Legal Practitioners Conduct Board v Rowe
[2012] SASCFC 144
•21 December 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
LEGAL PRACTITIONERS CONDUCT BOARD v ROWE
[2012] SASCFC 144
Judgment of The Full Court
(The Honourable Justice White, The Honourable Justice Peek and The Honourable Justice Blue)
21 December 2012
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT - FALSIFICATION OF DOCUMENTS AND TRANSACTIONS
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - ORDERS
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES - CANCELLATION AND SUSPENSION
Application by the Legal Practitioners Conduct Board for the name of the respondent to be struck off the roll of legal practitioners - the respondent had arranged for her client to sign blank pages so that his affidavit could be printed on to them without his having to attend to sign the document - the respondent accepted that she was, and the Legal Practitioners Disciplinary Tribunal found the respondent, guilty of unprofessional conduct.
Whether the name of the respondent should be struck off the roll of legal practitioners - whether the respondent's immediate and frank disclosure of her unprofessional conduct and her previous professional history rendered a lesser sanction appropriate.
Held (per Peek and Blue JJ): Although this was a serious case of unprofessional conduct, the action was not taken for financial gain, the contents of the purported affidavit were complete and accurate in accordance with the client's instructions, the respondent made immediate and frank disclosure of her unprofessional conduct and the Court in the event was not misled. The respondent had voluntarily reliquished her practising certificate and there was impressive evidence as to her character. The respondent's non-opposition to an order striking her name off the roll of legal practitioners confirmed her contrition and her acceptance of the seriousness of her conduct. In all of the circumstances, the appropriate order is the respondent to be precluded from holding, or applying for, a practising certificate for a total of three years (at [65]-[85]).
Held (per White J dissenting): The conduct was dishonest and involved the client in that dishonesty. The conduct was intended to mislead the Court. The practitioner’s consent to an order striking her name from the roll makes it unnecessary to consider whether some other disciplinary order may have been sufficient. The name of the practitioner should be struck off the roll of legal practitioners (at [31]-[39]).
Legal Practitioners Act 1981 (SA) ss 5, 82(6), 89(2); Family Law Act 1975 (Cth); Federal Magistrates Act 1999 (Cth) s 59; Oaths Act 1936 (SA) s 30; Federal Magistrates Court Rules 2001 (Cth) s 15.26, referred to.
Law Society of South Australia v Murphy (1999) 201 LSJS 456, applied.
Re Mirza [1991] SASC 3171 and [1996] SASC 5577, distinguished.
English v Legal Practitioners Complaints Committee (1986) 41 SASR 217; Re McLardie [1998] 3 LPDR 23; Law Society of New South Wales v McElvenny [2002] NSWADT 166; Legal Services Commissioner v Flynn [2007] NSWADT 186, discussed.
Legal Practitioners Conduct Board v Nicholson (2006) 243 LSJS 293; Legal Practitioners Conduct Board v Kerin (2006) 246 LSJS 371; Legal Practitioners Conduct Board v Clisby [2012] SASCFC 43; Dixon v Legal Practice Board of Western Australia [2012] WASC 79; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27; Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454; The Council of the Queensland Law Society Inc v Wright [2001] QCA 58, considered.
LEGAL PRACTITIONERS CONDUCT BOARD v ROWE
[2012] SASCFC 144Full Court: White, Peek and Blue JJ
WHITE J. The Legal Practitioners Conduct Board seeks an order from the Court under s 89(2) of the Legal Practitioners Act 1981 (SA) striking the name of Barbara Dorothy Rowe (the practitioner) off the roll of legal practitioners.
The Board’s application arises out of the practitioner’s conduct in relation to an affidavit to be used in the Federal Magistrates Court (FMC). The practitioner accepted from a client multiple signed blank pages on which she later printed the content of an affidavit in the client’s name. Later still, she filed that “affidavit”, or caused it to be filed, in the FMC for use in proceedings in that Court.
Arising out of this conduct, the Legal Practitioners Disciplinary Tribunal found the practitioner guilty on two charges of unprofessional conduct. These were, first, that as a Commissioner for taking affidavits she had signed, completed and dated a purported affidavit of the client in circumstances in which the client had not attested to or signed the affidavit; and, secondly, that she had filed, or caused to be filed, the purported affidavit in the FMC knowing that it and the other party to the proceedings would, or would be entitled to, rely upon the document as the trial affidavit of the client.
The Tribunal recommended the commencement of proceedings in this Court against the practitioner. She consents to the striking off order.
Background
The practitioner is very experienced, having been admitted to practice in 1971. Generally she has practised in the family law jurisdiction.
In late 2006, the practitioner accepted instructions to act for a client in the FMC in relation to a disputed property division. After unsuccessful attempts at a conciliated resolution to the dispute, the matter was listed for hearing on 31 May 2007 at Broken Hill. Each party was directed to file and serve in advance of the hearing an affidavit containing the substance of their evidence-in-chief.
