn act he was performing. No fraud was created. No loss was occasioned. There was no possible gain or benefit for Mr Doran. Finding of Professional Misconduct Despite Mr Neil's submissions the Tribunal cannot agree that Mr Doran's conduct amounted only to unsatisfactory professional conduct. Solicitors have a grave responsibility to perform all of their duties properly and correctly. The taking of an oath is a solemn act. It is a duty and a right which is given to the profession by Statute. Declarations and affidavits are relied on by Courts and Tribunals. It is assumed by those bodies that if a Solicitor or Justice of the Peace has witnessed documents then those documents have been properly sworn or declared. It is an essential part of the administration of justice that this be the case. The Tribunal accepts the submission of Mr Nicholls that falsely purporting to witness documents and administer an oath must amount to professional misconduct. We agree that such behaviour must be categorised as disgraceful and dishonourable. The Tribunal agrees with the findings expressed in the matter of Wayne Patrick Rigney. In that matter the Legal Profession Disciplinary Tribunal rejected a submission that the conduct of the Solicitor in purporting to witness an affidavit by facsimile amounted to unsatisfactory professional conduct. The Tribunal said at page 12 (Disciplinary Reports No. 3 1993): "The Tribunal finds the conduct of the Solicitor was both disgraceful and dishonourable and that he was guilty of professional misconduct. A Solicitor has the authority to take and receive affidavits by virtue of section 27 of the Oaths Act 1900. This Act provides for the form and manner of taking oaths and in this case the Solicitor blatantly disregarded these provisions." In all other cases where Solicitors have witnessed documents in the absence of the party who signed or purported to sign the documents there have been findings of professional misconduct. The Tribunal does not accept that, because Mr Doran saw Mr Graham sign some documents, this fact makes his conduct any different from that of Mr Rigney or other Solicitors who have been before the Tribunal for false witnessing of documents. Accordingly there is a finding of professional misconduct. Penalty In the Information filed in these proceedings the Law Society sought a finding of professional misconduct and requested that a monetary penalty be imposed. No protective order was sought. The Tribunal is satisfied that a monetary penalty will be sufficient to ensure that this Solicitor will never again be guilty of similar conduct and that the public will be sufficiently protected. The Tribunal must ensure that a message is sent to the profession about the need always to carry out the responsibilities of witnessing documents and taking oaths in a proper manner. Mr Nicholls has conceded that the Solicitor's conduct falls at the lower end of the scale of professional misconduct. With that concession the Tribunal agrees. Mr Doran has expressed his remorse for an impulsive action and the Tribunal accepts that remorse as genuine. The Solicitor was admitted in 1971. He had never been subject to any adverse finding by the Law Society until this matter came to its attention. Three references were tendered on the Solicitor's behalf and all spoke highly of his excellent character and truthfulness. The Tribunal has considered the range of penalties imposed for matters of a similar nature. In particular the Tribunal believes that this matter is very similar to that of Rigney. In that matter a fine of $3,000.00 was imposed and the Tribunal is of the view that a fine of $3,000.00 is appropriate in this case. Orders 1. That the Solicitor pay a fine of $3,000.00 within 30 days from the date of these Orders. 2. That in default of compliance with Order 1 the Solicitor's practising certificate be cancelled and that a practising certificate not be issued to the Solicitor until he has complied with Order 1. 3. That the Solicitor pay the costs of the Law Society as agreed or assessed to a maximum of $4,000. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.