The Legal Services Tribunal of New South Wales CITATION : Ellen Louise Weingarth [1993] NSWLST 12 PARTIES : Ellen Louise Weingarth FILE NUMBER(S) : of CORAM: Mr A. Martin (Presiding Member) - Mr C. Robison - Mr E Barnum CATCHWORDS: Professional Misconduct - make false statement :- LEGISLATION CITED: Legal Profession Act 1987 Ian Burnham Mitchell (1992) 1LPDR 6; Paul Fraser (1992) 5LPDR 12, David John Twomey (1992) 6LPDR 4; CASES CITED: Simon Konstantinidis (1993) 1LPDR 3; John Anthony Picone 1993 1LPDR 12; Kirby P in Fraser (1992) 5LPDR DATES OF HEARING: 24/02/93 - 17/03/93 DATE OF JUDGMENT: 03/17/1993 Mr L. Pierotti LEGAL REPRESENTATIVES: Mr F. Smith Miss R. MacDougall of Messrs Price Brent JUDGMENT: The Legal Profession Disciplinary Tribunal In the matter of Ellen Louise Weingarth Determination and Orders Before: Mr A.T. Martin (Chairman), Mr C.J. Robison and Mr F. Barnum. Appearances: Mr L. Pierotti instructed by Mr F. Smith for the Law Society and Miss R. MacDougall of Messrs Price Brent appeared for the Solicitor. Hearing date: 24 February 1993. This Complaint was referred to the Legal Profession Disciplinary Tribunal (the Tribunal) by the Council of the Law Society of New South Wales (the Law Society) pursuant to a resolution of the Council on 10 September 1992 that in its opinion the solicitor may be guilty of professional misconduct and that a complaint be made to the Tribunal pursuant to Section 135 of the Legal Profession Act 1987 (the Act). In its amended complaint, the Council alleged that the solicitor signed mortgage documents falsely stating that she was a witness to the mortgagors signatures on those documents and that the solicitor signed a Statutory Declaration falsely stating that such had been declared before her by her clients and falsely stating that she had witnessed the clients appending their signatures to that Declaration. The Society's evidence consisted of the following: 1. The Complaint as amended. 2. A Statutory Declaration of Frederick John Smith dated 28 September 1992. 3. A further Statutory Declaration of Frederick John Smith dated 27 January 1993. 4. A Statutory Declaration of Alina Head dated 21 January 1993. 5. A Statutory Declaration of Russell Grainger Head dated 21 January 1993. The above documents constituted the Society's evidence in the matter and by consent no witnesses were called on its behalf. The evidence of the solicitor was comprised of the following: 1. Oral evidence from the solicitor. 2. Statutory Declaration of the solicitor dated 10 February 1993. 3. Nine Statutory Declarations, namely from Maxwell Bradley Menzies dated 2 February 1993, Derek Russell Molloy dated 15 February 1993, Edward Carrington Mack dated 15 February 1993, Stephen Hugi Scarlett dated 12 February 1993, Rodney David Blackmore dated 8 February 1993 (with the exception of the last sentence in paragraph 5 of that Declaration). The uncontested background facts of the matter show that the solicitor acted for Russell Grainger Head and Alina Head in relation to two simultaneous conveyancing transactions being the sale of their residential property and the purchase of another in respect of which instructions were received in about April 1991. The solicitor conducted and continues to conduct her practice from home as a sole practitioner and these clients came to her through family connections. The solicitor was clearly under some pressure from the clients to complete both of the transactions by the scheduled date namely 6 June 1991 and indeed the matter was settled on that date. The solicitor not only had to cope with the rather extraordinary pressure being placed on her by these clients at the time but she also suffered the sudden death of her father on 16 May 1991. On 4 May and on 19 May her five year-old daughter and fourteen year-old son respectively contracted chicken pox. In addition, the solicitor was involved in her election campaign as she was a candidate for the State Government elections held in May of that year. Notwithstanding the completion of both conveyancing transactions, the clients lodged a complaint with the Society which was ultimately dismissed by the Society's Professional Conduct Committee. It appears that the nature of that complaint involved matters other than the subject of the Complaint before this Tribunal. The disclosure of the facts constituting the Complaint before this Tribunal arose from some words appearing in a letter from the solicitor to the clients dated 29 May 1991. The solicitor acted for the clients in respect to a mortgage advance in order to complete the conveyancing transaction and a letter dated 29 May 1991 addressed to the clients from the solicitor enclosed the draft Mortgage in duplicate, copy of the Memorandum referred to in the Mortgage, a Direction to Pay, Authority to Complete Blanks, a Statutory Declaration and a Schedule of Conditions. The words causing concern were: "I look forward to receiving the documents for witnessing..." This led the complainant on a course of enquiry of the solicitor for her explanation as to the circumstances of the execution and witnessing of the mortgage documents. By letter dated 16 June 1991 the solicitor responded by stating the background circumstances of the transaction. She stated that she did not recall when she signed the mortgage documents or any related documents. She said that it was her usual practice to have her clients attend her office for the purpose of explaining and executing any mortgage and she said that the letter of 29 May 1991 was not something that