The Legal Services Tribunal of New South Wales CITATION : Adrian Frederick Guido [1996] NSWLST 5 PARTIES : Adrian Frederick Guido FILE NUMBER(S) : of 1995 CORAM: Mr G Molloy (Chairperson) - - Ms E. Dutton CATCHWORDS: Professional Misconduct - forgery :- Solicitor found to have written another person's signature on a Transfer professional misconduct. LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: DATES OF HEARING: EX TEMPORE 07/30/1996 JUDGMENT DATE : LEGAL REPRESENTATIVES: JUDGMENT: Chairman: By Amended Information filed in this Tribunal on 26 April 1996, the Law Society has alleged that the solicitor forged the signature of a company director on a form of transfer of land. The facts are not in dispute. The solicitor, who has been in practice since 14 March 1975, in company with members of the family, acquired a shelf company (Hefore Pty Ltd), in about September 1977. At all relevant times the shareholders were the solicitor (as to two ordinary shares), and his wife, Francesca Guido (as to one ordinary share), and Mrs Guido was the company secretary. Both the solicitor and his wife were the company directors, however as a matter of practice the solicitor administered the affairs of the company on a day-to-day basis. The company was the trustee of a family trust pursuant to a deed dated 5 February 1979. At about May 1979 the company, as trustee, purchased certain property at Meadowbank. In 1985 the company sold that property. The solicitor acted for the company as vendor on the sale. As part of a conveyancing transaction, the company executed, under seal, a Memorandum of Transfer, subsequently dated 12 April 1985 and subsequently registered. The signatories to the affixation of the company seal were the solicitor, as a director, and Mrs Guido as company secretary. The position is that the signature of Mrs Guido was, in fact, written by the solicitor. It appears that contracts were exchanged and that approaching completion the purchasers sought to postpone completion. The company, through the solicitor, issued and served a notice to complete. On the day of expiry of that notice to complete, the purchaser's solicitors advised the solicitor that the purchaser would be able to complete the contract on that day. It further appears that the solicitor then realised that he overlooked obtaining the signature of Mrs Guido as the company secretary on the Memorandum of Transfer. The solicitor then telephone his wife and explained what had occurred and that his work commitments precluded him leaving his office to obtain her signature. Mrs Guido, in turn, was apparently unable to attend the office. Mrs Guido agreed and consented to her husband, the solicitor, signing her name on the Transfer, in the words of the solicitor, In order to enable the vendor company to complete the contract and not to expose the vendor to the possibility that the purchaser might terminate the contract absent completion that day." It further appears that Mrs Guido is a legally qualified person, who was involved with the affairs of the vendor company and she has at no time purported to challenge the sale in general or the effect of the Memorandum of Transfer. It further appears that Mrs Guido actually signed the contract as company secretary. The solicitor has accepted that he should not have signed his wife's name on the Transfer even if she had authorised him to do so. He believed that he had her authority to sign her name. He believed that there were no difficulty about it, because at that time they were happily married, that she had signed the sale contract and that to all intents and purposes she was happy with the sale transaction. There is no requirement to review at length the law pertaining to this type of professional conduct. It is plain that the writing of another person's signature by a legal practitioner is professional misconduct. There was no debate at the hearing before us on this principle, as indeed there could not be. The real question before us is what orders this Tribunal should make, having regard to such a finding of professional misconduct. This solicitor has been in practice since 1975. There are no antecedents and he comes to us as a person of otherwise unsullied reputation. There is no evidence before us that he stood to gain any personal advantage by signing a signature purporting to be that of his wife. The evidence shows that it was simply a matter of convenience. We find it difficult to believe, however, that neither the solicitor nor his wife could find the time on a matter of this importance to arrange for proper execution of the Transfer. It must have been that both the solicitor and his wife, both being legally qualified, would each have been aware of the importance of ensuring that the common seal of the vendor company was properly affixed. Grave consequences may flow from the improper affixation of a common seal and grave consequences may flow from the writing of another person's signature on a document. Both of these matters should have been at the forefront of the mind of both the solicitor and his wife. The Law Society has sought an order that the solicitor be reprimanded and pay its costs. We have no difficulty with the latter, but we do have difficulty with simply reprimanding a solicitor, even in these unusual circumstances. It seems to us that a little more is required, if for no other reason than to indicate, not only to the solicitor, but also to the profession, that the making of false documentation is simply an act to be deplored from a professional point of view. However, we do bear in mind that this solicitor has been in practice for many years, is a well known and respected solicitor and otherwise has not come to notice in a professional capacity. The imposition of a modest fine, in addition to a reprimand, we believe is a more appropriate response. There was considerable debate before us on the question of whether, in the circumstances of this case, it was proper to plead Forgery". Forgery in the criminal sense of the word includes in its definition an intent to defraud. There was no intent to defraud in this case. Perhaps the word was used in a less strict sense but in our view it may have been preferable to have pleaded that the solicitor made a false instrument by signing on the Transfer his wife's name in the form of a signature purporting to be hers. Finally, we observe that the amended Information included a claim for compensation by Mrs Guido. We are informed that she has been notified of today's nearing and has advised that she has chosen not to attend. In those circumstances we formally dismiss the claim for compensation. The Tribunal makes the following orders: 1. The solicitor be and is hereby reprimanded. 2. The solicitor pay a fine of $2,000 within a period of four months from the date of this order. 3. The solicitor be suspended from practice at the expiration of the said period of four months if the said fine has not been paid and that such suspension continue until the said fine has been paid. 4. The solicitor pay the costs of the Law Society as agreed or, in default of agreement, to be assessed. 5. Liberty to apply to either party if the parties are unable to agree upon the quantum of costs to be paid. 6. The claim for compensation is dismissed. 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.