The practitioner experienced some difficulties in obtaining instructions from the client, in part because he resided in Broken Hill and she practised in Adelaide. This meant that the client was not always readily available to the practitioner to provide instructions. On some occasions the practitioner saw him personally and on other occasions took instructions by telephone.
In order to prepare the client’s affidavit for the hearing on Thursday 31 May 2007, the practitioner had a consultation with him at her Prospect office on Sunday 27 May. The Tribunal accepted that in May the practitioner was under considerable pressure as a sole practitioner. Her practice had become disorganised and, whether by oversight or otherwise, she had not had the client make his affidavit by the date required by the FMC.
The consultation on 27 May was lengthy, occupying most of the day. The practitioner had prepared a draft affidavit in advance of the meeting based on the instructions she had received to that time. However, it soon became apparent that it was incomplete in some respects and in other respects did not accord with the client’s further instructions. The practitioner took detailed instructions to complete the draft. Because it was a Sunday, the practitioner did not have staff available to type the amended draft affidavit then and there. She asked the client to return on the following day to sign the typed document. He was unable to do so as he needed to return to Broken Hill to meet employment commitments. The practitioner was concerned by the prospect of still further delay in filing and serving the affidavit in time for the hearing to take place on the following Thursday.
Towards the end of the consultation, the client signed more than 30 blank pieces of paper at the foot of each page.
There was some discussion in the Tribunal as to whether it was the practitioner or the client who first suggested that the practitioner use the signed blank pages in the preparation of the client’s affidavit. The client claimed that it was the practitioner. Counsel for the practitioner, on the other hand, maintained that it was the client who had suggested this course of action and that the practitioner, in the pressure of the circumstances, had gone along with it. Counsel for the Board took the view that it was not necessary for the Tribunal to resolve that issue but acknowledged that the “preponderance of evidence” favoured that of the practitioner.
The Tribunal did not hear any oral evidence on this issue but, on the papers, concluded:
[26]To the extent that it is necessary, the Tribunal resolves this conflict in favour of the practitioner.
It seems implicit in the Tribunal’s findings that the client, when signing at the foot of the blank pages, also entered his signature in the appropriate box on the panel form face page for an FMC affidavit. It also seems to be implicit in the finding that both the practitioner and the client intended at the time that she would use the signed blank pages in preparing an affidavit in the client’s name.
The practitioner proceeded in the way contemplated. After settling a draft of the affidavit on 28 May, she had the content of the affidavit to be made by the client printed on to the blank pages containing his signature. It is not clear whether this occurred on 28 May or on one of the following days. The practitioner then signed and dated each page herself giving the appearance that she had witnessed the client’s execution of the affidavit.
The deception was revealed when, immediately before the hearing in Broken Hill on 31 May, Mr McQuade, counsel for the client, began checking relevant aspects of the affidavit with him. The client then informed Mr McQuade that he had not signed the affidavit in the proper way and explained the circumstances of its making.
On a query from Mr McQuade, the practitioner immediately confirmed the essential elements of the client’s account. She then offered to withdraw as solicitor and to pay on his behalf the costs of the adjournment of the FMC proceedings which at that time seemed inevitable.
The practitioner thought that she had herself filed the document in the Adelaide Registry of the FMC and had then provided a copy to Mr McQuade. However, this recollection does not appear to be accurate. Mr McQuade’s letter of report to the practitioner of 4 June 2007 includes the following:
I thank you for your instructions [herein] and confirm that in accordance therewith I attended upon the Trial of this matter in the [FMC] at Broken Hill on the 31st day of May 2007 before Federal Magistrate Brewster.
Ms Ross appeared for the husband.
Upon arrival at Court I filed the original copy of your client’s Trial affidavit and his financial statement at Court and asked for same to be forwarded to the Federal Magistrate. Upon learning of the circumstances in which the document had been produced, I sought leave to uplift the Trial affidavit from the Court file and using my brief copy arranged for your client to re‑swear the affidavit with appropriate amendments made and initialled by him.
Initially I was of the view that the preparation of this matter had been so compromised that there was no alternative but to seek an adjournment of the Trial in the best interests of your client. I confirm that I spoke with you regarding this matter and that you instructed me that you would consent to an order for indemnity costs being made against you.
Federal Magistrate Brewster was however of the view that the Trial should proceed and gave Ms Ross time to take instructions regarding your client’s re-sworn affidavit.
…
This letter, which is virtually contemporaneous with the events of 31 May 2007, indicates that, contrary to the practitioner’s recollection, she did give the original of the client’s affidavit to Mr McQuade, that he filed the original in the FMC Registry at Broken Hill, and that he asked for a copy of it to be provided to the Federal Magistrate. A copy of the affidavit obtained from the FMC shows that it was re‑sworn before Mr McQuade in a manner which is consistent with his description.
Mr McQuade’s letter does not indicate whether he also provided a copy of the affidavit to counsel acting for the client’s former wife. It seems, however, a reasonable inference that either the practitioner or Mr McQuade must, at some stage, have provided a copy of the affidavit to the other side, in anticipation of its use in the hearing in the FMC.