she has sent out on any other occasion where a document required attestation. Without reservation, she stated that it was totally wrong of her to purport to attest the signature or signatures without having been in the presence of the signing party or parties when the relevant document was signed. She treated and, from her evidence before this Tribunal, continues to treat the attesting of signatures as a serious matter. It is important to record the attestation clauses of both Mortgage documents and Statutory Declaration. The attestation clause in the Mortgage documents commenced with the words, Signed in my presence by the Mortgagor who is personally known to me. The relevant clause in the Statutory Declaration stated Subscribed and Declared at Sydney this 31 day of May 1991. The signature of the solicitor clearly appears on the Mortgage documents. Below her signature she has described herself as follows: "E.L. WEINGARTH CASTLECRAG, SOLICITOR" In the Statutory Declaration she has subscribed her signature as Louise Weingarth and below that signature the word SOLICITOR appears. During the course of her evidence, the solicitor was asked to explain to the Tribunal why she wrote the letter of 29 May 1991. She replied: "Yes, this was a couple of days after the election, I had to attend to arranging the settlement of the matter. I recall speaking to both of the clients on several occasions at this time. The husband, Mr Head, and I agreed that because the wife had problems, she had certain psychological problems, that at that stage it would be better for me not to see her physically, that it would be better for me to - if I was to see anyone it was to be him and he requested that I forward the documents down by post and that was how they came to be actually posted down to Mr & Mrs Head." The solicitor was asked if she had any view about doing that at the time in her mind and did she contemplate that it may have been inappropriate to deal with the matter in that way. The solicitor said: "I must say at that time, because I had to shelve my grief in relation to my father's death it was really only - the election was 26 May, I really collapsed in a heap on the 27th, so it was the second business day. I took the Monday off to recover from that. It was really the first business day after facing the grief over the death of my father, and getting over the exhaustion of the election. I really feel that I was quite dysfunctional at the time. I recall writing the letter, but I really don't think I applied my mind in a way that I would in normal circumstances, and therefore the letter was not the sort of letter I would normally write." The mortgage documents and Statutory Declaration eventually returned to the solicitor, duly signed by the clients but of course not witnessed. The solicitor said that she believed that she explained the mortgage documents thoroughly to both clients over the telephone but not in a personal conference. It is important to record the formal concessions made by the solicitor during the course of her evidence. The first concession was that her conduct was improper. The second concession was that her conduct was wrongful and that it, in Law, constituted fraud. Her third concession was that she understood her actions constituted professional misconduct. Her fourth concession was that her conduct was obviously reprehensible. After considering the evidence and taking into account the concessions made by the solicitor during the course of the hearing and her concessions to the Society before these proceedings were instituted, the Tribunal has no hesitation in finding that the conduct constituted all of the concessions listed above and as such, her conduct can only be classed as being dishonourable and disgraceful. The solicitor's execution of the Mortgage documents and the Statutory Declaration falsely represented that she did in fact witness the signing of the Mortgage documents by the clients and the making of the Statutory Declaration and the terms of the attestation clause in each document falsely certified as such. In her submissions, Miss MacDougall said that there was no subsequent representation with no compounding of the problem. She said that nobody sought to make any further enquiry of the solicitor so she was not therefore in a situation of compounding her misconduct. The Tribunal respectfully rejects this submission. The compounding of the problem was constituted by two stages in the transaction. The first involved the solicitor forwarding the documents to the solicitor for the mortgagee, and, secondly, the settlement taking place on the strength of those documents, so vital to a mortgagee in the protection of its interests. The clients do not dispute that they signed the Mortgage documents and the Statutory Declaration and they were not prejudiced, in a financial sense, as a result of the solicitor's misconduct. Nevertheless, this does not excuse the solicitor from the course of action she adopted. The Tribunal notes that the solicitor herself makes no excuses, but she did go into considerable detail in order to explain why she acted in this manner. The solicitor described in detail the reasons why she transgressed. She relied heavily on her problems during the course of that month of May in 1991. The Tribunal has no doubt that she experienced these problems and is comfortably satisfied that her state of mind was certainly affected thereby. The Statutory Declarations provided by way of character evidence all point to the solicitor's good character and