Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Legal Services Commissioner v Huggett [2017] NSWCATOD 67 Hearing dates: 31 March 2017 Date of orders: 04 May 2017 Decision date: 04 May 2017 Jurisdiction: Occupational Division Before: K O'Connor, AM, ADCJ, Deputy President M Sindler, Senior Member E Hayes, General Member Decision: The respondent is found guilty of professional misconduct, and the Tribunal orders: 1. That he be reprimanded. 2. That he undertake a professional education course in ethics and integrity, as approved by the applicant in consultation with the Law Society. 3. That he pay a fine of $2,500. 4. That he pay the applicant its costs of the proceedings, as agreed or assessed. Catchwords: PROFESSIONAL MISCONDUCT – Legal Profession – Solicitor advising clients to sign statutory declaration in the absence of an authorised witness– Advising he would witness signatures on return of documents – non-compliance with Oaths Act - Whether in circumstances professional misconduct or unsatisfactory professional conduct – Held professional misconduct - Orders made. Legislation Cited: Legal Profession Uniform Law (NSW) No 16a Oaths Act 1900 Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Council of the Law Society of NSW v Chau [2011] NSWADT 271 Council of the Law Society of NSW v Ly [2011] NSWADT 210 Council of the Law Society of NSW v Martin [2012] NSWADT 22 Council of the Law Society of NSW v Orford [2016] NSWCATOD 22. Fraser v The Law Society [1992] NSWLST 6 Category: Principal judgment Parties: Legal Services Commissioner (Applicant) Garry John Huggett (Respondent) Representation: Counsel: T Lynch SC (Respondent) Solicitors: G Millar (Applicant) TA Williams (Respondent) File Number(s): 2016/00378796, 1620235 REASONS FOR DECISION 1. The Legal Services Commissioner has applied to the Tribunal under the Legal Profession Uniform Law (NSW) No 16a (Uniform Law) for a finding of professional misconduct (or in the alternative unsatisfactory professional conduct) and appropriate disciplinary orders in relation to specified conduct of an employee solicitor, Garry John Huggett. 2. The solicitor accepts that the conduct the subject of the application warrants a finding of unsatisfactory professional conduct. The Commissioner is of the view that the finding should be one of professional misconduct. 3. At the time of the conduct in issue, Mr Huggett was employed as a solicitor by Last and Maxwell, Cooma and worked at their Jindabyne office. He is aged 64. He graduated in law in 1984, at the age of 31. He has lived at Jindabyne since 1971, when he was 18. He commenced work at Last and Maxwell in 2004 in a non-lawyer capacity. He was admitted to practice in October, 2005, took out a practising certificate, and commenced work as a solicitor. So at the time of these proceedings he was a practitioner of approximately 11 years standing. 4. In the period 1971 to 2004 he worked in major organisations connected with the Snowy Mountains region, including the National Parks and Wildlife Service and Kosciusko Thredbo Pty Ltd (head lessee of Thredbo Alpine Resort), and held senior positions with them. 5. The conduct under notice occurred on 20 January 2016. He ceased work at Last and Maxwell on 23 January 2016 and formally resigned on 27 January 2016 along with two other members of the firm. On 1 February 2016 they opened a new practice in Jindabyne named Alpine Law. The conduct was reported to the applicant on 16 February 2016. 6. On 20 January 2016 Mr Huggett mailed by post from his Jindabyne office a letter to two clients, a husband and wife, David and June Forbes. They lived in Woolwich, Sydney, about 500kms from Jindabyne. The letter enclosed two statutory declarations, with common text, for separate, individual signature. 7. The declarations were required by the Registrar of Titles for the purpose of replacing a lost certificate of title, prior to an application for subdivision of two parcels of land that formed part a rural holding they owned at Crackenback. 8. At the foot of the declaration below the space provided for the declarant's signature, there was a witnessing clause of a usual kind: ....................................... (signature of declarant) in the presence of an authorised witness, who states: I, GARRY JOHN HUGGETT, a Solicitor certify the following matters concerning the making of this statutory declaration by the person who made it: 1. I saw the face of the person. 2. I have known the person for at least 12 months. ...................................................................... .................................... (signature of authorised witness) (date) 1. The Oaths Act 1900, s 34 provides relevantly: 34 Identification of person making statutory declaration or affidavit (1) A person who takes and receives a statutory declaration or affidavit in this State (an authorised witness): (a) must see the face of the person making the declaration or affidavit, and (b) must know the person who makes the declaration or affidavit or confirm the person's identity in accordance with the regulations, and (c) must certify on the declaration or affidavit in accordance with the regulations that this section has been complied with. Maximum penalty (on summary conviction before the Local Court): 2 penalty units. 1. There was a post-it note attached to the declarations with a handwritten message from Mr Huggett which read: - Pls sign the stat dec in the marked places – I will witness your signature when you return them & complete all the balance details – - Please send the same pen back 1. Mr and Mrs Forbes signed the declarations on 25 February 2016. The owners' son, Steve Forbes, a real estate agent, lived in Crackenback. He had been handling the matter on behalf of his parents. They gave him the signed declarations to return to Mr Huggett. As Mr Huggett no longer worked at Last and Maxwell, Steve asked him what to do. Mr Huggett advised him to take the envelope with the declarations to Last and Maxwell as it was their matter. 