Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Ge [2016] NSWCATOD 25 Hearing dates: 25 January 2016 Date of orders: 29 February 2016 Decision date: 29 February 2016 Jurisdiction: Occupational Division Before: Cowdroy ADCJ, Principal Member S Hale, Senior Member E Hayes, General Member Decision: (1) A declaration that Chris Chen Yung Ge is guilty of professional misconduct in respect of each of the five grounds raised in the Application for Disciplinary Findings and Orders. (2) That Chris Chen Yung Ge be disqualified from holding any practising certificate for a period of two years commencing on 22 February 2016. (3) That from 22 February 2018, any practising certificate be endorsed with the condition that for the period of three years from 22 February 2018 or from the date when any application is made for such a certificate Chris Chen Yung Ge only practise as an employee of a solicitor holding an unrestricted practising certificate. (4) That Chris Chen Yung Ge pay the Commissioner's costs of and incidental to these proceedings as agreed or assessed. Catchwords: Solicitor - disciplinary proceedings - professional misconduct - disqualification - altering academic transcripts - order for costs Legislation Cited: Legal Profession Act 2004 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Legal Services Board v McGrath (2010) VSC 266 Legal Services Commissioner v Grosser (Legal Practice) [2014] VCAT 1533 Legal Services Commissioner v PFM (Legal Practice) 2013 VCAT 827. Legal Ombudsman v Skrekas [2004] VLPT18 Legal Services Commissioner v Spicehandler (Legal Practice) 2012 VCAT 630 Prothonotory of the Supreme Court of New South Wales v Hendrick Jan Van Es (unreported) 201 3/194440, 5 June 2014) Re Davis (1947) 75 CLR 409; [1947] HCA 53 Smith v The New South Wales Bar Association (1992) 176 CLR Southern Law Society of Tasmania v Westbrook (1910) 10 CLR 609 The Council of the Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Walker v The Council of Queensland Law Society Inc (1988) 62 ALJR 153 Webb v New South Wales Bar Association (1992) 176 CLR 239 Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) Chris Cheng Yun Ge (Respondent) Representation: Solicitors: Legal Services Commissioner (Applicant) Bourke & Bourke Solicitors and Attorneys (Respondent) File Number(s): 1520174 Reasons for Decision 1. The applicant ("the Commissioner") seeks various orders against the respondent (Mr Ge) including declarations that Mr Ge is guilty of professional misconduct; that his name be removed from the roll of lawyers and for ancillary relief. The conduct complained of and relied upon by the Commissioner arises from the falsification of an academic transcript and false statements appearing in a curriculum vitae ("CV") which was used by Mr Ge to obtain employment as a paralegal and ultimately as a solicitor. 2. The Commissioner was appointed pursuant to s686 of the Legal Profession Act 2004 (NSW) ("the LPA"), which is now repealed, and of s22 of the Legal Profession Uniform Law Application Act 2014 (NSW) ("the LPULA Act"). 3. Mr Ge is an Australian legal practitioner to whom Chapter 4 of the LPA and Chapter 5 of the LPULA Act applies. The application 1. The application for disciplinary findings and orders contains five separate grounds which can be summarised as follows: Ground 1: In or about February 2015 Mr Ge forwarded to a legal recruitment firm known as Taylor Root his CV which was to his knowledge false and misleading in material particulars and was intended to mislead, together with a transcript of his academic record which was also to his knowledge false and misleading was intended to mislead 1. In summary, the particulars relied upon the CV stated that Mr Ge had a "distinction average LLB" when that statement was false. Further, the academic transcript which accompanied the CV was falsified. The academic record gave details of the legal courses undertaken by the defendant from semester 1 of 2008 to semester 2 of 2012. Twentyone of the entries altered in accordance with a copy of the schedule annexed to this decision and marked "A", which has been prepared by the Commissioner to record the correct marks awarded to Mr Ge and the falsified marks. In most cases false entries recorded distinction passes when in fact Mr Ge had been awarded only a pass or on six occasions, a credit for that course. Ground 2: On 12 March 2012 Mr Ge, in seeking employment with Gilbert + Tobin, solicitors, forwarded Mr Danny Gilbert a CV which to his knowledge was false and misleading and intended to mislead and subsequently provided the Human Resources Department of Gilbert + Tobin, a transcript of the academic record which to his knowledge was false and misleading in material particulars and was intended to mislead. 