Formal Requirements for an Affidavit
Affidavits are important legal documents. They are formal written documents made by a deponent swearing or affirming that the contents are true. It is common nowadays for affidavits to be used as a convenient means of putting evidence before a court and, in many proceedings, may comprise the entirety of a witness’ evidence-in-chief. The witness may be cross-examined on an affidavit on the basis that it is equivalent to the sworn evidence which he or she would otherwise have given orally.
Because of this, the manner of execution of an affidavit is important. As Johnston J observed in English v The Legal Practitioners Complaints Committee[1], the deponent takes the oath or makes the affirmation as an objective sign of binding his or her conscience to the accuracy of the contents of the affidavit.[2] With a view to ensuring that affidavits are made with due regard to these matters, it is common for legislation or Rules of Court to limit those who can take an affidavit to those who understand these requirements and who can be trusted to ensure compliance with them.[3] Those persons are also expected to take an active role in the process of administering an oath or taking an affirmation.[4]
[1] [1985] SASC 9286.
[2] Ibid at 5.
[3] Section 30 of the Oaths Act 1936 (SA) makes it an offence, punishable by imprisonment for up to one year or by fine, for an unauthorised person to take an affidavit.
[4] English v The Legal Practitioners Complaints Committee [1985] SASC 9286 at 5.
Section 59 of the Federal Magistrates Act 1999 (Cth) identifies the persons before whom an affidavit to be used in a proceeding in the FMC may be sworn or affirmed. It is implicit in s 59(1) that any such affidavit must be either sworn or affirmed.
Rule 15.26 of the Federal Magistrates Court Rules 2001 contains a number of provisions concerning the making of an affidavit.
(1) The person making the affidavit must sign each page of the affidavit.
Note For the persons before whom an affidavit may be made: see section 59 of the Act.
(2) The affidavit must:
(a) contain a jurat including:
(i) the full name of the person making the affidavit; and
(ii) whether the affidavit is sworn or affirmed; and
(iii) the day and place the person makes the affidavit; and
(iv)the full name and capacity of the person before whom the affidavit is made; and
(b)be signed by the person making the affidavit in the presence of the person before whom it is made; and
(c) then be signed by the person before whom it is made.
Note A jurat is a clause placed at the end of an affidavit stating the time, place and officer before whom the affidavit is made.
(3) Any interlineation, erasure or other alteration in the affidavit must be initialled by the person making the affidavit and the person before whom the affidavit is made.
Amongst other things, r 15.26 requires a deponent to sign each page of the affidavit; requires the jurat to include the day and place at which the deponent makes the affidavit; requires the jurat to include the full name and capacity of the person before whom the affidavit is made; and, importantly for present purposes, requires the affidavit to be signed by the deponent in the presence of the person before whom it is made and that it then be signed by that person.
The “affidavit” of the client prepared by the practitioner breached a number of these requirements. The client did not swear to or affirm the contents of the affidavit thereby committing his conscience to the truth and accuracy of its contents; the client did not sign the affidavit in the presence of the practitioner and, although the practitioner signed the document herself, she did not do so in the capacity of the person before whom the affidavit had been made.
The document prepared by the practitioner and provided for filing in the FMC was positively misleading and deceptive. Contrary to the statement attributed to the client at the commencement of the document, he did not “make oath and say” the matters in the document. He had not signed each page to indicate the authenticity of that page as his affidavit. The practitioner had not administered any oath at all and falsely stated that she was the person before whom the affidavit had been made. Further still, the practitioner engaged in the preparation of a document purporting to be an affidavit knowing that it would deceive the FMC and her client’s former wife into thinking that it contained statements to which the client had, by his oath, committed his conscience.
Consideration
The practitioner’s conduct was undoubtedly unprofessional conduct of a serious kind. It comprised several elements:
(a)an agreement with the client to participate in the preparation of a document which was to be passed off as a properly executed affidavit and therefore involved the client in dishonest conduct;
(b)the carrying out of that agreement;
(c)entering her own signature on the affidavit so as to indicate that it had been properly sworn when she had not witnessed the affidavit at all; and
(d)the presentation of the document to the FMC through counsel with the intention that that Court should, without enquiry, accept that it was a properly sworn affidavit.
Plainly this was conduct involving a “substantial … failure to meet the standard of conduct observed by competent legal practitioners of good repute”.[5] The conduct was dishonest and, even though at the client’s instigation, involved the client in that dishonesty. The practitioner intended that the FMC should be misled into proceeding on the basis that the affidavit had been made in the manner required by its Rules.
[5] Legal Practitioners Act 1981 (SA), s 5(1) (Definition of unprofessional conduct).
I note, however, that the practitioner did not intend that the affidavit should misstate the client’s evidence-in-chief. Counsel for the Board accepted that the practitioner had believed at relevant times that the “affidavit” did record accurately the evidence which the client would give.