2. On 4 February 2016 Steve took the envelope to Last and Maxwell. On 15 February 2016, the responsible solicitor at Last and Maxwell informed Steve that the declarations were not in proper form, as they had not been witnessed as required. The post-it note and pen were with the declarations. 3. She reported the conduct to the applicant, by email, on 16 February 2016. She explained why she considered there had been a reportable breach of professional standards, referred to the post-it note and the pen and continued: Steve was very upset when I told him the documents had not been executed properly and they would need to be resigned. 1. The declarations were ultimately signed and witnessed properly on 24 February 2016 before an authorised witness, a pharmacist at a local pharmacy near where the Forbes lived in Sydney. Ground of Application 1. There is one Ground with 15 Particulars, some subdivided. Ground 1: The respondent attempted to procure a falsely witnessed statutory declaration from David and June Forbes 1. For the avoidance of any doubt, the reference in the charge to falsity relates to the witnessing procedure proposed by Mr Huggett, not any aspect of the declarations. They were correct and in order. 2. The applicant has applied for: 1. A finding that the respondent is guilty of professional misconduct. 2. In the alternative, a finding that he is guilty of unsatisfactory professional conduct. 3. A reprimand. 4. Further, or in the alternative, a fine. 5. Further, or in the alternative, that the respondent undertake training or education in the taking of oaths or affirmations and the witnessing of statutory declarations and affidavits. 6. Costs 7. Any other orders the Tribunal thinks fit. 1. The Tribunal's disciplinary order making powers are set out in the Uniform Law at s 302, read in conjunction with s 299. The power to award costs is dealt with by s 303. The rule is a practitioner who is found guilty of professional misconduct or unsatisfactory professional conduct is to pay costs unless the tribunal 'is satisfied that exceptional circumstances exist'. 2. While it is open to the Tribunal to make a more severe order, such as suspension, cancellation of practising certificate or striking the solicitor's name from the roll (Uniform Law, s 302), where there is a finding of unsatisfactory professional conduct (after giving notice to the respondent), that would be highly unusual. As the application reflects, the applicant has not sought any order that would threaten Mr Huggett's continued ability to practise in the event of a finding of professional misconduct. We agree with that view. Material before the Tribunal 1. The material before the Tribunal comprises: the Application filed 5 October 2016; the Commissioner's Affidavit in support (Ex A1 with Annex JM1, setting out the steps in the investigation); the solicitor's Reply, 22 November 2016, in which he admits the primary facts alleged, and acknowledges that his conduct was, at the least, unsatisfactory professional conduct; replaced at hearing by an Amended Reply prepared in draft we were informed on 24 March 2017, and made known to the applicant; an Affidavit by the solicitor, dated 9 February 2017 (Ex R1); and several Affidavits in support of the solicitor (Exs R1-R7). Those affidavits are primarily in the nature of testimonials. Some of them also deal with circumstances in the solicitor's practice environment at the time of the conduct that may have affected his judgment. The solicitor's affidavit also addresses this matter. Solicitor's Position 1. In his original Reply the solicitor conceded that his conduct amounted to unsatisfactory professional conduct but not professional misconduct, and that the appropriate orders would be a reprimand, a fine in the order of $1000 and an order for costs. In the Amended Reply he withdrew his concession that a fine was appropriate. He now only agreed that a reprimand was required. 2. He also withdrew his concession in relation to costs. He submitted that if the Tribunal agrees with his view that the conduct amounts to unsatisfactory professional conduct not professional misconduct, he should not in the circumstances be required to pay any costs. He seeks, therefore, no order as to costs. 3. He had opposed any order for training in his original Reply, and that remained his position in the Amended Reply. 4. Mr Huggett gave evidence, and his counsel presented written submissions on 'culpability' and 'disposition', and spoke to them. The applicant presented written submissions and spoke to them. Solicitor's Evidence 1. In his evidence, Mr Huggett acknowledged the duty of practitioners to ensure strict adherence to statutory obligations relating to oaths and statutory declarations. Further, he acknowledged the contribution that properly sworn statements of evidence made to the certainty, integrity and efficiency of the land titles administration. 2. He was asked whether his intention, when drafting the declarations and the covering letter, was that he would falsely witness the statutory declarations. He answered 'no'. He was asked what did he intend. He said there had been a discussion with Steve Forbes as to whether he would take the declarations to his parents in Sydney. He had expected that to occur. That could not be done, and he made a 'hurried and incompetent decision' to suggest the course set out in the post-it note. He again denied that when drafting the letter and the statutory declarations he had the intention that they would be falsely witnessed on return by him. 3. He was asked whether Steve was aware of the witnessing obligations. He said that he may have asked him, but 'we didn't get to that point', an allusion as we understood it to the change of plans over how the declarations were to be delivered to Steve's parents. 