The disciplinary investigator’s duty of disclosure; more on inadequate reasons following a disciplinary investigation

Summary AB v Law Society of NSW [2018] NSWSC 1975 is a decision of Davies J given on 19 December 2018, quashing the Law Society’s decision under the Legal Profession Uniform Law (NSW) to prosecute a former solicitor for falsely attesting a passport application form, having been told, and believing, that the signature was genuinely applied by the signatory, but not in the solicitor’s presence. The decision was quashed because the Law Society failed to disclose to the solicitor, despite demand, during the disciplinary investigation all relevant documents, in breach of the obligation of procedural fairness, and because its reasons for its decision to prosecute were not reasons at all, and so amounted to jurisdictional error. In this latter respect, the decision is an application of the law set out in Levitt v Council of the Law Society of NSW [2017] NSWSC 834 (see this blog post) and the decision dismissing the appeal from that decision, reported at [2018] NSWCA 834.

How the decision came to be anonymised is not referred to in the reasons. Can anyone tell me how that happened?

Detail   In March 2016, a solicitor’s supervising partner asked her to witness a passport application for her daughter, and signed the form in her presence.  She asked the solicitor to witness the father’s signature too, and the solicitor falsely attested his signature as well, having been assured by the partner, on her version of events at least, that she had had the father sign the form in her presence earlier that day.  The form only had to be witnessed by an adult, not a solicitor.

The Passport Fraud Squad called the solicitor the next day and the solicitor confronted the partner who confessed to having forged the father’s signature.    

The solicitor and her supervising partner changed firms.  The solicitor spoke confidentially to another partner at the new firm about her supervising partner’s actions.  Breaking that confidence, the other partner spoke to the supervising partner and then reported to the solicitor that the supervising partner denied wrongdoing.  

In September 2016, the firm commenced an internal investigation into the solicitor, who retained an external lawyer to represent her.  The supervising partner told the investigation that the solicitor had witnessed both her signature and the father’s on the passport form.

In November 2016, the solicitor made a self-disclosure to the Law Society of her false attestation of the father’s signature. The firm found the solicitor had not told the truth, and gave notice they were thinking about sacking her.   In January 2017, the solicitor resigned to go to the Bar.

In late March 2017, nearly 13 months after the events in question, the Law Society initiated a complaint against the solicitor under the Legal Profession Uniform Law.  They sought to investigate whether the solicitor had falsely attested the father’s and the supervising partner’s signature.   There does not seem to have been any basis for the Law Society to investigate whether the solicitor falsely attested the supervising partner’s practising certificate. Maybe their stuff-ups began early.

Despite requests, the Law Society never provided to the solicitor a copy of the passport application form.  

That month, the solicitor’s lawyer asked the Law Society to proceed with expedition because of the psychiatric distress being suffered by the solicitor.  She was suffering an adjustment disorder arising from the Law Society’s complaint, and a psychiatrist said, more or less: resolve this urgently, otherwise she might well kill herself.

In June 2017, the solicitor applied for a barrister’s practising certificate.  The Bar investigated the relevant events in the course of deciding whether to let her be a barrister.

Later that month, the Law Society wrote to the solicitor’s lawyer citing extracts from a statutory declaration given by the supervising partner which claimed that when she signed the form the solicitor had laughed and said to the supervising partner she knew the husband had not signed the form and that she had had to do things like this all the time at her last firm.  The Law Society did not give a date on which the stat dec was given.

In July 2017, the solicitor’s lawyer requested a copy of the stat dec, to no avail.  The Law Society said the lawyer had been provided with everything relevant and they would not provide irrelevant material.  That was not true; there was a second statutory declaration made by the supervising partner in their possession which was in fact relevant.  That statutory declaration of the supervising partner said that she had requested the solicitor to attest a signature which purported to be, but was not in fact, the father’s signature.

In late August 2017, satisfied she was a fit and proper person to practise, the Bar gave the solicitor a barrister’s practising certificate.  (It is interesting that the Bar did not await the results of the Law Society’s investigation before making that decision. Perhaps they knew how glacially the Law Society typically moves, or in this case was moving.)

The Bar’s reasons adverted to two statements given by the supervising partner, including a statutory declaration of April 2017 which said (inconsistently with what the Law Society had said about the statutory declaration they had been referring to) that the supervising partner had not in fact seen the solicitor personally and properly attest the father’s signature.  (The two accounts of the supervising partner apparently in play were, therefore: ‘I saw the solicitor in the same room as me and the father, I saw the father sign, and I saw the solicitor attest that signature,’ and ‘I did not see that.’)

