Law Society of New South Wales v Shad

[2002] NSWADT 236

CITATION:	Law Society of New South Wales v Shad [2002] NSWADT 236
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT George Shad
FILE NUMBER:	012012
HEARING DATES:	19/06/02, 06/08/02
SUBMISSIONS CLOSED:	08/06/2002
DATE OF DECISION:	11/15/2002
BEFORE:	Nicholas WH QC - Judicial Member; Durbach A - Judicial Member; Geddes J - Member
APPLICATION:	Professional Misconduct - forgery - Professional Misconduct - mislead client - Professional Misconduct - mislead Court - Professional Misconduct - mislead Law Society - Professional Misconduct - prepare false documents
MATTER FOR DECISION:	Principal Matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Grgic -v- Australian and New Zealand Banking Group Limited (1994) 33NSWLR202 Spero Pitsikas (No.23/1993, 14 June 1994) Lynette Robyn McLardy (1998) 3 DR 23 Mitchell (1992) 1 LPDR 6 Weingarth (1993) 2 LPDR Konstantinidis (1993) 1 LPDR 3 Yee (1997) 3 LPDR 1 The Law Society of New South Wales –v- Foreman (1994) 34NSWLR408 Johns -v- The Law Society of New South Wales (1982) 2NSWLR1 ex parte Lenehan (1948) 77CLR403 Fraser -v- The Law Society of New South Wales (CA40780/91, unreported, 7 August 1992)
REPRESENTATION:	N Beaumont, barrister D Ryan, barrister
ORDERS:	1. That the Solicitor pay a fine of $35,000, such fine to be paid within eight (8) weeks of this date; 2. That the Solicitor pay the costs of the Law Society of NSW of these proceedings as agreed or assessed.

1 By Information filed 3 May 2001, subsequently amended by a Further Amended Information filed 19 June 2002, the Council for the Law Society of New South Wales (the Applicant) claimed that George Shad (the Respondent) was guilty of professional misconduct on the following grounds:

Ground 1

(1) The solicitor purported to witness the signature of Janet Chen Liam Maniam on three mortgages as being a mortgagor who was personally known to him and execution took place in his presence on or about 30 January 1990. Whereas the said Janet Cheng Liam Maniam did not attend the premises of George Shad on or about 30 January 1990 and never executed any mortgage in favour of the Bank of Melbourne Limited.
(2) That the solicitor attempted to mislead the Law Society in his correspondence as to the events and circumstances surrounding the execution of the mortgages in favour of the Bank of Melbourne.
(3) The solicitor attempted to mislead the Bank of Melbourne by certifying that Mrs Maniam had executed “the mortgages and guarantees” in his presence when she never executed the mortgage and guarantees in his presence or at all.

Ground 2

(1) On the 20th May, 1994 the solicitor swore a Family Court Affidavit which was misleading in relation to the actual
dealings with respect to the property known as No. 38 Morton Street, Lakemba.
(2) The solicitor falsified documents in relation to that property and annexed same to his affidavit.

2 The Particulars relied upon and contained in the Schedule 1 of the Further Amended Information are as follows:
Ground 1

(1) Janet Cheng Liam Maniam (‘Mrs Maniam’) was not personally known to the solicitor.
(2) The solicitor had known and acted for Dr Maniam since before 1988. Dr Maniam had experience in the purchase and sale of real property and the financing of property development by way of mortgages.
(3) Dr Maniam was, at all material times, a director of Pazaville Pty Limited, Tudemo Pty Limited and O.L.B.B. Pty Limited. Dr Maniam executed the mortgages to which reference is made in particular numbered 4, below, variously as mortgagor or guarantor, or as a director of each of those companies either a mortgagor or guarantor, or both in his own right and as a director of each of those companies.
(4) Mrs Maniam was married to Dr Maniam and at all material times was a director, secretary and shareholder of Pazaville Pty Limited, Tudemo Pty Limited and O.L.B.B. Pty Limited, and was together with Dr Maniam a registered proprietor of real property the subject of title F I 8/2/976382.
(5) A signature purporting to be that of Mrs Maniam appears on the following mortgages executed on or about 30 January 1990:


Registered No. Y931238 – a mortgage of property title F I A/354280 by Vijendran Maniam and purported executed guarantees by Janet Cheng Liam Maniam, O.L.B.B. Pty Limited, Tudemo Pty Limited and Pazaville Pty Limited in respect of the mortgage;
Registered No. Y931235 – a mortgage of property title F I 9/209432 by Pazaville Pty Limited, guarantee by Vijendran Maniam, O.L.B.B. Pty Limited, Tudemo Pty Limited in respect of the mortgage;
Registered No. Y931240 – a mortgage of property title F I 8/2/976382 by Vijendran Maniam and purported mortgage by Janet Cheng Liam Maniam, and purported executed guarantees by Janet Cheng Liam Maniam, O.L.B.B. Pty Limited, Tudemo Pty Limited and Pazaville Pty Limited in respect of mortgage;

(6) The mortgages were security for advances totalling $910,000.00.
(7) In letter of 25.06.1993 from the solicitor to the Law Society the solicitor stated, inter alia, “Prior to the documents being executed, Dr V. Maniam requested copies of all documentation to enable him to peruse same.” On or about 30 January, 1990 Dr Maniam’s secretary made an appointment for Dr Maniam to attend the solicitor’s office on short notice and “Dr V. Maniam and a lady who Dr Maniam referred to as ‘Jan’ came into the writer’s office and all documents were then executed.”
(8) Mrs Maniam has stated:

(a) that she did not attend at the offices of the solicitor in 1990 accompanied by Dr Maniam or at all;
(b) that at no time did she execute any of the mortgages referred to in paragraph 4 above “in the presence of the solicitor” or at all.

(9) The solicitor stated in a letter of the 28th July 1993 to the Law Society “on that occasion that the documents were explained to Dr Maniam and Mrs Maniam for a period of approximately 20 minutes and they commenced executing the documents.” That he saw at least one page of the documents executed before exiting the room.

Ground 2

(1) On the 20th May, 1994 the solicitor swore an affidavit that was false in the following several particulars.


(a) At paragraph 11 the solicitor swore, “At the same time (1987) I also prepared a contract for sale of land to reflect Khalid Cheikho’s interest in the property.” Whereas the solicitor admitted under oath that the said contract was not prepared until 1992.
(b) That the contract annexed to his affidavit was dated July, 1987 where as the solicitor admitted under oath that the contract was not prepared until 1992.