4. He acknowledged in relation to the contents of the post-it note that the reference to completing the details was a reference to the authorised witness certificate at the foot of the declarations. He was asked why he sent them a pen for signature. He replied that that was desirable so that he could sign with the same pen. 5. It was put to him that he did that to minimise the possibility of detection, or queries about contemporaneity, as might arise if different pens were used. He denied that he deliberately placed the instructions on the post-it note, rather than in the body of the letter accompanying the declarations, to avoid anyone else becoming aware of the practice that he had followed. 6. He said that the post-it note information had not been put in the letter, because the letter was already prepared when the change of plans occurred. He put it in once he learned that Steve would not be taking the envelope to Sydney. 7. He denied that when he sent the letter he had every intention that Mr and Mrs Forbes would sign the declarations in a way that was non-compliant. He speculated that had their son taken the declarations to them he might have driven them to a local JP or solicitor get them signed. 8. He then stated that he would have given the correct explanation to Steve orally. He had only put in the post-it note when he learned he would not be taking the documents to Sydney. He was under time pressure and wanted to catch the mail deadline for Jindabyne, 1.50pm. (20 January 2016 was a Wednesday, with a 'long weekend' coming up due to the Australia Day public holiday on the following Tuesday. His firm had closed for the Monday). 9. He agreed that his intention at the time he filled in the post it note was that he would witness them in the absence of the declarants, Mr and Mrs Forbes. We note that his solicitor had accepted in correspondence with the applicant in the course of the investigation (Ex A1, JM-1, 115) that 'it is not in contention that Mr Huggett offered to Mr and Mrs Forbes to assist them by witnessing their signature on two statutory declarations and would not have been in a position properly to meet the other requirements of the Jurat'. 10. Mr Huggett acknowledged that there would be no difficulties in finding qualified witnesses in the area of Sydney in which the Forbes lived. 11. In his affidavit (Ex R1), Mr Huggett referred to second thoughts that he had after sending the instructions to the Forbes. He was regretful of what he had done, and should have done something about it. He regretted that he did not. 12. He attributed his behaviour to the pressure he was under at the time, in leaving the firm and setting up a new practice, and the pressure to get work completed. He also referred to the pressure he felt over the need to get moving on the Forbes' application. 13. In his affidavit, Mr Huggett said at [21] that he was 'motivated by a desire to assist elderly clients who were distressed by the delay (in completion of the subdivision work) occasioned by the loss of the Certificate of Title, and who I understood, might have difficulty themselves for signing of the declarations to be witnessed by a prescribed functionary'. 14. He had felt frustrated over requisitions and issues raised by the Land Titles office. The issue of the lost certificate for a small parcel of land (an old road purchased from the government in 2009) was creating. Steve Forbes had been pressing to have the matter finalised as he was going overseas in February. Mr Huggett again attributed his failure to rectify his conduct to the pressure he was under at the time. 15. As to having second thoughts and feeling guilty about having given the instructions he did to Mr and Mrs Forbes, he acknowledged that he could have raised the problem with Steve Forbes in the days after 20 January, and did not. 16. He was taken to an unsent letter in final form bearing the date 20 January 2016. It was addressed to a Sydney agent for lodging documents, which listed as enclosed, five categories of documents including 'statutory declarations by both registered proprietors'. He denied that this reflected an intention to have the agent lodge documents that would have been falsely witnessed with the Land Titles office. 17. There is a statutory declaration by Steve Forbes in the applicant's affidavit of evidence. It was given to the applicant by Mr Huggett's solicitor, Mr T. A. Williams and is dated 17 August 2016. It would appear that Steve had been looking after the subdivision application for his parents, and dealing with Mr Huggett for some time. In paragraph [6] of that declaration he said: 'In late January 2016 Mr Huggett sent the draft statutory declarations to my parents in Sydney. I recall that I had the pressure [sic] on Mr Huggett to quickly get the replacement certificate of title as I was trying to get the subdivision finalised before I went overseas in February 2016'. Mr Huggett made a number of references in his testimony at hearing to the pressure he felt because Steve was going overseas. Assessment 1. In our view, Mr Huggett's evidence was unsatisfactory in a number of respects. He prepared a covering letter which did not deal with the required witnessing procedure. His explanation is that he had understood when he prepared the letter that Steve Forbes would be looking after the witnessing procedure, and he would explain what needed to be done orally. 