The Legal Services Tribunal of New South Wales CITATION : John Lyons Rigelsford [1994] NSWLST 17 PARTIES : John Lyons Rigelsford FILE NUMBER(S) : of 1993 CORAM: Ms A Plotke (Presiding Member) - Mr A. Edgar - Ms E. Dutton Professional Misconduct - prepare false documents :- SECTION 135 OF THE Legal Profession Act 1987 CATCHWORDS: Giving false certificates fraudulent and professional misconduct. LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Law Society of New South Wales LPDR 5/1992 12, the matter of Picone (LPD T 10/92) ; Konstantinidis (LPD R 1/92) DATES OF HEARING: 18 March 1994 DATE OF JUDGMENT: 06/01/1994 Mr K. Connor (instructed by Mr F. Smith) appeared on behalf of the Law Society of New South Wales. LEGAL REPRESENTATIVES: Mr C.C. Lindsay (instructed by Messrs Lloyd & Lloyd) appeared on behalf of the Solicitor. JUDGMENT: THIS COMPLAINT WAS MADE UNDER SECTION 135 OF THE Legal Profession Act 1987 ("the Act") by the Council of the Law Society of New South Wales ("the Law Society") against John Lyons Rigelsford ("the Solicitor"). The Law Society alleged that the Solicitor falsely certified to a lender that he had explained certain security documents to certain persons when he knew that he had not. In its amended complaint dated 24 September 1993 the Law Society requested the making of the following orders: (a) Such orders as to the Tribunal seem fit. (b) That John Lyons Rigelsford pay the costs of the complainant of these proceedings. The undermentioned further particulars of the complaint were attached to the amended complaint: The security documents referred to were as follows: (1) (i) A deed of guarantee and indemnity dated 2 February 1989 made between Wallace Charles Hunter, Joan Pauline Hunter, Phillip Norman Gurner and Mary Janet Gurner of the one part as the guarantors and the Primary Industry Bank of Australia Limited ("the Bank") of the other; and (ii) A mortgage dated 2 February 1989 and registered No. Y174144 made between the Bank as mortgagee, Traxlox Pty Limited as mortgagor and Wallace Charles Hunter, Joan Pauline Hunter, Phillip Norman Gurner and Mary Janet Gurner as debtors as defined in the mortgage. (2) By Requisition No. 19 in a document titled Requisitions on Title, Messrs J.R. Gibbs & Co., solicitors, on behalf of the Bank, requested that Rigelsford Jensen & Co provide certification of certain matters, the requisition being as follows: 19. We will require from you prior to completion a letter to the following effect: (a) confirming that you are instructed and employed independently of the mortgagee; (b) certifying that you have fully explained the security documents to the parties named therein (other than the mortgagee); (c) certifying that the parties named therein (other than the mortgagee) fully understood the true purport and effect of the security documents prior to their executing the same; and (d) certifying that the parties named therein (other than the mortgagee) have voluntarily executed the security documents. (3) The Solicitor replied to Requisition 19 by letter to Messrs. J.R. Gibbs & Co., signed by him and dated 31 January 1989 which letter read in part: "Re: Traxlox Pty. Limited Advance from Primary Industry Bank of Australia Limited - Property "Belahna" Further to our letter of 30 instant we enclose a certified copy of the Resolution of the Company to execute the subject security documents and reply to Requisition 19 as follows: (a) We confirm that we are instructed and employed independently of the mortgagee; (b) We hereby certify that we have explained the security documents to the mortgagor and guarantors; (c) We hereby certify that to the best of our belief the mortgagor and guarantors fully understood the true purport and effect of the security documents prior to their executing the same; and (d) We hereby certify that the mortgagor and guarantors have voluntarily executed the security document." 4. The said security documents were not explained by the Solicitor or any other representative of Rigelsford Jensen & Co. to two of the four guarantors Phillip Norman Gurner and Mary Janet Gurner. Facts The facts, which were not in dispute, were that the Solicitor met Wallace Charles Hunter and his wife Joan Pauline Hunter in about 1979. Mrs Hunter was a cousin of the Solicitor's former wife. As at mid 1988 Mr and Mrs Hunter conducted in partnership with Neville Christie of Sydney a grazing business on "Curragundi Station", Moree. Mr Hunter informed the Solicitor that the partnership was not operating satisfactorily and wished to find a new partner to acquire Mr Christie's share. In about July 1988 Mr Hunter informed the Solicitor that it had been agreed that Mr Christie would purchase the Hunters' shares in "Curragundi Station". The sale of the Hunters' shares in the station was completed. The Solicitor was not instructed to act for the Hunters in this matter. In early August 1988 the Solicitor was advised by Mr Hunter that he and his wife intended to purchase the rural property "Belahna" at Moree for $1,201,500.00. The Solicitor subsequently received a contract from the vendor's solicitor Messrs Webb & Boland and acted on the purchase. On instructions from Mr Hunter he negotiated conditions in the contract. When the Solicitor asked Mr Hunter about the source of the funds to complete the purchase he was informed that he was not to worry about that and that it had been arranged. Meetings were held with Mr Cummings, Mr Hunter's accountant, in Moree concerning the vehicle for the purchase and a shelf company Traxlox Pty Limited was acquired by Mr Cummings. Mr and Mrs Hunter became the only directors and shareholders of Traxlox Pty Limited which was to act as trustee for a unit trust the unit holders of which were to be Mr and Mrs Hunter. The Solicitor prepared a trust deed known as the "Belahna Unit Trust Deed" in which Traxlox Pty Limited was the trustee and Mr and Mrs Hunter equally owned between them all the units in the trust. The deed was executed by all the parties thereto. Contracts were exchanged for the purchase by Traxlox Pty Limited of "Belahna" on 24 August 1988 and the contract provided for completion on 11 January 1989. Time was not of the essence. Following exchange of contracts the Solicitor had telephone conversations with Mr Hunter who indicated to him that he was negotiating with the Bank for a loan. In either November or December 1988 Mr Hunter told the Solicitor that he may not need the full $800,000.00 from the Bank as Phillip Gurner had offered to lend him $300,000.00. At that time the Gurners and the Hunters were very close friends. There appears to be some conflict about when the Solicitor first met Mr and Mrs Gurner. Both Mr and Mrs Gurner state that they did not meet the Solicitor until 1990 when they met him socially. This was after completion of the purchase of "Belahna". The Solicitor stated that he believed he had met them prior to December 1988. Nothing turns on this issue and it is not necessary to decide whose version is more probable. Later in December 1988 Mr Hunter informed the Solicitor that the Gurners would be taking one-third of the units in the unit trust for $300,000.00 which meant that the loan from the Bank would now only be $500,000.00. The Solicitor was further informed that Mr Hunter would be using Cole & Butler, solicitors, to prepare the partnership documents for the partnership. The purchase was not settled on the proposed settlement date of 11 January 1989. On 17 January Mr Hunter telephoned the Solicitor to advise him that the loan of $500,000.00 had been approved by the Bank. J.R. Gibb & Co solicitors were instructed to act for the Bank and the Bank apparently informed Susan Hedges solicitor of J.R. Gibb & Co that Cole & Butler would be acting for the borrower. A copy of J.R. Gibb & Co's standard requisitions was forwarded to Cole & Butler on 13 January 1989. It was not until the Solicitor's telephone call to Miss Hedges on 17 January that she became aware that the solicitor would be acting for the borrowers in relation to the loan. A letter of offer was issued by the Bank on 4 January 1989 to Belahna Pastoral Pty Limited, (which was to be the new name of Traxlox Pty Limited), the trustee of the unit trust, offering a facility of $500,000.00 and requiring as security a first mortgage over "Belahna" and deed of guarantee by Mr and Mrs Hunter and Mr and Mrs Gurner. A subsequent letter of offer dated 18 January 1989 was forwarded and addressed to Mr and Mrs Hunter and Mr and Mrs Gurner offering the same facility referring to the security as being a registered first mortgage by Traxlox Pty Limited and without reference to any personal guarantees. Subsequently Miss Hedges received a letter from the Bank dated 20 January 1989 advising her that personal guarantees of Mr and Mrs Hunter and Mr and Mrs Gurner would be required. A copy of that letter was not sent to the Solicitor. Prior to his receipt on 20 January 1989 of a copy of the loan approval of 4 January 1989 from the Bank the Solicitor was unaware that the Gurners were in any way involved with the Bank loan. On 20 January 1989 the Solicitor received a notice to complete requiring settlement to take place by 3 February 1989. On or about 20 January 1989 the Solicitor received the mortgage and deed of guarantee from Miss Hedges. The documents as prepared showed Mr and Mrs Gurner as not only guarantors but also debtors but the Solicitor stated in his statutory declaration that he failed to observe this at the time. The Solicitor telephoned Mr Hunter and arranged to forward the documents without any covering letter to Moree through the Westpac courier service. He stated that he had previously explained to the Hunters the effect of their executing the security documents. A few days later Mr Hunter telephoned the Solicitor. According to the Solicitor a conversation took place along the following lines: Hunter: "I am with the Gurners and we are ready to sign the documents. I just wanted to make sure we are signing in