Law Society of New South Wales v Byrnes

[2000] NSWADT 20

CITATION:	Law Society of New South Wales -v- Byrnes [2000] NSWADT 20
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT Kevin Patrick Byrnes
FILE NUMBER:	992020
HEARING DATES:	11/02/2000
SUBMISSIONS CLOSED:	02/11/2000
DATE OF DECISION:	03/06/2000
BEFORE:	Officer D QC - Judicial Member; Currie JS - Judicial Member; Costigan M - Member
APPLICATION:	Professional Misconduct - forgery
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Law Society of New South Wales.-v- Foreman (1994) 34 NSWLR 408 O'Reilly -v- Law Society of New South Wales (1988) 24 NSWLR 204 Law Society of New South Wales -v- Walsh (Court of Appeal, unreported 15 December 1997)
REPRESENTATION:	APPLICANT P R Boyd, solicitor RESPONDENT P G Maiden, barrister
ORDERS:	1. The solicitor be publicly reprimanded.; 2. The solicitor pay a fine of $4,000.; 3. The solicitor be allowed 28 days from the date of this decision for payment of the said fine.; 4. The solicitor to pay the Law Society's costs as agreed or assessed.

Background

1 Kevin Patrick Byrnes is a solicitor carrying on his practice, in partnership, at 33 Hay Street, Port Macquarie. He has been charged by the Law Society with professional misconduct in relation to events that occurred on 29 November 1998. The information alleging such professional misconduct was filed on 1 July 1999.

2 Mr. Byrnes is currently 37 years of age. He was admitted as a solicitor in December 1987 and in January 1988 commenced employment with Priests Solicitors in Port Macquarie. In 1990, he became employed by Falvey Associates Solicitors in Port Macquarie and in 1992, he became a partner in that firm which is now known as Falvey Byrnes Associates. As is evident from the statement of these facts, he has spent the totality of his professional life practising in Port Macquarie.

3 Mr. Byrnes was married in 1988 and he and his wife have three children aged nine, six and four.

4 Mr. Byrnes' practise as a solicitor, especially since 1990, has been exclusively in the area of litigation. The Tribunal is satisfied that at the time of the occurrence of the event giving rise to the present proceedings, his practise was extremely busy. The Tribunal accepts that at that time he was involved in one particular piece of litigation which imposed upon him a particularly onerous workload and which caused him considerable stress. The Tribunal also accepts that as a director of one of the companies involved in this litigation he was under considerable pressure, chairing various company meetings. The relevant dispute attracted considerable publicity and this fact increased the pressure on Mr. Byrnes.

5 Mr. Byrnes has a reputation in the Port Macquarie area as a diligent and competent advocate. Apart from the events we are concerned with, he is a man of good character. He has a reputation for undoubted honesty and integrity. He has a reputation for high moral and ethical standards and is someone who has always acted with absolute propriety. He has an unblemished professional record.

The complaint

6 It will be important in due course to put the complaint in context. For present purposes, however, it is sufficient to say that on 6 May 1999, the Professional Conduct Committee of the Law Society of New South Wales in exercise of its powers delegated to it by the Council of the Law Society of New South Wales, resolved to initiate a complaint pursuant to s.135 of the Legal Profession Act 1987 against Mr. Byrnes in the following terms:-

"Forgery. Placing a signature purporting to be that of his client on a document without that client's authority."

7 Following further investigation and consideration, on 17 June 1999, the said Committee resolved in the following terms:

"RESOLVED that the Committee is satisfied there is a reasonable likelihood the Legal Practitioner will be found guilty by the Tribunal of professional misconduct and that proceedings be instituted in the Tribunal pursuant to s.155(2) of the Legal Professional Act, 1987 for the reasons that:

Professional Misconduct
1. The solicitor placed a purported signature of a client on a document without that client's authority.

(a) The solicitor acted for Mark Frederick Cavanagh with respect to a claim for Victims Compensation arising from an incident which occurred on 1 December 1996.
(b) On 29 November 1998 at the solicitor's office at 1st Floor, 33 Hay Street, Port Macquarie, the solicitor placed on a form of application for compensation by a primary victim pursuant to the Victims Compensation Act 1996, a signature purporting to be that of Mark Frederick Cavanagh.
(c) The solicitor did not on 29 November 1998 or at any other time, have the authority of Mark Frederick Cavanagh to place that purported signature on that application for compensation.

Penalty
1. Private Reprimand."

8 The information filed on 1 July 1999 was in terms of the resolution. It is common ground between the parties that the signature that was forged was to a purported statutory declaration, on the form of application for compensation, verifying the truth of the statements in the application. In addition, the solicitor put his signature on the document purporting to witness the signing of the statutory declaration. While this is common ground between the parties before the Tribunal, it is by no means clear from the information before the Tribunal whether the said Committee was cognisant of this fact or whether it dealt with the matter on the basis that the forgery was of a signature on a form of application (not involving a statutory declaration).

9 Mr. Byrnes, by his reply filed in these proceedings, admitted all allegations set out in the information. At the hearing, his counsel, Mr. Maiden, confirmed that this admission extended to an admission that Mr. Byrnes' conduct constituted professional misconduct.