2. In our view a competent solicitor would have included in the covering letter or in a separate information sheet a written instruction expressed in an easy-to-follow way as to what was required. He or she might well then provide, as a supplement, an oral explanation to any person who might be managing the procedure, in this instance possibly Steve. 3. When circumstances changed, Mr Huggett should have changed the contents of the letter, and if he felt he did not have time to do that because of exigencies of mailing deadlines, at least get on the telephone to his clients and explain carefully to them what needed to be done. He did not satisfy us that he had a conscientious commitment to strict observance of witnessing obligations at the time of these events. 4. We accept that he has an awareness of the importance of witnessing obligations. But it seemed to us to be an abstract one. There were no complications for the Forbes in finding an authorised witness in their part of Sydney, as subsequent events demonstrated. In cross-examination he spoke of being prepared to go the 'extra mile' to ensure that statements were properly witnessed, and spoke of driving long distances to be with clients, and have documents properly witnessed. The Forbes were not people living in isolated rural areas where accessing an authorised witness might present some difficulty. 5. In our view, Mr Huggett well appreciated that what he was doing was improper, and the use of the post-it note reflected that appreciation. It was a document of a transient kind that would, in ordinary circumstances, not have found its way onto the file or come to the attention of another solicitor. He took a short-cut. 6. Instead, as we see it, of admitting unreservedly his guilt from the outset, and expressing genuine remorse, he has constructed a self-serving explanation. He has not accepted that he had an intention at the time he wrote and sent the letter on which he placed the post-it note to engage in an act of falsification of a document. 7. We do not think that workplace pressure had any significant bearing on his actions. 8. We were unimpressed with his testimony. 9. In our view, he is yet to fully embrace the seriousness of what he did, and the signal it sends to the wider community about the fealty to the law of legal practitioners. He acted in a way that gave rise to another delay in what had already been a long running matter for his clients. Submissions 1. Counsel for Mr Huggett concentrated a number of his submissions on the drafting of Ground 1. To reiterate, the charge is that The respondent attempted to procure a falsely witnessed statutory declaration from David and June Forbes 1. Counsel made criminal law-style submissions on the meaning to be attached to the words 'procure', 'attempted' and 'falsely' witnessed, and claimed there were deficiencies of expression that cast his client's conduct in an unduly unfavourable light. 2. We accept, as submitted, that the declarations were never actually falsely witnessed. The charge does not go that far, it describes Mr Huggett's conduct as conduct which 'attempted to procure' that outcome. 3. In our view, the essence of the charge is clear, whatever debate there might be about its drafting or the choice of words. 4. It is plain that Mr Huggett had set in train a process that would, had he not resigned, have resulted in the documents being returned to him. He would, we think, have proceeded with his plan. 5. We regard as not credible the suggestion in his evidence and counsel's submissions that he would have seen the error of his ways and taken steps to rectify his advice, with the necessity to have new unsigned documents created, to have them sent back to Sydney, to make a very awkward explanation to his clients, and to allow time for them to get them witnessed and returned. He was under time pressure, had engaged in a short-cut and would, we think, have persisted with it. 6. Under the Uniform Law (s 296) unsatisfactory professional conduct [I]ncludes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 1. We are satisfied that the conduct was, at least, unsatisfactory professional conduct. The solicitor does not dispute that. 2. Under the Uniform Law (s 297) professional misconduct includes: (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. 1. There is no consistent failure in this case. In our view there was nonetheless a 'substantial failure' as we explain below. Findings 1. We are satisfied that the solicitor engaged in conduct that he knew at the time was wrong, reflected in the steps that he took to use a transient document, a post-it note, to convey instructions to his clients. We are satisfied that he chose to include a pen so that could be used both by his clients and him to assist in giving the impression that the declarations were signed and witnessed at the same time in each other's presence. The behaviour lacked integrity. 