1. In summary, the particulars refer to the following: The CV stated: "Bachelor of Commerce (Finance) Credit/Distinction Bachelor of Laws Credit/Distinction" 1. In fact Mr Ge had not been awarded a credit/distinction for either degree. 2. The academic transcript provided contained the first sixteen of the entries referred to in Annexure "A" hereto. Ground 3: On 9 April 2013 Mr Ge sent an email and CV to Adam Stapledon of Allen & Overy (Sydney Office) which to his knowledge was false and misleading in material particulars and intended to mislead. 1. Particulars allege that the email referred to contained the following false statement: "My passion in law is also refected in my high grades (with sixteen Distinctions in law subjects)". 1. Further, the CV stated "Bachelor of Commerce (Finance) Distinction/Credit Bachelor of Laws Distinction/Credit" 1. In fact no distinctions or credits had been awarded for either degrees. Mr Ge was awarded three distinctions for some individual subjects, as shown on Annexure "A" hereto. Ground 4: In early 2015 the solicitor provided to Corrs Chambers Westgarth an academic transcript which was to Mr Ge's knowledge false and misleading in material particulars and intended to mislead". 1. Particulars allege that the academic transcript was falsified. The transcript is the same as that referred to in Schedule "A" hereto. Ground 5: On 16 February 2015 Mr Ge provided to Allens Linklaters academic transcript which was to his knowledge false and misleading in material particulars and intended to mislead". 1. The particulars allege that on 7 February Mr Ge emailed to partners of Allens stating that he was employed in the Sydney Office of Allen & Overy and expressed interest in working in the banking and finance division; that on 12 February 2015 the National Resourcing Manager at Allens Ms Tiffany Rogers requested that Mr Ge provide an academic transcript; that Mr Ge provided a copy of his falsified academic transcript, a copy of which is the same as that set out in Schedule "A" hereto. Discovery of offences 1. By letter dated 28 May 2015 Mr Jim Dwyer, general counsel of Allens Linklaters notified the office of the Legal Services Commissioner of a discrepancy which had been observed by that firm in relation to Mr Ge's application for a position as a lawyer. The discrepancy was discovered in comparing the application Mr Ge had submitted for the position in Allens summer clerk programme for 2010/11 compared to the application he provided, on 16 February 2015. 2. The Commissioner, by letter dated 2 June 2015 wrote to Mr Ge requesting an explanation and submissions pursuant to s509 of the LPA. Further, by 22 June 2015 the Commissioner had received from the University of New South Wales a copy of his official academic transcript. This was provided by the Commissioner to Mr Ge and an explanation was sought for the discrepancies. The discrepancies are those tabulated in Schedule "A" attached to his Decision. 3. By letter dated 9 July 2015 Messrs Bourke & Bourke, solicitors responded to the Commissioner, advising that they acted for Mr Ge. Significantly, Mr Ge admitted that he sought to mislead Allens Linklaters by submitting the academic transcript of the University of New South Wales which had been altered to embellish his academic results. 4. Further, Mr Ge made full disclosure of the fact that he had misled his then employer, Corrs Chambers Westgarth. Enclosed with Messrs Bourke & Bourke's letter was a statement by Mr Ge which acknowledged, in detail, his alteration of the academic transcript provided to Allens Linklaters, forwarding the altered academic transcript to Taylor Root which led to his employment at Corrs Chambers Westgarth and made in addition full disclosure of the fact that he had also forwarded his fraudulent transcript to Gilbert + Tobin. . As a result he obtained employment as a paralegal between July 2012 and May 2013 with that firm. 5. Mr Ge also disclosed that he sent his false transcript to Allen & Overy and as a result he obtained a graduate position as a paralegal at that firm commencing in May 2013 to March 2015. 