(2) That the solicitor produced to the Stamp Duties Office a contract which was prepared in 1992 but the solicitor backdated it to July 1987.
(3) The solicitor used a 1986 edition of the standard contract for sale to create the impression that the contract was entered into in 1987.
(4) The solicitor made a declaration to the Stamp Duties Office which was false in a particular in that he declared the relevant date to be July, 1987 whereas in fact the document should properly have contained a date in 1992.
(5) The solicitor attempted to mislead the Family Court into believing that annexure “C” to his affidavit of 20th May, 1994 (being a mortgage) was brought into existence in 1987 whereas it was not prepared until 1992.
(6) That the mortgage was brought into existence by the solicitor to attempt to defeat or minimise (partly) Mrs Mona Cheikho’s property entitlement.
(7) That the annexures and the matters deposed to in the solicitor’s affidavit were both incorrect and misleading.
(8) That the solicitor annexed the mortgage to his affidavit knowing same to be a sham and knowing that “it was not intended to have any effect other than to defeat the claim of Mona Cheikho and the other wives.”

3 The solicitor caused to be filed his Reply dated 14 June 2001 to the Particulars in the Information. At the commencement of the hearing, his Reply was supplemented and the following admissions were made in relation to the Particulars in the Further Amended Information, in the following terms:
Ground 1

(1) Janet Cheng Liam Maniam (‘Mrs Maniam’) was not personally known to the solicitor.
(2) The solicitor had known and acted for Dr Maniam since before 1988. Dr Maniam had experience in the purchase and sale of real property and the financing of property development by way of mortgages.
(3) Dr Maniam was, at all material times, a director of Pazaville Pty Limited, Tudemo Pty Limited and O.L.B.B. Pty Limited. Dr Maniam executed the mortgages to which reference is made in particular numbered 4, below, variously as mortgagor or guarantor, or as a director of each of those companies either a mortgagor or guarantor, or both in his own right and as a director of each of those companies.
(4) Mrs Maniam was married to Dr Maniam and at all material times was a director, secretary and shareholder of Pazaville Pty Limited, Tudemo Pty Limited and O.L.B.B. Pty Limited, and was together with Dr Maniam a registered proprietor of real property the subject of title F I 8/2/976382.
(5) A signature purporting to be that of Mrs Maniam appears on the following mortgages executed on or about 30 January 1990:


(a) Registered No. Y931238 – a mortgage of property title F I A/354280 by Vijendran Maniam and purported executed guarantees by Janet Cheng Liam Maniam, O.L.B.B. Pty Limited, Tudemo Pty Limited and Pazaville Pty Limited in respect of the mortgage;
(b) Registered No. Y931235 – a mortgage of property title F I 9/209432 by Pazaville Pty Limited, guarantee by Vijendran Maniam, O.L.B.B. Pty Limited, Tudemo Pty Limited in respect of the mortgage;
(c) Registered No. Y931240 – a mortgage of property title F I 8/2/976382 by Vijendran Maniam and purported mortgage by Janet Cheng Liam Maniam, and purported executed guarantees by Janet Cheng Liam Maniam, O.L.B.B. Pty Limited, Tudemo Pty Limited and Pazaville Pty Limited in respect of mortgage;

(6) The mortgages were security for advances totalling $910,000.00.
(7) The solicitor stated in a letter of the 28th July 1993 to the Law Society “On that occasion that the documents were explained to Dr Maniam and Mrs Maniam for a period of approximately 20 minutes and they commenced executing the documents.” That he saw at least one page of the documents executed before exiting the room.

Ground 2

(1) On the 20th May, 1994 the solicitor swore an affidavit that was false in the following several particulars:


(a) At paragraph 11 the solicitor swore, “At the same time (1987) I also prepared a contract for sale of land to reflect Khalid Cheikho’s interest in the property.” Whereas the solicitor admitted under oath that the said contract was not prepared until 1992.
(b) That the contract annexed to his affidavit was dated July, 1987 where as the solicitor admitted under oath that the contract was not prepared until 1992.
(c) He denied that he had intentionally sworn a false affidavit.

(2) That the solicitor produced to the Stamp Duties Office a contract which was prepared in 1992 but the solicitor backdated it to July 1987.
(3) The solicitor used a 1986 edition of the standard contract for sale to create the impression that the contract was entered into in 1987.
(4) The solicitor made a declaration to the Stamp Duties Office which was false in a particular in that he declared the relevant date to be July, 1987 whereas in fact the document should properly have contained a date in 1992.
(5) That the annexures and the matters deposed to in the solicitor’s affidavit were both incorrect and misleading, but he denied that there was any intention to mislead.

4 The evidence in support of the complaint was contained in the affidavits of Raymond John Collins sworn 11 August 1999 and 3 May 2001, affidavits of Janet Chew sworn 20 August 2001 and 2 October 2000, expert certificate of Chris Anderson dated 28 February 2002 which included his reports of 24 July 1995 and 7 November 1995. There was also admitted a volume of documents which was Exhibit 5.

5 For the Solicitor, the Tribunal had the benefit of oral evidence of the solicitor himself as well as his affidavit sworn 5 October 2001, affidavit of Rita Di Bello dated 26 October 2001. Also as to background and character were the affidavits of Allan William Stockman sworn 26 October 2001, Linden Ray Evans sworn 14 November 2001, Monsignor Michael Berbari sworn 19 October 2001, Barrie Walsh Edwards sworn 16 October 2001, Bishop Issam Darwish sworn 23 October 2001, Mario Pipeerides sworn 10 December 2001, Timothy David Olliffe sworn 6 December 2001, Frank Nashaty sworn 10 December 2001, Ross Hazlett sworn 12 December 2001, John Marshall Fisher sworn 17 December 2001, Keith Arthur Bageley sworn 17 December 2001, Matthew John Fisher sworn 17 December 2001, David John Hall sworn 14 December 2001, David Lance Bentley sworn 17 December 2001, Robert William Petersen sworn 17 December 2001, Nader Charles Badra sworn 20 December 2001, Alain Nguyen-Ding Khanh sworn 20 December 2001, Michael Cecil Newton sworn 4 January 2002, Charles Richard Xuereb sworn 24 December 2001.