The solicitor’s lawyer again asked for all the statements and was again rebuffed, but the rebuff referred to ‘the statutory declarations’.

In December 2017, the solicitor became suicidal and was hospitalised, and her lawyer advised the Law Society, and complained of the delay, contrasting the year long investigation into the solicitor’s self-disclosure with the Bar’s efficient investigation and resolution of the same question.  Subsequently, the solicitor wrote directly to the President of the Law Society advising she had unsuccessfully attempted to kill herself by an overdose, begging for clarity on what was to happen in the investigation.

The Law Society advised in response that it was going to close the investigation into whether the solicitor had falsely attested the father’s signature but would proceed with the investigation of whether she had falsely attested the supervising partner’s signature.  They had got the results of the investigation muddled up and their letter said the opposite of what they meant.

But it got its investigations right in a letter of 15 December 2017 (I find it uncanny how many decisions to prosecute are dropped just before Christmas; the decision to prosecute my latest client, for dishonesty which he vehemently denies, was given to him on Christmas Eve.)  The Law Society said it would likely close the complaint about falsely attesting the supervising partner’s signature, but likely prosecute the false attestation of the father’s signature.   They got it right this time.

The next day, the solicitor’s lawyer responded at length, and on 28 December 2017, a letter from the solicitor’s psychiatrist reiterating the psychiatric distress being occasioned by the investigation was forwarded to the Law Society.

But the Law Society did not get around to communicating a final decision until nearly six weeks later, on 6 February 2018.  The decision, set out at [41], was pretty rubbish; it recited a whole lot of what appear to be relatively uncontroversial facts, presumably consistent with the solicitor’s self-disclosure, recorded the dates on which the solicitor’s lawyer had made submissions, said that they had been taken into account, and said it was ‘satisfied that the alleged conduct in the complaint may amount to professional misconduct as opposed to unsatisfactory professional conduct.’

It is a feature of the LPUL that it expressly states that reasons must be given for a decision following an investigation, which must be conducted according to the rules of procedural fairness. Whether the reasons provision applies in the case of a decision to prosecute professional misconduct, a matter which was controversial in the case, the Court found there was a common law obligation to give reasons for an administrative decision such as that following an investigation.

The Court found that the Law Society had failed to disclose to the solicitor information relevant to the investigation: that the supervising partner admitted that the solicitor had properly attested her execution of the form (so that the first limb of the Law Society’s complaint was radically misconceived) and that the supervising partner had in fact more or less admitted forging the father’s signature.  The solicitor was robbed of the opportunity of making submissions that the supervising partner should not be believed by the Law Society about, for example, her story that the solicitor had laughed and attested the father’s signature knowing that the father had not in fact signed it.  She was robbed of the opportunity of advocating forcefully that her version of events, which had never wavered, should be accepted, and that the conduct described by it ought to be regarded as unsatisfactory professional conduct rather than professional misconduct and so be dealt with by an internal sanction by the Law Society rather than by prosecution.

The Court found that the Law Society’s purported reasons were not reasons at all.  They disclosed no path of reasoning (as to the duty to give reasons which disclose the decision maker’s path or reasoning more generally, see this blog post).  How the exculpatory matters relied on by the solicitor in her lawyer’s submissions identified by date was not explained.  Then the Court said at [91]:

‘there was nothing inherent in the plaintiff’s wrongdoing that necessarily led to a conclusion that professional misconduct might be established “as opposed to unsatisfactory professional conduct” (as paragraph 15 of the reasons refers). Section 298 sets out conduct which is capable of constituting either unsatisfactory professional conduct or professional misconduct. Paragraph (e) includes where the solicitor has been convicted of … an indictable offence, or convicted of an offence involving dishonesty, …. If being convicted of a serious offence or an offence involving dishonesty is capable of constituting unsatisfactory professional conduct, it follows a fortiori, that where the plaintiff has not been charged or convicted at all, her behaviour is capable of constituting unsatisfactory professional conduct.’

Accordingly, the Law Society ought to have given reasons justifying its conclusion that this conduct, which they said in their decision to prosecution justified a reprimand, was professional misconduct rather than unsatisfactory professional conduct.

The Court castigated the Law Society for its delay. As far as I can see, these regular castigations of disciplinary investigators have no effect at all. Delay is as prevalent and obnoxious as ever in disciplinary investigations.

See also:

Print Friendly, PDF & Email

One Reply to “The disciplinary investigator’s duty of disclosure; more on inadequate reasons following a disciplinary investigation”

Leave a Reply

Your email address will not be published. Required fields are marked *