Supreme Court of NSW birches Law Society for bringing a misconceived misconduct allegation against a lawyer … Witnessing a signature for a child’s passport application … Failure to disclose relevant material … Jurisdictional error … Undue delay … Bureau de Spank gets spanked
The judgment is comprehensively anonymised, but the plot goes like this …
AB, a solicitor at the time, but now admitted as a barrister, was asked by CD, her supervising partner at their law firm, to witnesses a passport application for CD’s young child, XY.
AB observed CB sign the application which she then witnessed. She noticed that the application also bore the signature of EF, the father of CD’s child.
CD said that EF had been in earlier that morning to sign the passport application and on the strength of that AB also witnessed EF’s signature.
The next day (March 4, 2016), the passport fraud squad was on the blower. AB asked her supervising partner what was going on and CD said that she had forged the signature of her former husband and that AB better “keep quiet” about it. CD became increasingly hostile towards AB.
AB voluntarily disclosed what had happened to the Law Society by letter dated November 17, 2016.
The Bureau de Spank people at the society became muddled and initiated two complaints against AB – that she had falsely witnessed the signature of both CD and of EF.
Not only did the society incorrectly make an allegation of misconnect about witnessing CD’s signature, it also proceeded to hide from AB and her lawyer, Greg Walsh, much of the material relevant to defending the complaints.
It failed to identify and and make available CD’s two statutory declarations, despite three requests from Walsh. The society falsely claimed that all relevant material had been provided.
CD admitted in her second statutory declaration dated April 21, 2017, that she had forged EF’s signature. Yet the Law Society did not reveal this information to AB until December 15, 2017.
The disciplinarians at the society then said that they would be making a preliminary decision to refer the complaint about improperly witnessing EF’s signature to NCAT on the basis that it amounted to professional misconduct.
Following the Law Society’s refusal to produce the whole of the complaints file, including both statutory declarations, AB developed serious mental health problems and was admitted to hospital with suicidal ideation
She commenced proceedings against the Law Society in the NSW Supreme Court, claiming she had been denied procedural fairness as a result of the failure to disclose the statutory declarations by CD and that the society had not given adequate reasons for deciding to commence a case in professional misconduct.
HH accepted AB’s submission and found the lack of disclosure amounted to procedural unfairness.
Had this material been disclosed AB could have made submissions regarding CD’s lack of credit and that the complaint about improperly witnessing CD’s signature was baseless.
Also, she would have been able to make the case that more properly the Law Society should have resolved that this was a case of unsatisfactory professional conduct and not professional misconduct.
Davies J found that the reasons given by the Law Society for its resolutions were inadequate.
It claimed that exculpatory material had been considered, yet failed to identify this material or the treatment given to it.
Nowhere did the society explain why the alleged conduct should be dealt with by NCAT as professional misconduct. In arriving at that conclusion Davies said the Law Society fell into jurisdictional error by misapprehending its function and asking itself the wrong question.
The resolutions to initiate proceedings against AB were quashed and no further steps are to be taken.
AB informed the Law Society about her conduct in November 2016, yet the final decision about it was only made on February 1, 2018.
Maybe the society is drowning in complaints with the queue getting longer by the moment.
So what of CD, who seems to be the real villain of the piece? What has the Law Society done about her?