A preliminary point:

6 In final submissions for the Solicitor objection was taken to the jurisdiction of the Tribunal to hear and determine issues arising under Ground 1 in the Further Amended Information. The objection was based on the change made by the amendment to particular 1 in the earlier Information, namely from the allegation that the Solicitor was personally known to Mrs. Maniam and Dr. Maniam since before 1988 to the allegation that Mrs. Maniam was not personally known to the Solicitor.

7 Leave was given by the Tribunal during the hearing on 19 June 2002 to file the Further Amended Information. In due course the Solicitor was cross- examined by direct reference to the particulars set out therein including the allegation in amended particular 1. No objection was taken to the filing of the Further Amended Information and there was no unfairness to the solicitor as a consequence of the amendments contained in it.

8 On behalf of the Solicitor it was put that the effect of the amendment was to deprive the Tribunal of jurisdiction because the allegation that Mrs. Maniam was not personally known to him had not been the subject of investigation by the Law Society. It was not made clear whether objection was taken to jurisdiction to hear and determine any matter under Ground 1 or only to hear and determine the issue under amended particular 1 to Ground 1. Whatever be the case, the submission has no force. The Tribunal has the power to vary an information pursuant to s167A Legal Profession Act1987 which provides:

"(1) The Tribunal may, on the application of a Council or the Commissioner who laid an information, vary the information laid so as to omit allegations or to include additional allegations if the Tribunal is satisfied, having regard to all the circumstances, that it is reasonable to do so.
(2) Without limiting subsection (1), when considering whether or not it is reasonable to vary an information, the Tribunal is to have regard as to whether varying the information will affect the fairness of the proceedings.
(3) The variation of an information by the Tribunal to include an additional allegation is not precluded because the alleged conduct concerned occurred more than 3 years before the variation is made. "

9 The discretionary power to vary the information can be seen to be not limited to allegations which have been the subject of prior investigation by the Law Society. It is a wide power to be exercised with regard to considerations of reasonableness and fairness. The amendments were allowed in circumstances where it was both reasonable and fair to do so. The Tribunal plainly had jurisdiction to proceed to hear and determine all the issues raised under the Further Amended Information.

Ground 1: The Maniam documents:

10 The events which gave rise to this ground arose in the following circumstances:

10.1 Dr Maniam was experienced in the practice and sale of real property and the financing of such transactions. The Solicitor had known and acted for him since before 1988. At all material times Dr Maniam was married to Janet Maniam and they were directors of Pazaville Pty Limited, Tudemo Pty Limited and O.L.B.B. Pty Limited. They were also the joint registered proprietors of real property the subject of title FI8/2/976382.
10.2 Mrs. Maniam had met the Solicitor on one occasion only which was in early 1988 at a dinner which she and her husband hosted at Concord Golf Club. The Solicitor and his wife and another couple were present as guests. The Solicitor did not have any contact with Mrs Maniam thereafter.
10.3 On or about 30 January 1990, Dr Maniam, accompanied by a woman. attended the Solicitor's offices for the purpose of signing the three mortgages the subject of the complaint and other documents. A few days before, the Solicitor sent copies of the documents to Dr Maniam and had spoken to him about them on the telephone. At the office Dr Maniam introduced the woman to the Solicitor as "Jan" and led him to understand that she was his wife. The meeting was conducted in a conference area and is described in the Solicitor's letter to the Law Society of 28 July 1993 as follows:

"The writer recalls on that occasion that the documents were explained to Dr Maniam and Mrs Maniam for a period of approximately 20 minutes and they commenced executing the documents. The writer did see both Dr Maniam and Mrs Maniam sign at least one page of the documents and thereafter excused himself to attend to other interviews in his office. The writer did eventually see Dr Maniam and Mrs Maniam after all documentation were (sic) executed."

10.4 There were many documents requiring signature including authorities as well as the mortgages. The Solicitor was unable to recall whether the page he actually saw signed was of an authority or of a mortgage.
10.5 Subsequently the Solicitor signed the attestation clause in the mortgages in the usual form for a Real Property Act transaction by which he represented that the mortgages had been signed in his presence by each of Dr Maniam and Mrs Maniam who was personally known to him.
10.6 The mortgages were security for advances from the Bank of Melbourne for a total sum of $910,000.00. With his letter of 1 February 1990 to the solicitors for the Bank of Melbourne, Messrs. Westgarth Middletons, the Solicitor sent the documents listed therein and, in particular, described each memorandum of mortgage as having been duly signed and stamped. The mortgages were dated 26 March 1990 and soon thereafter were registered.
10.7 As it happened, Dr and Mrs Maniam separated on 14 March 1990 and the marriage was dissolved on 31 March 1992. In her affidavit sworn 20 August 2001 (Ex.3) Janet Cheng Lian Chew (formerly Mrs Maniam) deposed that she did not sign or in any way approve any of the security documents and that the signature on each which purported to be hers is not her signature. She said that the initials on the security documents are not her initials. She also said that she never consented to Dr Maniam or anyone else signing a document on her behalf. She was completely ignorant of any of the dealings to which the mortgages related until made aware of them by her solicitor in about May 1991.

11 It appears that the attention of the Solicitor was first drawn to the issue by the letter of 16 June 1993 to him from Mrs Maniam's solicitors, Benjafield Coyle & Shanahan, advising that their client never signed where she was purported to have signed as mortgagor and guarantor. They further advised that Mrs Maniam reserved all her rights and claims to recover from the Solicitor any loss arising from what appeared to be his false witnessing of her purported signature on the security documents.

12 Correspondence then took place between the Law Society and the Solicitor. Because it is alleged the Solicitor attempted to mislead the Law Society in his correspondence as to the events and circumstances surrounding the execution of the mortgages, the relevant documents are listed hereunder. It is not necessary that their content be set out in these reasons:

(i) the letter from the Law Society to the Solicitor of 23 June 1993.
(ii) the letter from the Solicitor to the Law Society of 25 June 1993 with the enclosures referred to therein, being the letter of 16 June 1993 with annexures, the letter of 17 June 1993, and the letter of 24 June 1993.
(iii) the letter from the Law Society to the Solicitor of 26 July 1993.
(iv) the letter from the Solicitor to the Law Society of 28 July 1993.