The practitioner had an opportunity to reflect on the wrongfulness of her conduct between Sunday 27 May and the time when, on the next day or so, she printed the body of the client’s affidavit onto the pre‑signed pages and purported to execute it as a witness. Despite that opportunity, the practitioner persisted with the conduct. This seems inconsistent with the conduct resulting from a momentary error of judgment. It also seems that the practitioner engaged in the conduct for the purpose of furthering her own interests, ie, in an effort to avoid the criticism which she foreshadowed would be made by the FMC because of the delay in providing the affidavit.
The deception which the practitioner sought to work on the FMC and the client’s former spouse had the potential both to abort the FMC proceedings on 31 May 2007 and to undermine her own client’s credibility in those proceedings.
For the reasons given earlier, it is of the utmost importance that Courts be able to rely on honest conduct by practitioners in relation to affidavits. The observation of Mahoney JA in Law Society of New South Wales v Foreman is pertinent in this context:[6]
It is also necessary that the courts be able to place reliance upon what practitioners say and do. The administration of justice would proceed more slowly and with greater cost if the courts before whom a solicitor practised felt it necessary to check the accuracy of what the solicitor had said to it. … If, as in this case, an affidavit of discovery is made by a solicitor and she has, in the past, tendered a false affidavit or falsified a true one, the court may find it necessary to consider how far it can assume that the affidavit of discovery can be relied upon. If what the solicitor has done is such that the court will hesitate before acting upon what the solicitor has said, that is, in my opinion, an important matter to be taken into account.[7]
[6] (1994) 34 NSWLR 408.
[7] Ibid at 445-6. The importance which the Courts interstate attach to a practitioner’s responsibilities in relation to affidavits is also seen in The Council of the Queensland Law Society Inc v Wright [2001] QCA 58; Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27; and Dixon v Legal Practice Board of Western Australia [2012] WASC 79, although each of these cases involved practitioners who had made affidavits which were knowingly false.
The pressures to which the practitioner was subject as a sole practitioner help explain her conduct. This Court has previously recognised that many sole practitioners lack some of the professional support systems which are more readily available to those who practise in firms. This can lead to additional stresses.[8] As I say, those circumstances help to explain the practitioner’s conduct in the present case, but they do not mitigate its seriousness.
[8] Legal Practitioners Conduct Board v Hay [2001] SASC 322 at [65]; (2001) 83 SASR 454 at 466.
The practitioner was admitted in 1971 and has practised continuously since that time. Apart from one blemish, she has been a practitioner of good standing throughout that period and has engaged actively in various forms of community work.
After May 2007, the practitioner continued in various forms of legal practice until November 2010. She then commenced a form of employment which did not require a practising certificate. That employment has now ceased.
The practitioner did not renew her practising certificate in June 2011, nor again in June 2012. The Court was informed that she is presently looking for forms of employment which will not require her to have a practising certificate, but the possibility of her requiring such a certificate in the future cannot be overlooked.
The principle upon which the Court acts in matters of the present kind was stated by Doyle CJ in Law Society of South Australia v Murphy:[9]
In dealing with a charge of unprofessional conduct, the Court acts in the public interest, and not with a view to punishment. The Court is concerned to protect the public, not to punish a practitioner who has done wrong, although of course the removal of the practitioner’s name from the Roll will operate as a punishment. The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner, and by demonstrating that the person is, by reason of his or her conduct, not fit to remain a member of a profession that plays an important part in the administration of justice and in which the public is entitled to place great trust.[10]
(Footnote omitted)
[9] [1999] SASC 83; (1999) 201 LSJS 456.
[10] Ibid at 460-1.
As indicated at the outset of these reasons, the practitioner consented to an order striking her name from the roll of practitioners. The practitioner’s solicitors indicated that consent in a letter to the Court on 28 September 2012 and therefore did not provide a summary of argument in relation to the hearing of the appeal. Counsel confirmed that consent at the commencement of his submissions and confirmed it again at the conclusion of the submissions while, at the same time, asking the Court, in the light of some questions from the bench, to be as lenient as possible.
That consent makes it unnecessary to consider whether some other form of disciplinary order may have been sufficient in the circumstances of this case. It is to the practitioner’s credit that she has acknowledged the seriousness of her conduct. Although it is unfortunate that, towards the end of her legal career, the practitioner’s name will be struck off the roll of practitioners, the nature of the conduct, the circumstances of the case and the practitioner’s consent make it appropriate for this Court to accede to the Board’s application. I add that I would not rule out the possibility of a successful application by the practitioner for re‑admission at some time in the future.
Accordingly, I would order that the name of Barbara Dorothy Rowe be struck off the roll of legal practitioners maintained by this Court under the Legal Practitioners Act 1981 (SA).
PEEK and BLUE JJ. On 15 June 2012, the Legal Practitioners Conduct Board (“the Board”) instituted disciplinary proceedings against Ms Barbara Rowe pursuant to s 89 of the Legal Practitioners Act 1981 (“the Act”). The Board seeks an order that the name of Ms Rowe be struck off the roll of legal practitioners.[11]
[11] Legal Practitioners Act 1981 s 89(2)(d).