the correct places". Rigelsford: "Do the Gurners understand the documents or do they want to talk to me so that I can explain them". The Solicitor said that there was then an interval and he heard Mr Hunter speak away from the phone but did not hear the conversation. Then Mr Hunter said to him: "No. They understand the documents and do not feel it is necessary to speak to you". At the time of this telephone discussion the Solicitor was unaware of the Bank's solicitor's requisition that he would be required to give a certificate as to the understanding of the Hunters and the Gurners of the security documents. The requisitions including requisition 19 as set out earlier herein were received by him by fax on 30 January 1989. On 31 January 1989 the Solicitor sent the letter of that date to Miss Hedges in which the certificate was contained as set out earlier. The purchase of "Belahna" was completed on 2 February 1989. The Solicitor's background At the time of the hearing the Solicitor was aged 42 years. He was married in 1978 and separated in 1990. He has two children both of whom reside with their mother. He was admitted as a solicitor in 1980 having undertaken the Solicitors Admission Board course and having served articles of clerkship. He was a partner in one firm or another from 1981 to 1992. He is currently employed by J.H. Healey & Co., solicitors as a consultant. The Solicitor's response Initially as appears in his letter to the Law Society of 17 June 1992, the Solicitor's response was that there was urgency in having the security documents executed, he couriered them to Mr Hunter in Moree for execution and after they arrived he spoke on the telephone with Mr Hunter who confirmed to him that the parties to the documents were present. He then clearly and fully explained the contents of the security documents to Mr Hunter who relayed the explanation to Mr and Mrs Gurner. The latter did not wish to speak to him personally as they understood and were satisfied with the contents of the documents and his explanation. He then stated in that letter: "Whilst my recollection of the events has somewhat faded, I am certain that I explained the security documents to the mortgagor and guarantors and that they understood the contents of same. The certification referred to was given by me in the sincere belief that the contents of same were true and correct." A few months later, on 20 October 1992, the Solicitor wrote a further letter to the Law Society in which he made reference to the fact that during 12 years as a solicitor he had never to his knowledge had a complaint made to the Society against him. He stated: "The complaint in question is in no way related to any matters in dispute between the parties or any claim in relation to the Deed of Guarantee complained of. It appears that my alleged misconduct, if proven, would be beneficial to Mr and Mrs Gurner in any action to have their liability under the Deed of Guarantee reduced. I feel that the complaint against me has been vindictive... I trust the Society and Professional Conduct Committee will take these matters into consideration and think seriously about such unwarranted complaints being taken by fellow practitioners purely for ulterior motives." On 19 November 1992 Messrs Lloyd & Lloyd solicitors, having been instructed to act on behalf of the Solicitor in relation to the subject matter of the complaint, wrote to the Law Society that the Solicitor had instructed them to advise it that his conduct in writing the letter dated 31 January 1989 to J.A. Gibbs & Co amounted to professional misconduct. In his Statutory Declaration dated 1 November 1993 (exhibit 1) the Solicitor in paragraph 51 resiled from the statements contained in his letter of 20 October 1992 to the Law Society. He recognised that he reacted emotionally to the allegations and wrongly attempted to divert the blame away from himself when he wrote that letter. He acknowledged in other paragraphs of that Declaration that: 1. his conduct in forwarding the letter of 31 January 1989 to Messrs J.R. Gibb & Co amounted to professional misconduct; 2. at no time did he personally explain to the Gurners either the Deed of Guarantee or the Mortgage; 3. settlement of the purchase on 2 February 1989 occurred in circumstances where the Bank and its solicitors relied on the truth of the certificate contained in his letter of 31 January 1989; 4. he accepts without qualification that his conduct in providing the certificate to the Bank's solicitors was grossly improper amounting to a fraud on the Bank and in breach of his obligations to the Gurners; 5. he should not have provided any certificate as given by him without personally and in detail having explained the security documents to the Gurners; and 6. there is no excuse for his misconduct which he now appreciates amounts to fraud. In that Declaration the Solicitor further stated by way of explanation only of his false certification that at the time he believed that Mr and Mrs Gurner