13 There was also evidence from Mr Chris Anderson, whose expertise as a forensic document examiner includes analysis of handwriting and signatures. Part of Ex.4 were his reports of 24 July 1995 and 7 November 1995. He also gave oral evidence before the Tribunal. He had conducted an examination of projection prints of the mortgages, photocopies of specimen documents which bore the genuine signature of Mrs Maniam, and specimen documents which bore the genuine signature of Dr Maniam. His opinion was that the evidence pointed very strongly against Mrs Maniam having signed the mortgages. He also thought that it was probable that the writer of the "M Maniam" signatures and of the "J Maniam" signatures on the mortgages was the same person, although he readily acknowledged that he could not be "virtually certain" that this was so.

14 Having regard to the unchallenged evidence of Mrs Maniam and the whole of Mr Anderson's evidence, the Tribunal is well satisfied that Mrs Maniam's signatures on the mortgages were forged. For the purposes of these proceedings it is not necessary to decide whether Dr Maniam was the forger although the evidence indicates that he probably was.

15 For the Law Society it is submitted that by his attestation in each mortgage:

(i) the Solicitor falsely represented that the document was signed in his presence when it was not; and
(ii) the Solicitor falsely represented that the signatory was Mrs Maniam who was personally known to him when she was not.

16 On behalf of the Solicitor it was submitted that the evidence did not establish that the Solicitor was aware that the woman who attended his office with Dr Maniam when the documents were signed was not Mrs Maniam. The Tribunal accepts that submission. It was not proved that the Solicitor knew that the woman was not Mrs Maniam. It seems, however, that the Solicitor accepted without question that she was the person Dr Maniam represented her to be, namely his wife. She was of Asian appearance as was the person with whom he had dined at the Concord Golf Club in 1988. In his letter of 17 June 1993 to Benjafield, Coyle & Shanahan the Solicitor said that he knew Dr Maniam personally who introduced the woman to him as "Jan Maniam", and that for obvious reasons he did not ask for identification of her. Furthermore, in his oral evidence the Solicitor said that at the time he signed the documents he was of the honest belief that it was Mrs Maniam that had signed the documents. He said that he had not the slightest doubt at the time otherwise he would never have signed them.

17 The evidence also was to the effect that there were a lot of documents to be considered and that the Solicitor would not have spent any more than 15-20 minutes in explanation before leaving the couple to sign them whilst he attended to other business. It was a very busy time for him. The impression given to the Tribunal is that, in the circumstances, the Solicitor simply assumed that the woman was, in fact, Mrs Maniam.

18 Although one might argue as to the extent of enquiry which should be made before forming a reasonable belief as to identity, the Tribunal accepts that it was the Solicitor's belief that the woman was Mrs Maniam based on Dr Maniam's representation and the woman's appearance. [Thus it can be said that he was not guilty of fraud in the sense that such conduct was considered in Grgic -v- Australian and New Zealand Banking Group Limited (1994) 33NSWLR202 @ 221, 222.

19 It is relevant to note that in his affidavit (Ex.6) he stated that his only recollection of the person who accompanied Dr Maniam was that she was of Asian appearance. He said that he definitely would not recognise her if he met her again. He said that he recalled being present at a function at Concord Golf Club at which he was introduced to Mrs Maniam but he spent very little time in her company. He has a vague recollection that she was of Asian appearance but beyond that formed no lasting impression of her appearance.

20 It is fair to conclude from the whole of the evidence that had Mrs Maniam herself attended unaccompanied it is probable that the Solicitor would not have known or recognised her for who she was. The reality is that the Solicitor relied almost entirely upon Dr Maniam's representation rather than his personal knowledge when he completed the attestation clauses. Indeed, under cross-examination he agreed that he did not know her personally (Tp55 l55 – Tp56 l11). The inevitable conclusion on the evidence is, and the Tribunal finds, that Mrs Maniam was not personally known to the Solicitor, within the natural and ordinary meaning of the phrase. Had he paused to consider what was required, he could only have come to the same conclusion.

21 On the evidence there can be no doubt that the mortgages were not signed in the presence of the Solicitor and that Mrs Maniam was not personally known to him. The representation contained in the attestation clauses in each of the mortgages was false.

22 Furthermore, the Solicitor must have been conscious at the time that he was falsely witnessing the signatures. Indeed, the explanation given in his affidavit (Ex.6) makes the situation plain. It is in these terms:

"23. As I was running at the time numerous interviews and occasionally would be conducting concurrent interviews in different rooms, I made it a practice to see each party sign at least one document prior to departing. I would have carried out the same practice on that occasion."

It was adhered to in his oral evidence. His letter to the Law Society of 28 July 1993 was to the same effect.

23 It should also be noted that the Tribunal is not satisfied that the "one document" referred to in the above quotation was one of the mortgages, or a page of it, particularly having regard to the Solicitor's oral evidence that he was unable to recall the nature of the document which he did see signed.

Conclusion:

24 The Tribunal finds that the Solicitor's conduct constituted professional misconduct.

25 The following passage from the Tribunal's decision in the matter of Spero Pitsikas (No.23/1993, 14 June 1994) is apt:

"There is no need for this Tribunal to refer to previous decisions of this Tribunal which have made it abundantly clear that with an attestation clause of that type it is axiomatic that before a solicitor appends his signature as a witness the person executing the document by appending thereto his/her signature must actually do so in the presence of the solicitor.

Although it is true in the instant case…….there is always the real risk that where a solicitor (or anyone else for that matter) signs as a witness in circumstances where he/she did not in fact witness the signature, the signature may be false. In other words, there is always a risk of forgery and there have been cases in this Tribunal where the signature alleged to have been witnessed by the solicitor was in fact forged.

Not only is there responsibility placed upon a solicitor to "do the right thing" but where a solicitor says, in the document upon which other persons will rely, that he/she in fact witnessed the particular signature or signatures, a failure to so personally witness amounts to fraud and is professional misconduct."

26 So, too, is the passage from the Tribunal's decision in the matter of Lynette Robyn McLardy (1998) 3 DR 23 at 24:

"On numerous occasions in recent determinations, this Tribunal has attempted to make it crystal clear to legal practitioners that the false witnessing of any document by a legal practitioner is a matter which will be dealt with seriously by the Tribunal, that it involves a substantial departure from the standards expected in this profession and that practitioners who indulge in it must expect to suffer very serious consequences: see for example Mitchell (1992) 1 LPDR 6; Weingarth (1993) 2 LPDR at 10.

In most instances, false witnessing of this type will amount to fraud. In relation to property transaction documents, such as the transfer in this case, it is often the case that the signature "witnessed" has in fact been forged. Although that was not the case with this complaint, the possibility of forgery and the extremely serious consequences of a forged transfer being lodged for registration, should always be borne in mind: see for example Konstantinidis (1993) 1 LPDR 3; Yee (1997) 3 LPDR 1."