6. The Commissioner, by letter dated 11 July 2015 notified Messrs Bourke & Bourke that he had made a preliminary view that Mr Ge's conduct would amount to professional misconduct if referred to the Occupational Division of the New South Wales Civil and Administrative Tribunal ("NCAT") pursuant to s537(1)(a) of the LPA in respect of both Mr Dwyer's complaint and pursuant to s300(1)(b) of the LPULA Act. A copy of the Commissioner's Record of Decision made pursuant to s537(2) of the LPA was enclosed. The Commissioner, pursuant to such sub-section brings these proceedings to NCAT by virtue of his Application for Disciplinary Finding, and Orders filed on 4 September 2015. 7. Mr Ge was admitted as a Lawyer of the Supreme Court of New South Wales on 6 December 2013. On 29 December 2014 Mr Ge was issued with a practising certificate and shortly thereafter, namely in February 2015 Mr Ge provided the false academic transcript to Corrs Chambers Westgarth. As a consequence Mr Ge was engaged by Corrs Chambers Westgarth as a solicitor, commencing on 16 March 2015 in the employ of that firm. 8. As a result not only of Mr Dwyer's letter to the Commissioner made on 28 May 2015 but as a result of the disclosures made by Mr Ge in his statement, five grounds relied upon by the Commissioner have been brought before the Tribunal. 9. It should be observed that when Mr Ge became aware that his fraudulent conduct had been discovered, he promptly informed Corrs Chambers Westgarth and apologised in person and in writing to his supervising partner at that firm, namely Mr Alex Regan. Mr Ge was offered the alternative of resigning from the firm or being terminated and he chose the former option. 10. Mr Ge also apologised to Gilbert + Tobin and to Allen & Overy for his misconduct. 11. It should also be observed that Mr Ge, by his statement dated 9 July 2015 readily admitted to his wrongdoing in respect of each of the grounds relied upon in the Commissioner's application. Accordingly there is no contest to the facts and circumstances relied upon by the Commissioner which are not in dispute. Mr Ge's explanation 1. Mr Ge provides as his explanation for his conduct, his pride and ambition. He states that he always dreamed of becoming a successful corporate lawyer. Mr Ge was born in China and came to Australia when he was 12 years old. He completed his schooling at Randwick Boys High School and then entered into the Bachelor of Combined Law and Commerce degree at University of New South Wales in 2008. His father had qualified as an engineer in China but in Australia was only able to undertake manual labouring work. His parents separated when Mr Ge was seven years old and he was effectively raised by his father. His father had high expectations of his son. Mr Ge states that, in summary, he wished to show his parents, particularly his father that he could be a successful person and therefore chose to take the risk of altering his academic transcript with the hope that he would secure a better legal job. He says his judgment at the time "was clouded by my emotion". 2. Mr Ge states that he had forwarded his genuine transcript to various firms seeking positions but was unsuccessful. It was for this reason that he decided that by altering his transcript he considered his chances of obtaining employment would increase. He states that he was under "immense emotional pressure to further progress my legal career". Mr Ge's evidence 1. Mr Ge has provided the Tribunal with an affidavit of Dr Ian Melvin Chung affirmed on 9 November 2015. Dr Chung holds a Bachelor of Medicine, Bachelor of Surgery and Master of Psychiatry. He stresses however that he is not a psychiatrist. 2. Dr Chung was asked to provide a report and to comment upon the following matters: 1. Whether Mr Ge's conduct was explained by or contributed to by any psychiatric illness condition; 2. Whether such conduct was likely to recur; 3. Mr Ge's insight into the seriousness of his conduct including remorse. 1. Dr Chung first saw Mr Ge on 18 June 2015 when he obtained the necessary history. In answer to questions asked of him Dr Chung as follows: 1. Mr Ge was not suffering from any clinical depression nor with any diagnosable mental illness. 2. Dr Chung was unable to express an opinion whether Mr Ge was liable to repeat his conduct. 3. Dr Chung considered that Mr Ge did understand the seriousness of his conduct. 1. Thereafter in a second report dated 22 October 2015 Dr Chung reported he had been consulted on 23 July 2015, 14 August 2015, 18 September 2015 and 16 October 2015. 