did understand the nature of the documents which they were signing and the effect of signing the documents as guarantors, that he foolishly and improperly relied on Mr Hunter's assurance that they did have that understanding, and that he foolishly took some comfort from the fact that other solicitors and accountants were acting for both the Hunters and the Gurners in respect of their financial arrangements. Mr Hunter supported the Solicitor's claim relating to the Gurners in the following statements contained in Mr Hunter's Declaration (exhibit F): "During the course of at least one conversation with Mr Rigelsford, I relayed advice given to me by Mr Rigelsford to other members of the partnership and informed Mr Rigelsford I was doing this. I do not recall whether or not this conversation related to all the loan documentation. I also do not recall whether or not my wife and Mrs Gurner were present, or when they were present, whether they were attending to the business discussion... Mr Rigelsford did offer to speak with Mr and Mrs Gurner in relation to the loan documentation. I told him they were satisfied and required no further explanation. To the best of my knowledge Mr Rigelsford never spoke directly to Mr and Mrs Gurner in relation to the transaction." The Solicitor was questioned by the Tribunal about the circumstances surrounding his signing of the certificate. The following exchange took place at page 9 of the Transcript: The Chairman: When you signed that letter of 31 January 1989 which stated: "We hereby certify that we have explained the security documents to the mortgagor and guarantors", did you read that paragraph before you signed the letter? - I did, yes. How could you certify that you had explained something to somebody to whom you had not spoken? - At the time I thought that they did understand it. But that's not what the certificate says? - I know and I made a mistake. I didn't put my mind to the true force of the certificate. You knew the certificate was important - Yes, I did. Are you saying you didn't read it adequately? - I didn't read it adequately, no, I admit that. Because the terms of that, it was only two lines, "We have explained the security documents to the mortgagor and guarantor". I mean, if you hadn't spoken to them, no matter what your belief was about what they knew or didn't know, you were only asked to certify that you had done something, namely explained it. What do you say about that? - At the time I didn't really put my mind to what that meant, explaining, but now I realise I made a mistake and it's not sufficient." It is clear from the above evidence and the Solicitor's initial response to the subject of the complaint that he did not at the time when he gave the false certificate appreciate the significance of what he was doing or the seriousness of it. By the time he made his Statutory Declaration he had had the benefit of legal advice, had read the judgments of the Disciplinary Tribunal and the Court of Appeal in the cases of Demetrios, Fraser, Twomey, Picone, Konstantinidis, Burnham Mitchell and Weingarth and had come to understand his grave error. He consequently accepted without qualification that his conduct in providing the certificate to the Bank's solicitors was grossly improper amounting to a fraud on the Bank and in breach of his obligations to the Gurners. He said in his Statutory Declaration (exhibit 1 paragraph 53): "...there is no excuse for my misconduct which I now appreciate amounts to fraud. I did not on 31 January 1984 address the importance of the certificate. I am truly remorseful and contrite as to my misconduct which has been and will be a source of great embarrassment and disquiet to me. I have been embarrassed in informing my professional peers of this complaint. I regard the practice of law as a very honourable profession and I have been proud to be a member of the profession. I will not offend again." Character references Twenty-five Declarations in support of the Solicitor were tendered. Some 20 of the declarations were solicitors of between 15 and 41 years' standing. Most had known the Solicitor for periods in excess of 10 years and two were barristers who had known him in excess of 20 years. His peers, all of whom were informed of the complaint, speak highly of his good repute and character and express the view that the misconduct was an aberration and will not be repeated. Among them are former partners, employers and professional colleagues and they provide a solid body of opinion that notwithstanding the very serious allegations which have been made against him the Solicitor is an honourable person who is fit to continue to practise as a Solicitor. Submissions Counsel for The Law Society submitted that the professional misconduct of the Solicitor established by the evidence was conduct requiring the imposition of a substantial fine but not the removal of the Solicitor's name from the Roll. The fine should mark the Tribunal's strong disapproval of the Solicitor's