27 As evidence of the professional misconduct of the Solicitor the Law Society also relies upon his letter of 1 February 1990 to the solicitors for the Bank of Melbourne, already referred to, in which the mortgages are described as having been duly signed and stamped. Although technically the description may be regarded as misleading, in the Tribunal's view it does not warrant separate consideration as aggravating the misconduct evidenced by the false attestation. This letter should properly be seen as bound up with the false attestations, it being remembered, of course, that with the letter came the very mortgages which included them.

28 Further evidence of professional misconduct is alleged to be the Solicitor's correspondence with the Law Society specified above. In his letter of 25 June 1993 the Solicitor stated, inter alia, "…..Dr V Maniam and the lady who Dr Maniam referred to as "Jan" came into the writer's office and all documents were then executed." With that letter he enclosed a copy of his letter to Benjafield, Coyle & Shanahan of 17 June 1993 in which he stated, inter alia: "The documents were then explained to both Dr Maniam and Mrs Maniam and thereafter all documentation was executed by both parties."

29 It is contended that in the circumstances the solicitor falsely represented that to his knowledge both parties had executed all the documents in his presence. Also it is said that a lack of candour is demonstrated by the failure to disclose, at least prior to his letter to the Law Society of 28 July 1993, that after he had seen both Dr Maniam and Mrs Maniam sign at least one page of the documents he excused himself to attend to other interviews in his office. He went on to state that he "….did eventually see Dr Maniam after all documentation were executed."

30 For the Solicitor it was submitted that this ground involves an allegation that by this correspondence the solicitor intended to mislead the Law Society and that such a finding is not open. The Tribunal agrees. The impression gained from the Solicitor's oral evidence was that at the time that he wrote the letters of 17 June and 25 June 1993 he did not turn his mind to the question of his absence whilst the documents were signed, or to the significance thereof. The contents of these letters make plain that his response was directed to the question of the identity of Mrs Maniam and to the denial of liability for any claim she might make. In the witness box he strongly denied any intention to mislead as alleged. The existence of any such intention is inconsistent with the disclosure made in his letter to the Law Society of 28 July 1993 already referred to.

31 The Tribunal is satisfied that the Solicitor had no intention to mislead, and that he did not attempt to mislead, the Law Society in the correspondence. Accordingly, the correspondence does not evidence misconduct as alleged.

Ground 2: The Cheikho documents:

32 Ground 2 is in the following terms:

(1) On the 20 May 1994 the Solicitor swore a Family Court affidavit which was misleading in relation to the actual dealings with respect to the property known as 38 Morton Street, Lakemba.
(2) The Solicitor falsified documents in relation to that property and annexed same to his affidavit.

33 Particulars of the matters relied upon were contained in the Further Amended Information referred to above.

34 The events which gave rise to this ground arose from dealings in respect of a property at 38 Morton Street, Lakemba, New South Wales. The evidence establishes the following history:

34.1 On a date in about February 1987 the Solicitor prepared a Declaration of Trust at the request of his client Mohamad Cheikho ("Cheikho"). The declaration was to reflect the arrangement whereby Cheikho's four adult sons namely Abdul Kader Cheikho, Abdul Rahom Cheikho, Abdul Latif Cheikho and Adnan Cheikho (the "four sons") held the property for themselves and in trust for their brother Khaled Cheikho, who was then under the age of 18 years, as tenants in common in equal shares. In evidence was the Declaration of Trust dated 13 July 1997 signed by the four sons. The attestation clause in respect of each signature was not completed.
34.2 On a date in 1992, probably in March, the Solicitor prepared:

(i) a contract for the sale of the property in the form of the 1986 Edition Agreement for Sale of Land. The vendors were the four sons and the purchasers were those sons and Khaled Cheikho. The contract was dated 14 July 1987;
(ii) a form of statutory declaration for presentation to the Stamp Duties Office in respect of the contract referred to in sub-paragraph (i). The contract is referred to as dated 14 July 1987. The declaration states that it was made on 14 July 1987 and was signed by the four sons before the Solicitor;
(iii) a memorandum of mortgage in which the five sons are named as mortgagors and Cheikho and Amine Cheikho are named as mortgagees, purportedly to secure an advance of $300,000;
(iv) a caveat in which the four sons were named as the registered proprietors and Khaled Cheikho was named as the caveator. The interest was described as "…….purchaser under agreement for sale of land dated 14 July 1987". The form contains a statutory declaration in usual terms which was made by the Solicitor as solicitor for the caveator. It is dated 16 April but the year is omitted, although it is taken to be 1992. The form was lodged for registration on 22 April 1992.

34.3 On 20 May 1994 the Solicitor swore an affidavit which was filed in proceedings in the Family Court of Australia between Abdul Rahman Cheikho and Mona Cheikho, his wife. The affidavit contained a description of the transactions concerning the property and annexed a copy of each of the Declaration of Trust, the contract, the mortgage, and the caveat.
34.4 On 31 May 1994 the Solicitor gave evidence before His Honour Mr Justice Moss in the proceedings in the Family Court of Australia and he was cross-examined on the matters the subject of his affidavit.
34.5 On 5 October 2001 the Solicitor swore the affidavit which is Ex.6 in these proceedings before the Tribunal.

35 As to many of the particulars relied upon in support of Ground 2 the Solicitor has made admissions as follows:

35.1 That on 20 May 1994 he swore an affidavit that was false in that:

(a) at paragraph 11 he swore "At the same time (1987) I also prepared a contract for sale of land to reflect Khaled Cheikho's interest in the property", whereas he admitted under the oath that the said contract was not prepared until 1992; and
(b) that the contract annexed to his affidavit was dated July, 1987, whereas he admitted under oath that the contract was not prepared until 1992.

35.2 That he produced to the Stamp Duties Office a contract which he prepared in 1992 but backdated it to July 1987.
35.3 That he used a 1986 edition of the standard contract for sale to create the impression that the contract was entered into in 1987.
35.4 That he made a declaration to the Stamp Duties Office which was false in a particular in that he declared the relevant date to be July 1987 whereas in fact the document should properly have contained a date in 1992.
35.5 That the annexures and the matters deposed to in his affidavit were both incorrect and misleading. It was denied that he had any intention to mislead.