10 The issue before the Tribunal is what order ought be made following such admissions. The Law Society, in the information, sought that the solicitor be privately reprimanded (and ancillary orders). The Tribunal indicated to the parties that it was by no means convinced that that was the appropriate order. The Law Society, however, continued to maintain that that order was appropriate in the circumstances. Counsel on behalf of Mr. Byrnes primarily submitted that a private reprimand was the appropriate order to be made and that no public reprimand ought to be given and no fine imposed. Before considering the appropriateness of a private reprimand, it is necessary to set out in further detail the facts of and surrounding 29 November 1998.

The facts

11 Relevantly, Mr. Byrnes' client was Mark Frederick Cavanagh, a police officer at Port Macquarie, who was involved in an incident on 1 December 1996 as a result of which he instructed Mr. Byrnes to act for him in relation to a claim for compensation pursuant to the Victims Compensation Act 1996. Pursuant to that legislation, there was a limitation period for lodging claims for compensation being two years from the date of the relevant incident. Accordingly in the present case, the relevant limitation period expired on 30 November 1998.

12 Mr. Byrnes was instructed by Mr. Cavanagh at some time on or prior to 24 March 1997 on which date Mr. Byrnes opened the relevant file. At some point of time, Mr. Byrnes received from his client an Application for Compensation form. That the form was filled out in the handwriting of Mr. Cavanagh and it was apparently signed by him under that portion which provides for a statutory declaration verifying the facts set out in the application. The signature of Mr. Cavanagh on this statutory declaration, however, had not been witnessed by any person. Mr. Byrnes does not recall discussing this form with Mr. Cavanagh. His best recollection is that he probably gave Mr. Cavanagh the form to complete and that he dropped it back to him at some point of time of which he is unsure. Thereafter, Mr. Cavanagh apparently spoke to Mr. Byrnes about other matters but not the victims compensation claim.

13 Mr. Byrnes forgot about the file. At some point of time approximately two months before December 1998, he recalled looking at the file. On Friday 29 November, Mr. Byrnes looked at the file and realised the application had to be filed by Tuesday 1 December, otherwise it was statute barred.

14 The claim for compensation form current as at November 1998, was different to that which had been completed by Mr. Cavanagh. By experience, Mr. Byrnes knew that if the old application form was lodged with the Victims Compensation Tribunal it would be rejected. He accordingly, obtained one of the new claim forms and copied the information from the old form to the new. He then forged the client's signature on the statutory declaration verifying the application and then signed his own name as a witness. He also seems to have inserted in the statutory declaration the date of 24 March 1997, which is the date the file was opened.

15 Mr. Byrnes says that he could have rung Mr. Cavanagh and explained Mr. Byrnes' dilemma, but he did not do so because he would have been embarrassed to explain that he had not done anything.

16 Mr. Byrnes sent the form that he had signed on Monday 30 November 1998 to the Victims Claims Tribunal. As soon as he had sent it, he says, he was very concerned about what he had done.

17 On Tuesday or Wednesday (probably, says Mr. Byrnes, the Wednesday) he rang the Tribunal to try and prevent the claim being registered, notwithstanding that he knew that if it was not registered then he would be sued for negligence. He asked that the claim be sent back to him without being registered.

18 The application, in fact, was registered on 3 December 1998. Mr. Byrnes received an authority from Oats & Smith to take over the relevant file. Mr. Byrnes was aware that he could not write to the Tribunal and ask for the form now to be returned because he no longer acted for Mr. Cavanagh. On the same day that he got the authority, he spoke to Mr. Maiden of counsel who advised him that he should ring the Law Society and "confess".

19 On 8 January 1999, Mr. Byrnes was interviewed at the Law Society's offices in Sydney and he made a full statement of what had occurred. The statement was subsequently signed and it has been tendered in these proceedings.

The aftermath

20 Mr. Byrnes says, and the Tribunal accepts, that he is deeply ashamed and embarrassed by his actions. He further says that the whole experience has been extremely humiliating and worrying and he is aware that his record as a solicitor will forever be marked with the notation that he has been guilty of professional misconduct. He has disclosed the matter to his partner, his staff and other legal practitioners in Port Macquarie, some of whom have given him references which are before the Tribunal, and he has found this experience to be deeply humiliating and embarrassing. He unreservedly apologises for what he has done and says that he is determined to ensure that it does not happen again.

21 Mr Byrnes has apologised to Mr. Cavanagh and he had previously written to Mr. Cavanagh's current solicitors explaining what had occurred.

22 Mr. Byrnes can only attribute his behaviour in the present case to his excessive workload, aggravated by the particular matter alluded to above. He has attempted to remedy that situation by employing more staff and being more selective in his choice of clients.

23 The Tribunal was also advised by Mr. Maiden (with the consent of Mr. Boyd, who appeared for the Law Society) that Mr. Byrnes had consulted Dr. Ogbourne at the Northside Clinic after the incident in an attempt, as the Tribunal understands it, to ascertain whether there was any medical condition which may have contributed to the "aberration". He has not since undertaken any medical treatment and the inference is clearly that there was no such underlying medical contributing factor.