2. In summary Dr Chung said that so far as the first issue was concerned referred to above, his opinion was little changed. He considered that Mr Ge was under family and cultural pressures and the pressures of competition which played "a big part in moulding the attitudes and conduct of Law students like Mr Ge". 3. Acknowledged that Mr Ge now had a greater understanding of the "duties and responsibilities of a legal practitioner". He was also aware of the seriousness of his conduct. 4. Mr Indraveer Chatterjee, solicitor, provided an affidavit which confirmed that he was the principal solicitor of the HIV/Aids Legal Centre Incorporated [NSW]. He states that on 25 June 2015 Mr Ge attended for an interview for a position, working pro bono, with such Centre. Mr Ge commenced work on 6 July 2015 for a three month period. Mr Chatterjee found Mr Ge to be open, honest and courteous and made a full disclosure to him of the actions taken by the Commissioner. 5. Kathryn Ruth Anderson was a solicitor who supervised Mr Ge whilst he worked at Corrs Chambers Westgarth. Ms Anderson found that whilst Mr Ge did not have a wealth of experience in banking and finance he raised numerous issues which demonstrated to her that he wished to do well. She thought he displayed an "admirable approach to his professional development". Ms Anderson also states that she would have no hesitation in working with Mr Ge again. 6. John Tomaras, Australian Lawyer has provided an affidavit which relates to period of employment that he gave to Mr Ge as a paralegal commencing in late 2009 for approximately 12 months. Mr Tomaras states that he found Mr Ge to be diligent, and capable as a paralegal and had no concerns for his honesty or integrity. Mr Tomaras also states that in December 2015 he met Mr Ge who revealed his conduct which is the subject of these proceedings. Mr Tomaras expressed the opinion that it was "highly unlikely" that Mr Ge would fail to act in accordance with the high standards expected of legal practitioners in the future. The hearing 1. At the hearing of the proceedings on 25 January 2016 Mr Ge was subjected to extensive cross examination. Such cross examination revealed that Mr Ge had significantly embellished the CV which he had provided for distribution to legal practitioners through the firm of Taylor Root in such a way that it gave the wrongful impression that his experience was far deeper and broader than was the case. In explaining his work experience in the CV he did not reveal that much of his work was done purely as a paralegal and that the duties which he performed were of a relatively minor, virtually clerical, nature. Mr Ge acknowledged that his CV was portrayed in such a way as to potentially mislead any reader of the CV by creating a false impression that his experience was extensive. Further, it was his intention that it should so mislead. 2. Cross examination was also made of his statement. In the course of his statement Mr Ge tended to retreat from his frank admissions by expressions such as "Due to a momentary lapse of mind, in early 2015 I regrettably once again provided altered academic records to Corrs and Allens Linklaters in the hope that this would give me a better chance of securing a solicitor role". In fact as Mr Ge acknowledged there was no "momentary lapse of mind", rather his conduct was a deliberate deception. 3. Mr Ge also said in his statement that he neglected his academic studies because of his focus "on getting practical experience". When it was pointed out to him that he was not working in 2008 and 2009 and his marks were not outstanding, he acknowledged that the object of obtaining practical experience was irrelevant to the marks which were awarded to him. 4. The above cross examination of Mr Ge in relation to his statement is not the subject of any complaints. However they do reveal a disquieting trend on the part of Mr Ge to deceive, and to embellish events so as to portray a false picture of his legal experience and to knowingly mislead. Further his deliberate untruth continued in his CV that he was awarded 16 distinctions in his law subjects, when he only received three distinctions, shows a ready capacity to deceive. Orders sought by Mr Ge 1. Mr Ge, has stated in his Reply to Application for Disciplinary Findings that he does not oppose a finding that he is guilty of professional misconduct, that he be publicly reprimanded; and that he pay the costs. Mr Ge opposes the application for an order that his name be removed from the roll of lawyers. 