36 He also denied that in swearing the affidavit he intended to mislead and that he intentionally swore a false affidavit.

37 It is also noted that in his Reply in these proceedings the Solicitor made the following statement:

"12. The Respondent admits that the effect of his actions was to mislead the Stamp Duties Office and further admits that the purpose of such action was to circumvent what the Respondent perceived would be difficulty and delay in satisfying the Office of the Commissioner of Stamp Duties in relation to the 1987 transaction involving the creation of the Trust, but says that there was no avoidance of any duty properly payable as a result."

38 The Further Amended Application of Mona Cheikho in the Family Court of Australia is dated 15 December 1993. It is noted that the relief sought included a declaration that the mortgage from Cheikho and Amine Cheikho was a sham, and a further declaration that the property was beneficially owned by the four sons as tenants in common in equal shares, and an order that the transfer of the one fifth share of the interest in the property to Khaled Cheikho be set aside.

As to the affidavit sworn 20 May 1994:

39 In order to understand the issues relevant to the Solicitor's conduct in swearing the affidavit of 20 May 1994 (part Ex 5), it is appropriate to set out the relevant paragraphs:

“11. At the same time I also prepared a Contract for Sale of Land to reflect Khaled Cheikho’s interest in the property, a copy of the front page of same is annexed hereto and marked with the letter “B”.
12. The original Deed and Contract were given to Mr Mohamad Cheikho on settlement of the original purchase, and he said to me words to the effect that “I will keep these and stamp them myself.”
13. I was also instructed in or about February 1987 to prepare a mortgage with all 5 sons as mortgagors, and Mr Mohamad Cheikho and his wife, Amine Cheikho as mortgagees. Mr Mohamad Cheikho had said to words to the effect that “I want to make sure that my sons provide their sisters and brother with money when my wife and I die. This way they have to pay my estate $300,000 and Ali and my daughters will get something out of this purchase I have made for the others.”
14. A copy of the Mortgage is annexed hereto and is marked with the letter “C”. My signature appears on same as witness for the mortgagors.
15. Mr Mohamad Cheikho came to me in or about late March 1992, with the original Trust Deed and Contract for Sale of Land, and instructions to have Khaled Cheikho’s name placed on the title.
16. I looked at the Deed and Contract and reviewed the file and advised Mr Mohamad Cheikho a few days later as follows: “You have not stamped the Trust Deed that we have stamped for you, and you cannot stamp it now. We can still stamp the Contract, but it will incur a 100% fine on the stamp duty. I will stamp the Contract and I can also put a Caveat on the property to protect Khaled’s interest.”
17. I tended to the legal work necessary to do this and accordingly on 22nd April 1992, a Caveat was lodged by my firm, a copy of this Caveat is annexed hereto and marked with the letter “D”.”

40 On the admissions and the evidence it is clear that the contents of these paragraphs are false, and presented to the Court and those involved in the litigation a misleading account of the transactions described therein.

41 The Solicitor gave evidence before the Court on 31 May 1994. At the commencement of his evidence-in-chief he stated the changes he wished to make to the affidavit. As to paragraph 11, he stated that the contract and the deed of trust were not prepared at the same time, and that the contract was prepared approximately 2-3 weeks before it was stamped, some time between 1991 to 1992. As to paragraph 13, he stated that the instructions for the preparation of the mortgage "…..were not received until February 1992, not 1987".

42 In explanation for swearing the affidavit containing the erroneous information in paragraphs 11 and 13, the Solicitor says that it was drafted by an employed solicitor, Miss Di Bello. She presented him with a first draft which he read quickly during an interview with clients, and he requested some alterations be made. Some time later she presented him with another draft and confirmed that the requested alterations had been made. On this occasion, also, he was in conference with clients. He then swore the affidavit without reading it, giving it only a cursory look.

43 Shortly before giving evidence in Court he read the affidavit and discerned the matters to which he referred in his evidence-in-chief. In his letter to the Law Society of 6 March 1995 he acknowledged his carelessness, asserted he had no intention to mislead the court, and denied dishonesty. He accepted responsibility for the preparation and swearing of the affidavit. His account is consistent with that given by Miss Di Bello in her affidavit of 26 October 2001.

44 The Solicitor's evidence before the Court related to matters contained in the affidavit. What should not be overlooked are the matters omitted from the affidavit. It is to be expected that a complete and candid account of the transactions would have included an account of the circumstances in which the documents were created, and an explanation for the false entries, including dates, in them. In the circumstances, the failure to include this information concealed the truth which to some extent was uncovered during cross-examination. This failure, of itself, is adjudged to be a serious breach of the Solicitor's duty, possibly explicable by the almost complete lack of attention given to what was required of him.

45 Further comment is justified. In the circumstances it is difficult to accept the Solicitor’s contention that in swearing the affidavits he did not intend to mislead. The denial is only plausible if in fact he did not turn his mind at all to the contents of the affidavit and the use to which it would be put. But the evidence indicates that he did. As earlier noted, he read the first draft and requested alterations to be made. The following passage from the Court transcript (Tp.69) is also relevant:

"Q: You regarded it (the mortgage) as being a sham, that is to say, not having the effect on its face, you knew that?……That's correct, yes.
Q: And you knew that for a number of reasons, the first of which is that you knew from your instructions from Mr Mohamad Cheikho, that he had no interest, legal or beneficial, in the property at 38 Morton Street?…..Yes.
Q: Mr Shad, if I can go back to your original answer to my question which was: it was done to defeat or diminish Mona Cheikho's claim and you said: In part. I want to suggest to you, Mr Shad, that this purported mortgage was put together solely to defeat or diminish Mona Cheikho's claim?……It was not only Mona Cheikho; I understood that there were - the other children had also problems in their marriage, so…….
Q: So, all the other wives?….. All the wives and whoever were involved so, basically, to protect the Cheikho, I suppose, parents.
Q: And knowing that - I take it, Mr Shad, that was a view you had at the time you annexed that mortgage to your affidavit you swore in this court?…..Yes counsel.
Q: And it is, I suppose, axiomatic then, Mr Shad, that the talk in the mortgage of the advance of $300,000 and the terms of the repayment is also nonsense? It was not intended to have any effect other than to defeat the claim of Mona Cheikho and the other wives?….I'd say that'd be correct, counsel".