In this Court, and before the Legal Practitioners Disciplinary Tribunal, (“the Tribunal”), Ms Rowe admitted that she was guilty of unprofessional conduct in May 2007 in connection with an affidavit of her client, Mr M, which she caused to be filed in the Federal Magistrates Court in proceedings under the Family Law Act 1975. The issue to be determined in these proceedings is the appropriate disciplinary order which ought to be made in the interests of the protection of the public.[12]
[12] Law Society of South Australia v Murphy [1999] SASC 83; (1999) 201 LSJS 456, 460-461 (Doyle CJ; Millhouse J and Prior J agreeing).
Background facts
Ms Rowe was admitted as a legal practitioner of this Court on 16 February 1971. She is now 65 years old.
After her admission, Ms Rowe worked as a solicitor practising primarily in family law for 11 years at Giles Magarey and Lloyd. After practising in Queensland for two years, she returned to Adelaide and worked as a family law solicitor at the Legal Services Commission. After her two children were born, she left the Legal Services Commission to obtain part-time work in private practice, initially with Ms Robyn Croydon and then with other firms on a part-time basis. After working for several years for Wallmans Lawyers, in 2003 she established her own practice as a sole practitioner at Prospect. She continued to practise primarily in family law. In November 2007, she sold her practice and commenced employment as a solicitor with the Aboriginal Domestic Violence Group in Port Lincoln. In November 2010, she commenced employment as the South Australian Regional Coordinator for the federal program, Recruitment and Retention of Lawyers in Rural, Regional and Remote areas. That program concluded earlier this year and Ms Rowe then commenced studying mediation.
Over the course of her professional career, Ms Rowe has devoted considerable time to voluntary and charitable work. She was a member of the Asthma Foundation, served on the management committee of the Adelaide Central Mission, served on the Council of Kingston College and was president of the Old Scholars Association of her school.
The unprofessional conduct
On 12 December 2006, Mr M retained Ms Rowe to act for him in property proceedings in the Federal Magistrates Court arising out of his divorce in October 2006. Mr M lived in Broken Hill and worked for the Broken Hill Correctional Centre.
On 15 February 2007, the matter was listed for a trial to commence on 11 May 2007. Affidavit evidence was to be filed and served by 26 April 2007.
On 30 March 2007, Ms Rowe appeared for Mr M at a mediation conference at the Federal Magistrates Court in Adelaide. No settlement was reached.
On 16 and 17 April 2007, Mr M attended upon Ms Rowe to provide detailed instructions for the preparation of his affidavit. Ms Rowe took voluminous notes of that attendance.
On 26 April 2007, Mrs M’s solicitor sent to Ms Rowe an affidavit by Mrs M, which Ms Rowe forwarded to Mr M. On 30 April 2007, the trial date was vacated and the trial was rescheduled to commence in Broken Hill on 31 May 2007. Ms Rowe overlooked the need to file and serve Mr M’s responding affidavit.
On 8 May 2007, Mr M prepared a nine page typed response to Mrs M’s affidavit and sent it by email to Ms Rowe. Ms Rowe prepared a 12 page draft affidavit based on her notes taken on 16 and 17 April 2007. She arranged to meet Mr M on Sunday 27 May 2007 to settle the draft affidavit and his nine pages of response to Mrs M’s affidavit. She intended to have the edits typed by her secretary the following morning and for Mr M then to swear the completed affidavit.
The meeting on 27 May 2007 took longer than expected and occupied the whole day. Mr M made many corrections to the draft affidavit and gave additional instructions. The changes were written onto the draft affidavit by both Mr M and Ms Rowe. At the end of the meeting, Ms Rowe asked Mr M to come back and swear the affidavit on the following day (Monday, 28 May 2007) after it had been corrected and his response to Mrs M’s affidavit had been incorporated by Ms Rowe’s secretary. Mr M telephoned the Broken Hill Correctional Centre, but was unable to contact his supervisor and decided that he could not stay in Adelaide because he had to return to work at Broken Hill. Mr M then asked if he could sign blank pages and Ms Rowe could incorporate the final version of his affidavit after the corrections had been made onto those pages. Ms Rowe agreed[13] and thereby brought these proceedings upon herself.
[13] In his witness statement, Mr M said that it was Ms Rowe’s suggestion that he sign blank pages. The Tribunal made a finding accepting Ms Rowe’s account that it was Mr M’s idea. In this Court, the Board explicitly accepts Ms Rowe’s account and hence it is common ground that Mr M asked Ms Rowe if he could sign blank pages.
On Monday, 28 May 2007, Ms Rowe’s secretary made the corrections to the draft affidavit and incorporated them into Mr M’s response to Mrs M’s affidavit. Ms Rowe sent the affidavit by email to Mr M. Mr M telephoned Ms Rowe and gave her several further corrections to the affidavit. Ms Rowe hand wrote the corrections onto the affidavit and her secretary made the corrections to the document. Ms Rowe directed her secretary to print the final document onto the blank pages which had been pre-signed by Mr M. It is common ground that Ms Rowe believed that the final document was accurate and complete and its contents had been verified by Mr M. Of course, the problem was, as Ms Rowe well knew, that Mr M had not signed the pages after the text was printed onto them and had not sworn that it was correct as he was required to do.