2. The Tribunal has been provided by Mr Bourke, who appeared for Mr Ge, with voluminous authorities upon the relevant conduct including Legal Services Board v McGrath (2010) VSC 266 per Warren CJ at [9]; Southern Law Society of Tasmania v Westbrook (1910) 10 CLR 609; Walker v The Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157E; Smith v The New South Wales Bar Association (1992) 176 CLR 256 of 270 per Deane J; Webb v New South Wales Bar Association (1992) 176 CLR 239 at 251; The Council of the Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 per Mahoney JA. 3. The Commissioner has referred this Court to the established authority of Re Davis [1947] HCA 53; (1947) 75 CLR 409, as adopted recently in Prothonotory of the Supreme Court of New South Wales v Hendrick Jan Van Es (unreported) 201 3/194440, 5 June 2014); Legal Services Commissioner v Spicehandler (Legal Practice) 2012 VCAT 630; Legal Ombudsman v Skrekas [2004] VLPT18; Legal Services Commissioner v Grosser (Legal Practice) [2014] VCAT 1533; Legal Services Commissioner v PFM (Legal Practice) 2013 VCAT 827. 4. Arising from the Commissioner's authorities, it is apparent that the preponderance indicate that where an admission board or court have been misled by the lawyer, this is sufficient ground for disbarring a practitioner and removing his name from the roll: see Davis per Starke J. Such principle was followed in Van Es by the New South Wales Court of Appeal where the Court found that Mr Van Es, whilst taking an ethic exam had engaged in cheating. Mr Van Es "did not tell the whole truth; in fact he actively and repeatedly sought to conceal the truth by telling lies". Such conduct was sufficient to warrant removal from the roll. 5. In Spicehandler the lawyer had provided numerous false statements concerning his prior employment. This was found sufficient to warrant an order of a suspension of five years. 6. In Skrekas the lawyer had provided a false transcript and legal resume to a legal recruiter knowing them to be false. The Tribunal observed that there was "no suggestion that such disgraceful conduct was a momentary lapse". It was reflected in a continuous pattern of deceit, and involved forgery". The practitioner's name was removed from the roll of practitioners. 7. The same observation may be made of the conduct of Mr Ge and also of the period over which the offending conduct took place. 8. In Grosser the practitioner dishonestly made numerous false claims over a two year period, claiming academic qualifications and results he did not achieve, making false claims to the extent of his work experience as a lawyer and the positions he had held and providing a false reference. This conduct was found sufficient to warrant removal from the roll. 9. In PFM the practitioner forged a transcript of his academic results for the period 2006 to 2009 to bolster four applications made for employment, two of which were successful. The Tribunal found that in each case the conduct which he admitted to resulted in a finding that he was not a fit and proper person to be a legal practitioner. In particular, the Tribunal observed that his conduct of relying upon a forged transcript and misrepresentations as to the marks he achieved continued over a period of years; they comprised systematic dishonesty rather than a momentary or aberrant lapse and that the conduct was engaged in to obtain a personal benefit, namely obtaining employment by deception. Submissions 1. The Tribunal has had the benefit of both oral and written submissions from each party. We have taken those submissions into consideration in reaching our decision below. Findings 1. The conduct of Mr Ge was disgraceful and dishonourable. It was contrived specifically for the purpose of obtaining a self-advantage. His conduct achieved that purpose since he obtained positions both as a paralegal at Allen & Overy and at Gilbert + Tobin and also as a solicitor in the employ of Corrs Chambers Westgarth. Had the true facts been known it is most unlikely that such firms would have offered employment to Mr Ge. 2. The manner in which the deception was carried out is also troubling. It was not only the alteration of marks in the academic transcript: that deception was supported by another deception namely the CV which blatantly described himself as having completed degrees with distinction when in fact this was not correct. Further, the claim that he had a "distinction average LLB" in the CV provided to Taylor Root in Felbruary 2015 was utterly false. As Annexure "A" shows, his real marks achieved during his studies show that distinctions were obtained in four subjects out of approximately 21. 