Law Society of New South Wales v Whitting

[2005] NSWADT 150

CITATION:	Law Society of New South Wales v Whitting [2005] NSWADT 150
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the Law Society of New South Wales RESPONDENT William John Whitting
FILE NUMBER:	042034
HEARING DATES:	24/05/2005
SUBMISSIONS CLOSED:	05/24/2005
DATE OF DECISION:	07/05/2005
BEFORE:	Fox R - Judicial Member; Riordan M - Judicial Member; Kirkby E - Non Judicial Member
APPLICATION:	Professional Misconduct - falsely attesting signatures
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Demetrios (1993) 3 LPDR 3 Frazer v The Council of the Law Society of New South Wales [1992] NSW LST 6 Ian Burnham Mitchell (1992) 1 LPDR 6 Law Society v Lesley Young 1999 NSW ADT 78 Rigelsford (1995) 1 LPDR 1 Thomas Hugh Walker (1995) 2 LPDR 17 Twomey (1992) 6 LPDR 4
REPRESENTATION:	P Boyd, solicitor G Walsh, solicitor
ORDERS:	ORDERS MADE 24 MAY 2005: 1. Pursuant to Section 171 C 3 (e) that the Solicitor be reprimanded; 2. Pursuant to Section 171 C 3 (d) that the Solicitor be fined $5,000.00; 3. Pursuant to Section 171 C 2 (b) that the Solicitor's practice be inspected at six (6) monthly intervals for a period of five (5) years (first inspection November 2005, last inspection May 2010) by Frances Joseph Daly, or another Senior Solicitor appointed by the Law Society, and, pursuant to Section 171 C 2 (c) that the Solicitor seek the advice of that inspecting solicitor in relation to the management of his files and practice, all at the cost of the Solicitor; 4. The Solicitor pay the costs of the Law Society noted to have been agreed at $2,000.00; 5.The fine and the costs be paid within one (1) year of the date hereof; 6. Liberty to apply in case of default.

REASONS FOR DECISION

1 The Council of the Law Society, by information filed 1 December 2004, alleges that the Solicitor was guilty of professional misconduct in that he procured his wife to affix her signature to a pair of Wills as witness, falsely asserting that she was present when the testators and the Solicitor signed them. The Solicitor conceded the allegations against him, and conceded that they amounted to Professional Misconduct within Section 127 of the Legal Profession Act 1987.

2 The Solicitor, who was admitted in 1968, has always practiced in and around Corrimal. Since October 2002 he has practiced from home, not far from Corrimal. He now often travels to clients to interview them. He had taken instructions very early in July 2003 to draw Wills for the clients in question, but apparently had not produced the documents with the speed which the client expected and was under some pressure when he agreed to have the documents ready for signature at the clients’ home on 17 July 2003.

3 The Solicitor has suffered from poor health. In early July 2003 he was particularly stressed because recent blood tests had shown sufficiently high PSA levels to indicate that he almost certainly had prostate cancer. A biopsy had been carried out and he was awaiting the results. The clear implication of the evidence in this regard is that the Solicitor did not have his mind fully on his work.

4 Nevertheless, the clients were pressing and the Solicitor’s evidence was that he had omitted to note the reason for the appointment in his diary. So, when he came to leave for the appointment, he realised that his wife was unable to come with him to be a witness, that being his usual practice. The Solicitor attended the clients, had the Wills approved and signed and witnessed the signature. The Solicitor called upon no other witness at the time of signing, but instead that evening had his wife sign as second witness.

5 The following day the Solicitor was advised that his biopsy had proved the diagnosis of prostate cancer and he was shortly thereafter received brachitherapy and then radiotherapy at the St George Hospital. This was so successful that his present PSA levels are down to 0.05.

6 It should be noted that the Solicitor’s father died of prostate cancer and in 1984 the Solicitor had been successfully treated for testicular cancer. Prior to that, in 1980 the Solicitor had been diagnosed with heart disease that was sufficiently serious to require quadruple by-pass surgery and his evidence was that heart disease has subsequently troubled him.

7 These matters were raised in the Solicitor’s defence and explain the Solicitor’s conduct in July of 2003 and subsequently, and add credibility to his assertion that what he did on this occasion was an isolated incident.