The submissions

24 As mentioned above, the Law Society submits that in all the circumstances the appropriate order is a private reprimand. It is pointed out by Mr. Boyd that Mr. Byrnes has an unblemished record. Our attention was drawn by Mr. Boyd to a decision of this Tribunal delivered on 30 September 1999 when a private reprimand was imposed and the Tribunal will return to that decision shortly.

25 Mr. Maiden, as pointed out above, also submits that a private reprimand is appropriate. He relies upon all the facts referred to above and made particular mention of the following:

(a) The pressure of work that Mr. Byrnes was subjected to, particularly at the time.
(b) The very prompt and voluntary disclosure to the Law Society by Mr. Byrnes.
(c) The full and frank disclosure of all aspects of the conduct.
(d) Mr. Byrnes' integrity and honesty.
(e) The fact that further staff have been employed to alleviate the pressure.
(f) The embarrassment and pain already suffered by Mr. Byrnes.
(g) The professional and personal impact of a public reprimand, particularly in a relatively closed community.

26 In this context the Tribunal was referred by Mr. Maiden to what was said by Mr. Justice Kirby, in particular, in Law Society of New South Wales v. Foreman (1994) 34 NSWLR 408 at 419 (para.10). The Tribunal understands that what his Honour was there saying ought be put in the context of an application to remove a practitioner's name from the roll or an application to restore it.

27 Although the Tribunal suggested to Mr. Maiden the possibility of a fine associated with a reprimand (public or private), no submission was directly put in relation to the imposition of any such fine.

Some principles

28 As the Tribunal has mentioned, it was referred to a decision handed down by the Tribunal on 30 September 1999 in support of the proposition that a private reprimand in the present case was appropriate. In our opinion, that decision is of no real assistance in the present case. It is clear that the Tribunal was there concerned with unsatisfactory professional conduct, both in respect of grounds three and five (p.68 of the judgment) and grounds one, two and four (p.72.1 and 74.1 of the reasons for decision). That Tribunal does not appear to have expressed reasons for a private reprimand and certainly none applicable to the present case.

29 It is trite to say that on numerous occasions the courts and tribunals have emphasised the seriousness of false and deceptive conduct. See, for example, O'Reilly v. Law Society of New South Wales (1988) 24 NSWLR 204; Law Society of New South Wales v. Foreman (1994) 34 NSWLR 408. This is especially so where it involves courts or tribunals. See also Beazley, JA. in Law Society of New South Wales v. Walsh (Court of Appeal, unreported 15 December 1997).

30 Disciplinary proceedings are concerned with the protection of the public. The Tribunal's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner. The duty extends to protecting the public from similar default by other practitioners. It is relevant to take into account the effect the Tribunal's order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. "In this sense any penalty imposed should contain an element of general deterrence, publicly marking the seriousness of what the instant solicitor has done.": Foreman (supra, per Mahoney, JA. at 441) and see Law Society of New South Wales v. Walsh (Court of Appeal, unreported 18 December 1997 at 45).

31 The power to administer a private reprimand is set out in s.171(2)(b) of the Legal Profession Act 1987 and is limited to situations where there are special circumstances.

32 Bearing in mind the above principles, we do not consider that a private reprimand is appropriate. What Mr. Byrnes did involved serious dishonesty in forging the name of his client. The forgery was on a statutory declaration. It was done in circumstances where Mr. Byrnes knew that the document was going to be filed with a tribunal. It was so filed. The behaviour occurred because Mr. Byrnes wished to protect himself either from the embarrassment of advising his client that he had not done anything for two years in relation to the claim for compensation and/or to protect himself from being sued for negligence.

33 In coming to its decision, the Tribunal has been mindful of various decisions and penalties imposed in cases of legal practitioners purporting to witness someone's signature. Some of these decisions are referred to in the Legal Services Tribunal's decision In the matter of Lewis Fineman Yee (No. 7 of 1996). The Tribunal is also mindful that in Walsh's case (supra), Mr. Justice Powell said of this decision and the other decisions summarised in it:

"Although I appreciate that the statements of what are said to have been the facts in each such cases are necessarily incomplete and that there may have been extenuating circumstances in some, or even all, of such cases, and although I must accept that others may not share my view, I must say that I find it difficult to understand how it can be said that, in a case in which a legal practitioner has been privy to, or has facilitated the deceit of, and has, in all probability, by so doing, contributed to loss by, a third party, in can be said that the appropriate protective order called for is no more than the imposition of a fine."

34 The Tribunal wishes to make it clear that had it not been for the particular mitigating factors referred to above, it would have taken a much sterner view as to what ought to have been the appropriate order.

35 In the circumstances, the Tribunal concludes:

1. The solicitor be publicly reprimanded.
2. The solicitor pay a fine of $4,000 within 28 days.
3. The solicitor be allowed 28 days from the date of this decision for payment of the said fine.
4. The solicitor pay the Law Society's costs as agreed or assessed.