Ms Rowe had briefed Mr McQuade to appear for Mr M at the trial on 31 May 2007. She sent the final form of the affidavit to Mr McQuade and asked him to file and serve it in Broken Hill.
Mr McQuade left Adelaide on the evening of 30 May 2007 and meet Mr M on the morning of 31 May 2007. Mr M informed Mr McQuade that he had not signed the affidavit after the final version had been produced but had signed it in blank. Mr McQuade telephoned Ms Rowe; she confirmed what Mr M had said and admitted that she had acted improperly and offered to meet the costs of an adjournment of the trial on an indemnity basis.
Mr M made some minor changes to the affidavit and swore it before Mr McQuade. It is common ground that the changes were not material. Mr McQuade re-dated the affidavit “31 May” and endorsed it as witnessed by himself. He informed the Court and Mrs M’s counsel of what had occurred. Mrs M did not seek an adjournment of the trial, and it proceeded.
The Board investigation and subsequent proceeding
In November 2009, the Board wrote to Ms Rowe and alleged that she had acted improperly by completing and causing to be filed the purported affidavit. In December 2009 and February 2010, Ms Rowe responded, admitting the allegations and admitting that her conduct had been improper.
In February 2011, the Board laid a charge in the Tribunal against Ms Rowe alleging two counts of unprofessional conduct. The first count related to the completion of the purported affidavit and the second count related to its filing. Ms Rowe pleaded guilty to the charge, but for one reason or another it was not heard by the Tribunal until December 2011.
In the meantime, as a result of the laying of the charge in February 2011, Ms Rowe did not renew her practising certificate after it expired on 30 June 2011. She did this because the charge had been laid against her. She did not in any event need a practising certificate for her employment by the Recruitment and Retention program although she hoped to resume working as a solicitor in the future before her planned retirement at the age of 70.
On 20 December 2011, the Tribunal heard the charge. Ms Rowe admitted the charge and the seriousness of her conduct. Her counsel invited the Tribunal to deal with the matter itself on the basis of either imposing conditions on, or suspending her entitlement to hold, a practising certificate. Two references from legal practitioners were tendered on Ms Rowe’s behalf and Mr McQuade provided written comments in support of her competence and reputation.
On 10 April 2012, the Tribunal delivered its reasons for decision. The Tribunal considered that neither a reprimand nor fine was appropriate in light of the seriousness of Ms Rowe’s conduct. The Tribunal noted that there was no sustained or repeated course of conduct alleged. The Tribunal considered that it could not exercise its powers to impose conditions on, or suspend, Ms Rowe’s practising certificate because she did not currently hold a practising certificate. Accordingly, the Tribunal determined to recommend that disciplinary proceedings be commenced against Ms Rowe in this Court.
On 15 June 2012, the Board instituted these proceedings. At the hearing on 4 October 2012, Ms Rowe attended in person. She unequivocally accepted the seriousness of her conduct. Through her solicitor who appeared for her, she expressed her apology and remorse. She submitted to any order which the Court considered appropriate, including an order striking off her name from the roll of legal practitioners. She asked the Court to be as lenient as possible in considering the range of options available under s 89 of the Act.
The appropriate order
There is no dispute that Ms Rowe engaged in serious unprofessional conduct in May 2007. The question is the appropriate order to be made in all of the circumstances.
Section 89(2) of the Act provides:
(2)In any disciplinary proceedings against a legal practitioner (whether instituted under this section or not) the Supreme Court may exercise any one or more of the following powers:
(a) it may reprimand the legal practitioner;
(b) it may make an order imposing conditions on the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate)—
(i) relating to the practitioner's legal practice; or
(ii)requiring that the legal practitioner, within a specified time, complete further education or training, or receive counselling, of a specified type;
(c) it may make an order suspending the legal practitioner's practising certificate (whether a practising certificate under this Act or an interstate practising certificate) until the end of the period specified in the order or until further order;
(d) it may order that the name of the legal practitioner be struck off the roll of legal practitioners maintained under this Act or the roll kept in a participating State that corresponds to the roll maintained under this Act;
(e) it may make any other order (including an order as to the costs of proceedings before the Court and the Tribunal) that it considers just.
Section 89(2) confers upon the Court plenary powers to make any order that it considers just. This is in contrast to the powers of the Tribunal pursuant to s 82(6), which are specific and limited in nature and degree.
The powers of the Court at the lower end of the range include the power to reprimand and/or fine a legal practitioner. The powers in the middle of the range include powers to impose conditions on, or suspend, a legal practitioner’s practising certificate for a specified period. The powers towards the higher end of the range include the power to suspend a practitioner’s practising certificate and/or preclude a practitioner from applying for or holding a practising certificate until further order. The ultimate power at the highest end of the range is the power to order that the name of the legal practitioner be struck off the roll of legal practitioners.