From the Tribunal transcript (T.p.33) is taken the following:

"Q: Well Mr Shad, do you now acknowledge that what you did in creating that mortgage, constituted fraud?
A: Yes I agree, Mr Beaumont, the only thing I was under instructions from Mr Cheikho. Unfortunately you've got to understand how the Middle Eastern people operate, I mean if we're talking fraud, the way you and I understand fraud, certainly that was not the intention but the father, he was the patriarch, he supplied the moneys, yes whilst we put the kids' names etc. ……..On paper it is easy to say fraud but it is the Middle Eastern or Lebanese way is a little bit different. The father is in charge of everything and basically, what he says goes, so the only explanation I can put it down to Sir.
Q: At the beginning of your answer you agreed with me that what constituted fraud, is that correct?
A: That's correct."

46 In the opinion of the Tribunal it is simply not plausible to say that at the time the Solicitor swore the affidavit he was not conscious that its contents and annexures were false and were intended to mislead the Court in furtherance of Cheikho’s scheme to defeat Mrs Mona Cheikho’s claim. The Tribunal rejects the Solicitor’s denial. In this context it may be noted that had the Solicitor’s denial of intention to mislead been accepted, the finding would have been that he swore the affidavit with reckless indifference to the truth or falsity of its contents and to his obligations to the Court and to his profession.

47 Whichever approach is taken the Tribunal is well satisfied that the conduct constitutes professional misconduct.

As to the documents:

48 The evidence and the admissions plainly prove that the Solicitor falsified documents in relation to the property, and annexed copies of them to his affidavit of 20 May 1994.

49 The Solicitor's purpose and intention in preparing those documents were issues before the Tribunal. There was evidence of the circumstances in which they were created.

49.1 The contract, stamp duty declaration, and caveat:

As has been noted, the Solicitor stated in his Reply that the purpose was to circumvent what he perceived would be difficulty and delay in satisfying the Stamp Duties Office in relation to the 1987 transaction being the creation of the trust. In his affidavit (Ex.6) he said that the purpose for the preparation of the contract was to bring Khalid Cheikho onto the title to, in effect, perfect the intention of the trust. Cheikho had insisted that the contract be dated the same day as the declaration of trust and, as the Solicitor explained in his evidence before the Family Law Court (T.p.62) "they were the instructions given and all we were doing was basically putting the same date as when the trust was supposedly created".

He accepted that the intention in the preparation of the contract was to give the uninformed reader the impression that the transaction had taken place on 14 July 1987 and that his purpose in the preparation of all the documents was to effect Cheikho's instructions to ensure that Khalid's share was protected against claims which might be brought by the said wives or by anybody else.

The other documents were prepared in accordance with those instructions. The Solicitor, at this time, did not know when the trust declaration had been signed, or whether the sum of $75,000.00 referred to in the various documents had been, or would be, in fact paid. His evidence was that at that time (March 1992) he did not know of any family law proceedings although Cheikho had told him that his sons were having problems with their respective wives.

Having regard to the whole of the evidence, the Tribunal is satisfied that when the documents were prepared in March 1992 the Solicitor did not know when, in fact, the interest under the Declaration of Trust was created and finds that his purpose in the preparation of the falsified documents was to give effect to his client's instructions to protect the property interests of his sons, and to defeat future competing claimants including one or more of the relevant wives.

As it happened, of course, these documents were employed for this purpose through the Solicitor’s affidavit of 20 May, 1994.

49.2 The mortgage:

The Solicitor gave evidence as to the purpose of the mortgage both in the Court and before the Tribunal.

It is alleged that the Solicitor prepared the mortgage, knowing it to be a sham, for the purpose of defeating or minimising the claim of Mona Cheikho and the other wives. The Solicitor denied the allegation.

The mortgage was prepared at the same time as the other documents. Its purpose was also to secure the property against claimants, but in this case by a document which represented that Cheikho and his wife had an interest in it. The circumstances are explained in the Solicitor's letter to the Law Society dated 6 March 1995 in this way:


"In 1992 we were approached by Mohamad Cheikho who advised the writer the he was concerned about the future as his eldest son Ali (who was not included in that original purchase) had recently divorced and he wanted to ensure that his son Khaled was protected and also that he and his wife also received some kind of protection in case something happened in the future."

50 The Tribunal finds that the underlying intent behind the preparation of the all the documents was to protect Cheikho and his sons from claims upon the property. To achieve this the contract, stamp duty declaration, and caveat were falsified so as to represent to the world that Khaled held a one fifth interest in the property as at 14 July 1987. The mortgage was falsified to represent that all five sons owned the property and had mortgaged it to Cheikho and his wife to secure an interest-free loan of $300,000 for 10 years.

51 On behalf of the Solicitor submissions were made in these terms:

"74. Mr Shad drew up the mortgage on the basis of instructions from Mr Cheikho on the basis of his then claimed interest in the property. Mr Shad did not hold out any prospects that such mortgage would have priority over any other interest in the property, or that it would stand in the way of any claim under the Family Law Act 1975 by any estranged spouse of his children.
77. Mr Shad therefore complied with the instructions of his client. His personal belief in the enforceability of the mortgage instrument is irrelevant. The subject matter of the mortgage could be described as contentious, or even open to challenge. However, the creation of that instrument did not amount to fraud, being active dishonesty on the part of Mr Shad. The fact that he knew that Mr Cheikho was concerned to protect his claimed interest from the potential claims of some of his daughters-in-law under the Family Law Act did not make his conduct fraudulent."

52 The history and findings already stated demonstrate that these submissions lack substance and must be rejected. The truth is that the Solicitor contrived the documents in the expectation that they would be relied upon, or understood, to represent that Khalid held a one fifth interest in the property on and from 14 July 1987, and that Cheikho and his wife held an interest in the property as mortgagees. Although there can be no objection to a solicitor enabling a person to take legitimate steps to protect an interest in property against competing claims it can never be legitimate to attempt to protect a client's interests by the creation and use of documents which are false. In this case he departed entirely from the standards of his profession in yielding to his client’s instructions. In so doing, his conduct was disgraceful.

53 Accordingly, and with regard to particulars 5, 7 and 8 to Ground 2, the Tribunal is well satisfied, and finds, that the Solicitor attempted to mislead the Court into believing that Annexure "C" to his affidavit of 20 May 1994, being the mortgage, was brought into existence in 1987 whereas it was not prepared until 1992, and that the mortgage was so annexed knowing it to be a sham, and in furtherance of his client's intention to defeat the claim of Mona Cheikho and the other wives. It is also found that the mortgage was brought into existence by the Solicitor to attempt to defeat or minimise Mrs. Mona Cheikho's property entitlement.