conduct and protect the public interest generally. It should demonstrate widely the proper standards required of a solicitor. He referred the Tribunal to the decision of the Court of Appeal in Fraser v The Council of the Law Society of New South Wales LPDR 5/1992 12, the matter of Picone (LPD T 10/92) and the case of Konstantinidis (LPD T 1/92). He also sought an Order that the Solicitor pay the costs of the Law Society on a solicitor and client basis. Counsel for the Solicitor conceded that the proper Order would involve a finding of professional misconduct and that it would be appropriate that there be a reprimand and/or a fine and an Order for costs. He submitted expressly that the Tribunal has power to make a reprimand notwithstanding that there is a finding of professional misconduct because in Section 163 of the Act it is not mandatory for any one of the forms of Order referred to in sub-section 1 to be made. The Tribunal does not make any specific ruling on this issue as the Tribunal is of the view that a reprimand is not appropriate in this matter. The cases referred to in addition to those mentioned by Counsel for the Law Society were the matter of Weingarth LPDR 2/93 and the matter of Twomey LPDR 6/92. The upper limit of any fine which might be considered appropriate was submitted to be of the order of $7,000.00 being the amount imposed by the Court of Appeal in Fraser's case. In the matter of Twomey and in other cases there was a fine of $4,000.00 and in the matter of Weingarth a fine of $1,000.00. The quantum of the fine will depend on the particulars in each case. Determination The Tribunal finds that the conduct of the Solicitor as alleged in the complaint and the particulars has been established. There is no question that the giving by a solicitor of a false certificate is conduct "which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency" as enunciated in Allinson v General Council of Medical Education and Registration 1894 1QB 750 and which constitutes Common Law Professional Misconduct. The Solicitor has admitted that his conduct falls within this category. Accordingly the Tribunal finds that the Solicitor is guilty of Professional Misconduct. It then remains to determine what the appropriate Order is to be made in all the circumstances of this matter. At the time of the giving of the certificate the Solicitor did not recognise that he was acting in breach of his professional obligations nor that his act was dishonest and fraudulent. In the case of Fraser v The Council of the Law Society of New South Wales supra the solicitor was asked to provide a certificate of explanation in conjunction with the execution of a mortgage. The purpose of the certificate was to provide independent advice to the Livingstones, the mortgagors. The certificate was needed urgently and the solicitor was informed that the mortgagors had already been given an explanation of the mortgage by a non-practising barrister. The mortgagors were hard to contact. The solicitor agreed to sign the certificate of explanation to the effect that he had explained the mortgage documents and memorandum to the Livingstones. The certificate was false. The solicitor had never spoken to the Livingstones in person or by telephone and signed the certificate although he had not himself fully informed them of their rights and obligations under the mortgage. The Tribunal in that case found that the solicitor had voluntarily given a false certificate knowing that it would be relied upon. He had then compounded this error when, in two telephone conversations with a fellow practitioner who asked him whether he had in fact explained the mortgage documents personally or by telephone, he was evasive and failed to correct the situation. The Tribunal ordered that his name be removed from the Roll of Solicitors. In the proceedings before the Court of Appeal the solicitor acknowledged his misconduct. He offered a number of explanations and excuses for his conduct. Handley JA took the view that these tend to demonstrate that he had failed to fully understand the nature of his wrong doing. At page 17 Handley JA said: "For example, the appellant thought that because he had been told that a Mr McConnell, a non-practising barrister, had earlier given a similar certificate, and that barrister was known to him to be "a very reliable methodical person" who would have thoroughly explained the mortgage documents to the Livingstones, it was somehow in order for him to give the false certificate... The appellant also thought that because the certificate was required urgently in order to complete a conveyancing transaction being handled by the Property Transfer Company on behalf of the Livingstones this somehow made the giving of a false certificate less reprehensible. Again this is not so. There are no excuses for fraud and the attempt by the solicitor to offer excuses served only to indicate what in my opinion was an entirely unsatisfactory approach on his part to the high