Ms Rowe’s conduct in May 2007 was unprofessional conduct because it involved substantial failure to meet the standard of conduct observed by competent legal practitioners of good repute. It was a serious breach of Ms Rowe’s professional obligations to the Federal Magistrates Court, her client and her opponent. By completing and filing the purported affidavit, she represented that on 27 May 2007, Mr M had read and signed the typed document and had sworn before her that the contents were true. That representation was false.
On the other hand, the document was prepared in accordance with Mr M’s detailed instructions provided on 16 and 17 April, and 9, 27 and 28 May 2007. Its contents were accurate. The minor changes made by Mr M on 31 May 2007 to the document were not material. When Ms Rowe completed, and caused to be filed, the document, she genuinely and reasonably believed that Mr M had confirmed the detail of each and every statement contained in it.
In the Board’s written submissions on appeal, the Board said that it:
… accepts that the Practitioner’s conduct is mitigated by her immediate and frank disclosure to counsel when the issue was exposed and her offer to bear any costs personally that might result from her misconduct. It is also mitigated by her acknowledgement of unprofessional conduct. As events transpired, there was no actual embarrassment to the client’s case or to the administration of justice. Also, the difference between the ‘draft’ affidavit and the version finally sworn and relied upon were not such as might have affected the result of the case. The practitioner attempted to accurately and completely reflect her client’s instructions in the draft she prepared. Her relatively good professional record over many years and the good character evidence tendered on her behalf stands to her credit. It would appear that the misconduct arose because of work and staffing pressures, rather than any personal advantage or greed.
We agree with that assessment.
In determining what is an appropriate order, the primary consideration is the protection of the public and the administration of justice: the Court does not act with a view to punishment.[14]
[14] Law Society of South Australia v Murphy [1999] SASC 83; (1999) 201 LSJS 456, 460-461 [30] (Doyle CJ; Millhouse J and Prior J agreeing); Legal Practitioners Conduct Board v Nicholson [2006] SASC 21; (2006) 243 LSJS 293, 296 [27] (Doyle CJ; Perry J and White J agreeing); Legal Practitioners Conduct Board v Kerin [2006] SASC 393; (2006) 246 LSJS 371, 378 [20] (Gray J).
In the majority of cases in which it is necessary for the protection of the public and the administration of justice that a practitioner’s name be struck off the roll of legal practitioners, the practitioner has engaged in a sustained course of unprofessional conduct over a prolonged period or repeated instances of unprofessional conduct over a prolonged period. Engaging in such conduct often demonstrates that a practitioner is not a fit and proper person to practise law or remain on the roll of legal practitioners.
A practitioner may engage in a single act of unprofessional conduct which is of such gravity that it demonstrates in itself that the practitioner is not fit and proper to remain on the roll of legal practitioners. However, in other cases, an isolated act of unprofessional conduct by a practitioner who has otherwise acted over the course of his or her professional practice in accordance with the standard of conduct observed by competent legal practitioners of good repute is not regarded as demonstrating that the practitioner is not a fit and proper person to remain on the roll of legal practitioners. In those instances, the protection of the public and the administration of justice does not require the most severe order which this Court has power to make but may be met by a lesser order such as suspending the practitioner’s entitlement to hold a practising certificate for a specified period.
Prior to May 2007, subject to one qualification, Ms Rowe had practised as a solicitor for over 35 years without any suggestion that she was not a fit and proper person to practise the profession of the law or failed to meet the standard of conduct observed by competent legal practitioners of good repute. The qualification is that Ms Rowe was reprimanded by the Tribunal in 2005 for conduct which was characterised by the Board as minor. Evidence was adduced before the Tribunal from three practitioners attesting to Ms Rowe’s good character and competence. The Board accepts that she has a relatively good professional record over many years.
Since May 2007, Ms Rowe has practised the profession of the law for three and a half years without any allegations of misconduct against her. This is a factor to be taken into account in assessing whether she is a fit and proper person to remain on the roll of legal practitioners.[15]
[15] Legal Practitioners Conduct Board v Clisby [2012] SASCFC 43, [9], [12]-[13] (Doyle CJ and Stanley J), [91]-[99] (Anderson J).
When her conduct was discovered on 31 May 2007, Ms Rowe immediately accepted that she had acted improperly and offered to meet the costs thrown away by reason of her conduct. She accepted at all times in response to the Board and in the Tribunal that she had acted improperly, her conduct amounted to unprofessional conduct and that severe disciplinary action was warranted. Both her response since 31 May 2007 and the character evidence adduced before the Tribunal demonstrate Ms Rowe’s contrition and that it is very unlikely that she would engage in unprofessional conduct in the future if her name is not struck off the roll of legal practitioners.
In all of the circumstances, it is not necessary or desirable in the interests of the protection of the public or the administration of justice that Ms Rowe’s name be struck off the roll of legal practitioners. However, the seriousness of her conduct warrants an order precluding her from applying for or holding a practising certificate for a period of three years. As she voluntarily relinquished her practising certificate with effect on 30 June 2011 in light of the charges before the Tribunal, the appropriate order is that Ms Rowe be precluded from applying for, or holding, a practising certificate until 30 June 2014.