8 Mr Walsh, who appeared for the Solicitor, properly described what the Solicitor did as “very, very serious”. The fact that a Solicitor witnesses a Will proclaims the propriety of the execution of the document. Viewed in this light, the Solicitor’s actions amount to an assault on one of the foundation stones of professional practice.

9 Indeed, without the mitigating factor of the Solicitor’s state of health at the time, the question of a full protective order might well have arisen.

10 We were referred to prior decisions of this Tribunal (or its predecessor) where solicitors had falsely asserted that documents had been signed in their presence, or falsely asserted that they had personally explained documents to clients. Often in these matters there was financial loss to a party who sought to rely on the document, which resulted in severe financial consequences for the solicitor.

11 In that group of cases the matter of Frazer v The Council of the Law Society of New South Wales [1992] NSW LST 6 is of particular relevance. That was a decision by the predecessor of this Tribunal, which was reversed by the New South Wales Court of Appeal. In that matter the solicitor falsely asserted that he had personally explained mortgage documents. Finding that conduct to be fraudulent, the Tribunal struck the solicitor off the rolls. However, the Court of Appeal noting that the Solicitor had not practiced for more than seven (7) months as a result of the Tribunal’s order, upheld the appeal and fined the solicitor $7,000.00. Each Member of that Court asserted their view that the solicitor had been guilty of a temporary lapse, and that his actions were not evidence of a fatal character defect.

12 We have come to that same conclusion in relation to the Solicitor’s actions in this matter.

13 It is appropriate to again note that the Tribunal’s primary duty is to protect the public and not to punish those who it finds guilty of professional misconduct. It follows that the quantity of the fine is simply an indication of the seriousness of the conduct.

14 There have been several instances where this Tribunal has imposed fines of $4,000.00 on solicitors who falsely asserted witness (Twomey (1992) 6 LPDR 4; Demetrios (1993) 3 LPDR 3; Rigelsford (1995) 1 LPDR 1).

15 In the matter of Ian Burnham Mitchell (1992) 1 LPDR 6, a fine of $10,000.00 was imposed on a solicitor who ‘over a long period of time consistently signed his name to a series of documents, in execution of attestation statements in the form “signed in my presence by the mortgagor who are personally known to me”, in circumstances in which two of the purported signatories were deceased and the other signatories did not sign in his presence’.

16 A fine of $4,000.00 was imposed on Thomas Hugh Walker (1995) 2 LPDR 17, a Solicitor who procured his employed Solicitor to falsely witness and certify a mortgage.

17 Lastly, we see relevance in the matter of Law Society v Lesley Young 1999 NSW ADT 78, where the solicitor had committed two (2) separate acts of forging Letters of Administration, but was otherwise of high repute and well regarded, and was fined a total of $14,000.00 and ordered to pay substantial costs.

18 In view of those decisions we are satisfied that a fine of $5,000.00 is appropriate in this matter. That amount, taken together with the costs of the Law Society, which will amount to $2,000.00, will place an appropriately severe burden upon the Solicitor, he now being a man of modest means and very modest income. In recognition of this general circumstances we think it appropriate to allow him a year to pay both the fine and the costs.

19 Lastly, in view of the state of health of the Solicitor and in view of other matters disclosed in the hearing, but not appropriate for publication, we see merit and public benefit in the Solicitor being the subject of regular inspection by Frances Joseph Daly, or another similarly experienced Senior Solicitor. We note that the Solicitor did, through Mr Walsh, indicate that he felt that this would be an appropriate course for him.

Orders

1.Pursuant to Section 171 C 3 (e) that the Solicitor be reprimanded

2.Pursuant to Section 171 C 3 (d) that the Solicitor be fined $5,000.00

3.Pursuant to Section 171 C 2 (b) that the Solicitor’s practice be inspected at six (6) monthly intervals for a period of five (5) years (first inspection November 2005, last inspection May 2010) by Frances Joseph Daly, or another Senior Solicitor appointed by the Law Society, and, pursuant to Section 171 C 2 (c) that the Solicitor seek the advice of that inspecting solicitor in relation to the management of his files and practice, all at the cost of the Solicitor.

4.The Solicitor pay the costs of the Law Society noted to have been agreed at $2,000.00.

5.The fine and the costs be paid within one (1) year of the date hereof.

6.Liberty to apply in case of default.