3. Other than the desire to progress, and perceived family pressure, there is no explanation or excuse for Mr Ge's conduct. There is no psychiatric condition or medical reason for his conduct. His conduct was motivated solely for self-advantage. 4. Based upon the authorities relied upon by the Commissioner one might believe that it is a foregone conclusion that Mr Ge should be removed permanently from the roll of lawyers as requested by the Commissioner. 5. There is one mitigating circumstance which would, in our judgment, render such a penalty excessive, namely the immaturity and age of Mr Ge and of his background at the time of his offending. Mr Ge was 22 years of age at the date of the offences, having been born on 1 April 1989. At such age, and without experience in the legal profession, the Tribunal is prepared to acknowledge that the act was entirely foolish. As Kitto J in Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 298 "But the false steps of youth and early manhood are not always final proof of defective character and unfitness". 1. There is no question that the conduct of Mr Ge offends the standards and principles for which the legal profession stands, namely impeccable honesty and trust. Whilst no actual loss is apparent to any one person, Mr Ge's conduct offends the public interest in the maintenance of the legal profession, the justice system and community confidence in that system: see Legal Services Commissioner v PFM. There is no question that the Commissioner has discharged the onus of satisfying the Court of the unfitness of Mr Ge to be a practitioner: see Legal Services Board v McGrath at [9]. However the Tribunal is not satisfied that Mr Ge's legal abilities and his desire to learn may not be put to good use in the future. 2. Having weighed up the alternative courses available to us, the Tribunal has determined that the following findings and penalties should result. We observe that since Mr Ge is not suffering from any psychiatric condition, we do not consider that any order should be made requiring him to continue to consult a psychiatrist. Orders and declarations 1. A declaration that Chris Chen Yung Ge is guilty of professional misconduct in respect of each of the five grounds raised in the Application for Disciplinary Findings and Orders. 2. That Chris Chen Yung Ge be disqualified from holding any practising certificate for a period of two years commencing on 22 February 2016. 3. That from 22 February 2018, any practising certificate be endorsed with the condition that for the period of three years from 22 February 2018 or from the date when any application is made for such a certificate Chris Chen Yung Ge only practise as an employee of a solicitor holding an unrestricted practising certificate. 4. That Chris Chen Yung Ge pay the Commissioner's costs of and incidental to these proceedings as agreed or assessed. ANNEXURE "A" Semester Subject Bogus Transcript Official Transcript 1 of 2008 Accounting and Financial Management 1A 80 (Distinction) 60 (Pass) 2 of 2008 Torts 76 (Distinction) 73 (Credit) 1 of 2009 Business Finance 91 (High Distinction) 62 (Pass) Criminal Law 1 77 (Distinction) 56 (Pass) Contracts 1 80 (Distinction) 63 (Pass) Public Law No entry 43 (Fail) 2 of 2009 Contracts 2 76 (Distinction) 72 (Credit) 1 of 2010 Property Equity and Trusts 1 77 (Distinction) 61 (Pass) 2 of 2010 Business Associations 80 (Distinction) 68 (Credit) 1 of 2011 Emerging Capital Markets 81 (Distinction) 69 (Credit) Administrative Law 73 (Credit) 59 (Pass) Litigation 1 76 (Distinction) 71 (Credit) 2 of 2011 Litigation 2 73 (Credit) 58 (Pass) Trusts 78 (Distinction) 62 (Pass) Business Associations 2 77 (Distinction) 61 (Pass) Summer 2012 Advanced Contract Law 81 (Distinction) 57 (Pass) Land Dealings Residential and Commercial Contracts 70 (Credit) 51 (Pass) 1 of 2012 Insolvency Law 80 (Distinction) 73 (Credit) Law of Banking 81 (Distinction) 63 (Pass) Elements of Income Tax Law 77 (Distinction) 63 (Pass) 2 of 2012 Federal Constitutional Law 73 (Credit) 62 (Pass) I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 29 February 2016