We emphasise that, if the contents of the purported affidavit had not been complete and accurate in accordance with Mr M’s instructions or if Ms Rowe had engaged in the conduct for financial gain, we would have viewed her conduct in a very different light.
We also note that, in determining what is the appropriate order in the interests of the protection of the public and the administration of justice, we have taken into account the fact that Ms Rowe informed the Court that she submits to any order which the Court thinks fit to make and in particular does not oppose, and indeed consents to, an order striking off her name from the roll of legal practitioners.
However, if it is appropriate in the interests of the protection of the public and the administration of justice to make an order suspending Ms Rowe’s right to practise for a specified period and not to strike off her name from the roll of legal practitioners, as we consider it is, the fact that she consented to any order that the Court might see fit to make does not alter our view as to the appropriateness of the disposition that we propose. It seems to us that Ms Rowe’s attitude in this regard in fact confirms the genuineness of the contrition which she has displayed and her true acceptance of the seriousness of her conduct.
Finally, in coming to our decision, we have taken into account the authorities cited by the Board in which disciplinary orders have been made in relation to practitioners who have purported to swear affidavits or witness documents but have not in fact done so.
In English v Legal Practitioners Complaints Committee,[16] the practitioner purportedly witnessed the swearing by a process server of an affidavit of service. In fact, no oath was administered and the affidavit was not sworn at all. The process server merely signed his name and the practitioner signed as witness. The Legal Practitioners Complaints Committee reprimanded the practitioner and this penalty was considered appropriate by this Court. Johnston J said:[17]
I should only add that I think that the Tribunal acted correctly in imposing the minimum penalty which was open to it. The practitioner is of long standing and of good standing. There is not the slightest suggestion that he was acting dishonestly or dishonourably in any conscious manner at all. I have no doubt that he regarded the deponent as an honest person and that he had reason arising from past experience so to regard him and that he assumed he would attend to his affidavit of service in a responsible manner. But the fact of the matter is that by inadvertence arising probably out of sheer repetition he had come to overlook the importance of the function that he was performing and the need to assure himself that the deponent was in fact binding his conscience to the truthfulness of each individual proof of service.
[16] (1986) 41 SASR 217.
[17] English v Legal Practitioners Complaints Committee (1986) 41 SASR 217, 225.
In Re Mirza,[18] a solicitor adopted a general practice of asking clients to swear affidavits on a dictionary instead of a bible, telling them that this would avoid the risk of their committing perjury by reason of the affidavit being false. When one of his clients was charged with perjury, the client made the defence that his affidavit had not been sworn on a bible and the charge of perjury was dropped. Mr Mirza gave evidence before the Tribunal which found that his evidence was knowingly and deliberately false for the purpose of avoiding the charge and recommended that disciplinary proceedings be commenced against him in this Court. Mr Mirza left Australia and moved to Pakistan. This Court ordered that the name of the practitioner be struck off the roll of legal practitioners. Mr Mirza returned to Australia in 1995 and applied for readmission. This Court declined his application in Re Mirza[19]. His conduct was a sustained course of unprofessional conduct over a prolonged period, engaged in with the deliberate purpose of evading the consequences of perjury. He himself committed perjury before the Tribunal. This conduct was very much more serious than that of Ms Rowe.
[18] [1991] SASC 3171.
[19] [1996] SASC 577.
In Re McLardie,[20] the practitioner acted for the wife in family court proceedings. The Court ordered the husband to transfer a property to the wife. The practitioner sent a transfer to the husband and received it back apparently signed by the husband but not witnessed. The practitioner attempted to have the transfer witnessed, but ultimately signed the transfer as the witness, even though the practitioner had not witnessed the husband signing it and had not been told that he had signed it. The practitioner was remorseful and admitted her wrongdoing from the outset. The New South Wales Legal Service Tribunal imposed a reprimand and a fine of $2,000.
[20] [1998] 3 LPDR 23.
In Law Society of New South Wales v McElvenny,[21] a solicitor swore an affidavit verifying a defence without reading it. The New South Wales Administrative Decisions Tribunal (Legal Services Division) found that the solicitor acted recklessly in swearing the affidavit. The Tribunal imposed a fine of $3,750 and ordered that the solicitor undertake a course in legal ethics.
[21] [2002] NSWADT 166.
In Legal Services Commissioner v Flynn,[22] a solicitor drafted a Power of Attorney and Appointment of Enduring Guardian appointing the client’s daughter as attorney and guardian. He sent the documents to the client and received them back apparently executed by the client and her daughter. He signed the documents as a witness to their signatures. He admitted before the Tribunal that he had not witnessed their signatures. The solicitor was also charged with and found guilty of two unrelated counts of professional misconduct and one unrelated count of unsatisfactory professional conduct. The Tribunal imposed a reprimand and a fine of $4,000.
[22] [2007] NSWADT 186.
We consider that these, and other authorities, are consistent with, and lead to, our conclusion that Ms Rowe be precluded from applying for, or holding, a practising certificate for a period of three years, which period, for the reasons stated above, will expire on 30 June 2014.
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