A few words about the blog
The AWU Scandal - an introduction - Revised, evening 31/10/2012

Why you should have faith in the legal profession

Good lawyers know this.   They don't break these rules.   Thank you to a good lawyer who put this memorandum together for you on the blog


This memorandum sets out a few brief examples (there are
many others) of the attitude of the Courts and various disciplinary bodies to
solicitors found guilty of wrongfully certifying or dating documents or
otherwise making false or misleading statements to others.


  1. In the New South Wales case of Demetrios v Gikas Dry Cleaning Industries
    Pty Ltd (1991) 22 NSWLR 561
    , the NSW Court of Appeal considered the
    position of a solicitor who had signed a mortgage as witness to the signatures
    of both husband and wife, although the wife was not present when the document
    was purportedly witnessed by the solicitor. Two of the judges (at 565) stated
    that the solicitor’s conduct conveyed “a material misrepresentation to the
    solicitor for the vendor”. The Legal Profession Disciplinary Tribunal then held
    in Re Demetrios [1993] 3 LPDR 3 at 6
    that “The conduct of the solicitor in signing his name as witness of a
    signatory on documents that were not signed by that signatory in his presence
    is clearly conduct which would be regarded as disgraceful and dishonourable by
    solicitors of good repute and competency.”

  2. In another New South Wales case with similar
    facts, Law Society of New South Wales v
    [2008] NSWADT 82 at [38], the tribunal agreed with the submission
    of the Law Society of New South Wales that … “any solicitor who purports to
    witness a signature of a person in circumstances where the solicitor does not
    see the person whom the signature purports to represent sign a document…must be
    prima facie guilty of conduct which, on any definition, can only be described
    as professional misconduct.”

  3. In a Queensland case, Attorney-General v Bax [1999] 2 Qd R 9, where a solicitor, among
    other things, ante-dated a deed of loan and deceived a creditor’s meeting, one
    of the judges of the Queensland Court of Appeal remarked, “The spectacle of a
    solicitor, who was chairman of the meeting, falsely asserting a date for the
    execution of an instrument is one that is not likely to be readily forgotten by
    the large number of business people who were present on that occasion. It
    conveys a very poor image of the honesty and integrity of solicitors and so
    tends to bring the whole profession and its standards into disrepute.”

  4. Legal
    Services Commissioner v Ramsden
    [2006] LPT 010 (Queensland Legal Practice
    Tribunal) was a case where a solicitor was reprimanded and fined for
    post-dating a mortgage to avoid stamp duty penalties.

  5. Prothonotary
    of the Supreme Court of New South Wales v Chapman
    (CA (NSW) 14 December
    1992, unreported, BC9201419) was a case where the solicitor made false
    declarations in registering a business name, and allowed clients to use false
    names in accounts. Apparently the solicitor did this to protect his prostitute
    clients from harassment. However the Court said (at 20) that this conduct “was
    not the conduct expected of a solicitor”.


General conclusions cannot be drawn without looking at the
individual circumstances of each case. 
However it is reasonable to say as a general proposition that lawyers
are expected to act with candour and honesty in their dealings with others, and
this outweighs their responsibilities to their clients.  As remarked in one of the leading Australian
textbooks on lawyers’ professional conduct, which cites the cases referred to
above, and numerous others: “Although making false or misleading statements to
the court clearly strikes at the heart of the administration of justice, for a
lawyer to knowingly or recklessly make false or misleading statements to
persons other than the court – whether to a client, an opponent, a professional
body or other tribunal, or otherwise a person who relies on those statements –
is likewise indicative of dishonesty. It therefore amounts to professional
misconduct, or at least unsatisfactory professional conduct.” Riley Solicitor’s Manual  [35,035].