A 27 year old solicitor working in family law twice lied about the existence of a document, and then forged it. That was just one and a bit years after a harrowing admission application in which the Board of Examiners split on whether she should be admitted, as a result of what VCAT’s Deputy President McNamara referred to as ‘allegations of plagiarism’ at the College of Law, and a want of frankness in their disclosure. The Board had given the solicitor a stern warning at the end of the hearing. For the forgery, the solicitor was fined $3,500 and reprimanded, the Commissioner’s submission that a year’s suspension was warranted being dismissed as ‘disproportionate’: Legal Services Commissioner v SJJ, McNamara DP, 14 April 2011. If followed, this decision suggests once again that interference by VCAT with a practising certificate requires quite profound dishonesty.
As to the fine, it may be that $3,500 was a significant fine for this solicitor: her financial circumstances were described as ‘exiguous’, but she was employed as a solicitor by a respectable Melbourne firm at the time of the penalty hearing, looked set to remain so employed by her supportive employer, and her circumstances seem to have been principally affected by the size of her mortgage. The general deterrence of a fine of this sum would be enhanced if its appropriateness in the context of the solicitor’s ability to pay it were explained in greater detail. That way, solicitors weighing up the risks of forging a document against its perceived desirability (yes, that is the theory of general deterrence) would be able to remember back to the report of the case in question and think ‘Well if he was fined $5,000 and had an annual disposable income of $25,000 living in a modest home, I must be looking at a fine of something like $20,000 since my disposable income is four times his, and I live in a home twice as large as my family actually needs.’
One infers that the solicitor chucked a sickie. Challenged to produce a medical certificate by her law firm employer, she twice asserted the existence of such a document, and then forged one and gave it to her employer, representing that it was authentic. The fraud detected, she was summarily sacked, and her employer lodged a complaint.
The solicitor argued in response that the complaint should be dismissed as vexatious, and made allegations of bullying by her boss, his wife, and others at the firm. Her counsel admitted at the hearing that objectively they could not be made out. The reasons contain no suggestion that the solicitor gave evidence that despite the fact that she had not been bullied, she believed that she had been bullied. Her counsel submitted that ‘it could have been perceived subjectively by his client as being the situation’. She told the Legal Services Commissioner that she was seeing a psychologist weekly when in fact she was not.
There was psychological evidence suggesting that the solicitor was suffering some of the symptoms necessary for a diagnosis of depression, following a relationship break up, and that ‘at some point’ during her employment, her judgment ‘may have been impaired’. She had sought counselling before the lies about the medical certificate and its subsequent forgery. But the psychological evidence was predicated on a false history that included workplace bullying (see ).
There was evidence that the solicitor’s commitment to her mortgage was a substantial financial burden. Patrick Over for the Commissioner brought the Tribunal’s attention to other disciplinary cases involving the forgery of documents: Young v Law Society of NSW  NSWADTTAP 38 and Council of the Law Society of NSW v Russell in which fines of $10,000 and $13,000 were imposed in circumstances where the lawyers demonstrated complete insight into the wrongness of their conduct and genuine contrition. They involved the forgery of letters of administration and of a statutory certificate. Our solicitor’s forgery was described as ‘of vastly lesser quality’ than those in Mr Over’s two cases, apparently in part because no client was known to have been affected. Though Deputy President McNamara said:
‘The forging of any document is the start of a slippery slope. A medical certificate today, letters of administration tomorrow. In its disciplinary role the legal system cannot trivialise or wink at any sort of forgery whatsoever.’
But then the Deputy President said that but for the ‘hiccups’ with the application for admission he would have been inclined to keep the penalty to a reprimand. The penalty was elevated to a fine of $3,500 because of the ‘previous black mark’. So there you go: don’t forge documents because if you do, assuming you fess up somewhat and express a degree of contrition, you might get reprimanded.
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