standards of personal honour and integrity which were called for by his membership of an honourable profession. The appellant also failed to recognise until very late in his evidence before this Court that his conduct had been fraudulent." In determining what disciplinary action against the Solicitor was warranted in the light of his proved misconduct the Court of Appeal quoted with approval the test as formulated by Lopes LJ in In Re Weare (1893) 2 QB 439 at 448: "...the question which the court...ought always to put to itself is this, is the court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor." His Honour then referred to the well established principle that the jurisdiction of the Disciplinary Tribunal and of the Court in matters of this kind is protective and not punitive. Specific reference was made by Handley JA that the fitness of the solicitor in that case to be restored to the Roll of Solicitors depended on the Court being satisfied that he fully understood his past error. In his opinion the Tribunal acted correctly on the material before it in striking the solicitor from the Roll. He said at page 18: "A solicitor who commits fraud without knowing that he has done so in my opinion is not a fit and proper person to remain on the Roll. That situation has now changed". The Court of Appeal set aside the Order of the Tribunal and imposed a fine of $7,000.00. In the case of Konstantinidis (LPD R 1/92) heard 17 August 1992 the solicitor signed as witness certain documents including a mortgage and a Deed of Guarantee and Indemnity when the solicitor had not in fact witnessed the signing of the documents by the persons concerned. He executed the "solicitor's certificate" in circumstances where he had not explained to the mortgagor and the guarantor the nature of the contents of the mortgage and the Deed of Guarantee and Indemnity. In addition the solicitor in that certificate confirmed that the Deed of Guarantee and indemnity had been executed by the guarantor prior to the mortgage being executed by her husband when he was not aware that that was in fact the case. The Tribunal found that the solicitor had committed common law fraud and was guilty of professional misconduct. It imposed a fine of $4,000.00. In the matter of Picone (LPD T 10/92) the solicitor purported to witness the signatures of persons when he was not present at the time when the signatures were ascribed to a document "consent of guarantors" and he gave a certificate to the Advance Bank stating that he had explained the effect of that document to all four guarantors when he had not done so. The solicitor admitted that is conduct was improper and fraudulent and amounted to professional misconduct. The Tribunal imposed a fine of $5,000.00 on the solicitor. The Tribunal in the present matter has carefully considered the authorities and the principles applicable to the conduct of the Solicitor. In deciding on the appropriate order it has taken account of the following: 1. The fraudulent conduct of the solicitor is a very serious offence. 2. The Tribunal has an obligation to uphold the high standards which must be observed by solicitors as members of an honourable profession and to ensure in the public interest that solicitors are deterred from departing from these standards. 3. The Solicitor has come to a full recognition of the true nature of giving the false certification and the seriousness of his misconduct. 4. He has declared his remorse and contrition to the Tribunal and his peers and the Tribunal believe that he will not repeat his misconduct. He has had no other complaint made against him since his admission in 1980. 5. A substantial number of his peers have expressed confidence in his fitness to continue practising as a solicitor notwithstanding his misconduct and have spoken of the high regard in which he is held amongst his peers in the community generally. 6. The act complained of is a single aberration. The Tribunal consequently considers the Solicitor's fitness to practice is not in question. However because of the seriousness of the misconduct the Tribunal does not consider that a reprimand is appropriate. The protective and deterrent elements of the function of the Tribunal call for a fine to mark its strong disapproval of the conduct of the Solicitor and in all the circumstances the sum of $4,000.00 is appropriate. Order The Tribunal therefore Orders: 1. That the Solicitor pay a fine of $4,000.00 within a period of 30 days from the date of this Order. 2. The Solicitor be suspended from practice at the expiration of the said period of 30 days if the said fine shall not have been paid until it has been paid. 3. The Solicitor pay the costs of the Law Society such costs to be assessed on a solicitor/client basis as if taxed in the Supreme Court. 4. If an agreement cannot be reached between the Solicitor and the Law Society as to the amount of such costs either party shall have liberty to apply. 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