2. We do not give any strength to one line of defence pursued by Mr Huggett in cross-examination and by his counsel in submissions that soon after he mailed the declarations, he had guilty feelings over his behaviour or that his innocence of any malevolent intent is demonstrated by the fact that he simply told Steve to return the envelope and its contents to Last and Maxwell. The critical issue is his state of mind at the time of the conduct. While that issue may be informed by reference to later conduct, in this instance we think the circumstances that surrounded his creation of the post-it note largely speak for themselves as to his state of mind. 3. In cases of actual false certification or false witnessing it is usual to make a finding of professional misconduct. See for example, Fraser v The Law Society [1992] NSWLST 6, and Council of the Law Society of NSW v Ly [2011] NSWADT 210, Council of the Law Society of NSW v Chau [2011] NSWADT 271, Council of the Law Society of NSW v Martin [2012] NSWADT 22 and, more recently, Council of the Law Society of NSW v Orford [2016] NSWCATOD 22. We acknowledge that some of these cases involved multiple counts and were of greater seriousness, viewed overall, than this case. 4. There is nothing in this case, as we explained, that credibly suggests that the solicitor would have had a change of heart, and rectified the action he took. He had set on a course of action, and his conduct became known, fortuitously because of his departure from the firm and his (appropriate) decision to advise the clients to take the documents when they were returned to the firm retained in the matter. 5. Giving advice to clients not to follow the requirements of the Oaths Act when signing declarations and offering to undertake the witnessing procedure in a way that would give rise to a false certification by the solicitor witness as to compliance with the Oaths Act are grave matters. Their proof will usually give rise to a finding of professional misconduct, even though the case only involves, as here, one instance of misconduct. 6. This is a case of a 'substantial' failure, as that adjective is used in part (a) of the statutory meaning of professional misconduct. It also satisfies the common law description of 'professional misconduct' (see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750). It was a dishonourable practice that would be condemned by the solicitor's professional colleagues. Moreover, we think the conduct raises issues of integrity that bear on the question of his intrinsic character, and his fitness to engage in legal practice, and falls within part (b) of the statutory meaning. Orders 1. We accept that in this instance, however, it is a sufficient rebuke, and serves adequately the end of protection of the community, to make disciplinary orders that do not bear on the solicitor's ability to remain in practice. 2. He was an experienced practitioner, and had held in his prior career senior administrative positions of significance. He did not show a conscientious commitment to his obligations as a practitioner on this occasion. Yet he would, we think, have been acutely aware of the vital role that statutory declarations play in many areas of public administration, and in dealings in property and the like, by virtue of his background both as a solicitor and as a senior executive in organisations that had significant land care and land management responsibilities 3. Mr Huggett had an impressive range of testimonials. Clearly he has been an active and significant member of his local community and made a significant contribution to his local community in a number of roles. 4. A reprimand should be imposed. 5. We were taken by counsel for Mr Huggett to a variety of cases, including some of those to which we have referred above, dealing with where misconduct might fall on the 'fine' spectrum. In this case, we think a fine is warranted. We fix it at $2,500. 6. As to the question of whether the solicitor should be required to undertake an appropriate ethics course, we think that is desirable. We have no doubt that Mr Huggett now fully appreciates the importance of strict observance of witnessing obligations. What we are more concerned about is the kind of explanations he gave for his conduct. They pointed to a difficulty in managing ethical obligations under client pressures, perhaps exacerbated by difficulties that arise in country practices in geographically large and sparsely populated regions. 7. At hearing, Mr Huggett presented evidence of a three hour, afternoon, course in which he had undertaken the day before the hearing (i.e. 30 March 2017) as part of his CPD requirements at University of New South Wales called an 'Examination of the Future of Legal Practice'. It included elements related to ethics and integrity, but covered a wide span of topics. It does not represent a sufficient response to the concerns we have. Costs 1. As to costs, the solicitor's submissions in support of no order being made turned on there being a finding of unsatisfactory professional misconduct, which we have not made. 2. We wish to make it clear that we would not have acceded to the proposition that the fact of a finding equivalent to the plea he had offered from the outset of proceedings is enough to constitute an 'exceptional circumstance' warranting an exception to the usual rule. As disciplinary cases regularly do, there were matters of importance in relation to the proper practice of law raised by this case. There were aspects of his response to the charge and his explanations that warranted testing and challenge. In cases where the applicant has been unsuccessful in its case for a more serious finding there is no axiomatic link in relation to the issue of costs between the offer of a plea and a determination by the Tribunal that is in line with the plea. Orders The respondent is found guilty of professional misconduct, and the Tribunal orders: 1. That he be reprimanded. 2. That the respondent undertake a professional education course in ethics and integrity, as approved by the applicant in consultation with the Law Society. 3. That he pay a fine of $2,500. 4. That he pay the applicant its costs of the proceedings, as agreed or assessed. ********** 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: 19 December 2018