54 The Tribunal is satisfied that the conduct the subject of Ground 2 has been proved. There can be no doubt that it constitutes professional misconduct.

The Solicitor:

55 The Solicitor has been in continuous practice since his admission on 6 February 1976. He has been a sole practitioner for the past 25 years and has established a successful practice in the fields of conveyancing, estates and wills. He currently employs a staff of 27 people. Since the Cheikho matter it has been his firm's policy not to become involved in litigation. His practice is a busy one. He usually works a 12 hour day during which he conducts about 20-30 interviews.

56 Before the Tribunal are affidavits from some 19 deponents including solicitors, barristers, senior churchmen, a law agent, and the principal of a real estate agency.

57 As submitted on his behalf, the evidence from his professional colleagues is that the Solicitor is a hardworking person, regarded as a man of honesty and integrity. All expressed the view that the subject conduct is out of character. Several deponents had been employed by him as solicitors; they speak of his sound professional conduct in the course of practice and of his high integrity. It is clear that the Solicitor over a number of years has established a good reputation as a generous and charitable person. Bishop Issam Darwish, the Eparch of the Melkite Catholic Eparchy of Australia and New Zealand, speaks of the charitable work which he has done for that church and as to his strong Christian beliefs. He observes that he is a person who will give support without regard to colour, race or creed, the more so if that person is needy or poor. He also speaks of the Solicitor’s devotion to his family and to the respect accorded him by many. Monsignor Michael Berbari of The Syrian Catholic Church of Australasia also swears to the charitable activities involving church affairs in which the Solicitor is, and has been, involved.

58 The totality of this evidence supports the submission made on the Solicitor's behalf that he is a hard working and honest practitioner who enjoys wide respect, and has done so for many years. Importantly, the evidence indicates that there is no likely threat of repetition of the subject conduct. The Law Society accepts that since the time of the events the subject of these proceedings the Solicitor has practiced without adverse incident.

59 Before the Tribunal, the Solicitor readily acknowledged the foolishness of his conduct. The effect of his evidence was that for a long time he has regretted the matters and will continue to do so for the rest of his life. The Tribunal has no reason to doubt his sincerity, which is entirely consistent with his character and reputation as described in the affidavit evidence.

The orders to be made:

60 The determination of what orders should be made requires an assessment of the seriousness of what was done and the effect of it upon the Solicitor's fitness to continue to practice.

61 As already stated (paras 24, 47 and 54) the Tribunal has found that the Solicitor is guilty of professional misconduct on each of Grounds 1 and 2 as set out in the Further Amended Information.

62 Relevant principles are stated in The Law Society of New South Wales –v- Foreman (1994) 34NSWLR408 @ 470 per Giles A-JA:

"The jurisdiction of the Tribunal and of this Court in disciplinary matters is exercised to protect the public, not to punish the solicitor. The object of protection of the public may require that a legal practitioner be removed from the roll, be suspended from practice, or only be permitted to practice under particular circumstances, where the practitioner is not fit to be held out to be entrusted, at all, for a time, or without qualification, with the heavy responsibilities attendant upon the office. The public is protected by ensuring that those unfit to practice do not continue to hold themselves out as fit to practice. But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct, and deterring others who might be tempted to fall short of the high standards required of them. And the public, and professional colleagues who practice in the public interest, must be able to repose confidence in legal practitioners, so an element in deterrents is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with."

63 Also, with particular relevance in this case to the passage of time between the conduct complained of, the investigation, and the hearing is the passage from Johns -v- The Law Society of New South Wales (1982) 2NSWLR1 @ 9 per Moffitt, P:

"Where there is misconduct prima facie requiring at that time a striking off order on the basis of then unfitness, the substance of the question whether when the matter comes for decision some years later is not dissimilar to the question arising upon an application for re-admission, namely whether it appears that there is material before the Court to lead it to conclude that the past proved unfitness has been changed to fitness. The ultimate onus is on the Law Society, but where there is admitted professional misconduct and a claim of rehabilitation or of fitness replacing unfitness, the Court will look to what evidence there is to establish this change and will expect he who claims there is such a change to point to the evidence that there is."

64 Guidance is also taken from statements in the majority judgement in ex parte Lenehan ((1948) 77CLR403 @ 422, 425).

65 Recognising that essentially its jurisdiction in relation to the discipline of solicitors is protective rather than punitive, the critical question for the Tribunal in this case is whether the evidence demonstrates at the present time that the Solicitor is unfit to practice or should be permitted to continue to practice.

66 The findings made as to the Solicitor's conduct would have justified an order that his name be struck from the roll had the complaint been heard and determined soon after the events took place. However, the Maniam incident took place over 12 years ago, and the Cheikho incident was between 8 and 10 years ago, since which the Solicitor has practiced with an unblemished record.

67 It may be remarked that the conduct complained of in each case was apparently not motivated by desire for self-advancement, or for personal gain, or by greed.

68 In reaching its decision as to the appropriate orders to be made, the Tribunal has had regard to the principles referred to above, and to their application in cases such as Fraser –v- The Law Society of New South Wales (CA40780/91, unreported, 7 August 1992).

69 As has already been observed, the conduct in which the Solicitor engaged was grave professional misconduct which, by any standard, was disgraceful. The Tribunal is, however, satisfied that he recognises its gravity and has been conscious of it for many years. It is also satisfied that there is no real risk of harm to the public or to the administration of justice. In its view the misconduct does not now require the removal of his name from the roll. The evidence as to his character, reputation, integrity, and overall fitness to continue practising has been referred to and justifies the Tribunal's confidence that the Solicitor will not err in the same way again.

70 The appropriate determination of this case involves the imposition of a fine which is a means whereby public confidence in the legal system can be maintained. (cf: Fraser (supra, per Cripps, JA @ 9). The Tribunal's strong disapproval of the Solicitor's conduct will be sufficiently marked by a significant fine, and the publication of these findings. This result may deter others from like activity and may also ensure that the Solicitor will continue in practice with careful regard to his professional duties and standards.

Orders:

1. That the Solicitor pay a fine of $35,000, such fine to be paid within eight (8) weeks of this date; and

2. That the Solicitor pay the costs of the Law Society of NSW of these proceedings as agreed or assessed.