integrity. The Tribunal has no doubt that the facts of the matter and these proceedings themselves have taken a very heavy toll on the practitioner. She does not have a large practice nor did she have a large or busy practice at the time of the events constituting the complaint. She says in her Statutory Declaration that she became involved with a Community Action Group and its activities consumed a lot of her life and her home became the office for the group. She was also heavily involved in the election campaign leading up to the State elections on 26 May, and, she was also involved in a documentary and educational video business with her husband. She was certainly under enormous pressure at the time. Her involvement in activities outside her legal practice must have had an influence upon her capacity to cope with the pressures of her practice despite its size. The Tribunal feels that perhaps, the solicitor could have reduced the pressures of outside activities by becoming less involved in them. Unfortunately, she chose not to do so. There have been a number of decisions of this Tribunal concerning the attestation of documents by solicitors, when in fact such documents were not signed in the presence of them. These cases were referred to the Tribunal in the submissions from both Miss MacDougall and Mr Pierotti. Miss MacDougall sought to distinguish this case from some of the others which, she submitted, constituted more serious conduct. The submissions in this regard were limited to penalty and she submitted that it was a matter for reprimand. The cases she referred to were: Ian Burnham Mitchell (1992) 1LPDR 6, Paul Fraser (1992) 5LPDR 12, David John Twomey (1992) 6LPDR 4, Simon Konstantinidis (1993) 1LPDR 3, John Anthony Picone 1993 1LPDR 12. The Tribunal does concede that the decisions to which Miss MacDougall referred did involve additional facts of concern and which were not repeated in this particular matter. Miss MacDougall submitted that one regrettably is sometimes driven by the need to serve one's client and sometimes does some very silly things of which this is one, but is done in the interests of the client. She emphasised that the solicitor's conduct was driven by the need to assist her clients. The Tribunal considers that at the relevant time that may well have been the case however, judging by the rather threatening terminology of a letter written to the solicitor by the clients and dated 30 May 1991 and which was attached to the Statutory Declaration of each client together with the evidence that there was a large number of telephone conversations with the clients during the transaction, the solicitor was probably driven, to a large extent, by a fear engendered by such communications. This was not stated to be the case by the solicitor in her evidence but can be readily gleaned from this correspondence and the surrounding circumstances. A picture of a sole practitioner trying to cope with all of the pressures sustained at the time has been clearly painted. The consequences of her action have obviously taken their toll on the practitioner. Findings The Tribunal finds that the particulars of the complaint have been made out and, clearly, the solicitor is guilty of professional misconduct. Mr Pierotti on behalf of the Law Society submitted that this is a matter which does not warrant a protective order and in response to Miss MacDougall's submissions concerning the availability of a reprimand he referred to the powers of the Tribunal contained in Section 163 of the Legal Profession Act 1987 and indicated that a reprimand is only available in the event of the Tribunal making a finding of unsatisfactory professional conduct. In view of the orders proposed, the need to address this particular aspect of the matter further does not arise. Another warning to the profession The Tribunal wishes to re-state what has been said in the past about false attestation of documents. The Tribunal repeats its comments as stated in the matter of Ian Burnham Mitchell 1992) 1LPDR 6 in that this Tribunal again issues a very strong warning signal to the profession generally that conduct of the nature described will be regarded most seriously and that solicitors who indulge in it must expect to suffer very serious consequences. In the matter of Simon Konstantinidis (1993) 1LPDR 3 it was said: Although it is clear that each case depends on its peculiar facts, a solicitor who does acknowledge his wrong doing is certainly part of the way towards retaining his practising certificate. In this case, the solicitor has had no hesitation in admitting her conduct and its effects. Taking into account all of the circumstances and her apparent impecunious position the Tribunal is of the view that it should go no further than is necessary to uphold proper standards and to protect the public interests (per Kirby P in Fraser (1992) 5LPDR at page 16). A fine is appropriate in a matter such as this. Orders The Tribunal therefore orders that: 1. The solicitor be fined $1,000.00. 2. The said sum to be paid within three months from the date of this order and that thereafter the solicitor be suspended from practice until the said fine be paid. 3. The solicitor pay the costs of the Society, such costs to be assessed on a solicitor and client basis as if taxed in the Supreme Court. 4. If agreement cannot be reached between the solicitor and Society as to the amount of such costs, either party to have liberty to apply. Dated this 17 day of March 1993. 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.