Buckling under pressure when it comes to professional conduct and complying with the rules can have long lasting and devastating effects. A VCAT decision in late 2021 found a practitioner, who did just that, guilty of unsatisfactory professional conduct. This case is a salutary reminder for all practitioners to step back and consider the consequences before they feel pressured into doing the wrong thing.
The circumstances of the VCAT decision involved a practitioner who attested to having witnessed the signatures of three people on three separate affidavits without actually seeing them sign the documents. The matter involved a family law proceeding in which the practitioner’s client was asserting they were in a de facto relationship. The affidavits supported the existence of the de facto relationship. They were prepared by the practitioner based on written information from the deponents and additional information given to the practitioner by their client. That is, the practitioner augmented the information given by the deponents without speaking to them about the additional information.
The client delivered the affidavits to the deponents and had them sign the documents. When the affidavits were returned to the practitioner they saw the documents were not witnessed and there was very little time left to file them. Rather than returning the documents to the deponents to be properly signed and witnessed, the practitioner attested to witnessing the signatures without having seen them signed and also without speaking to the deponents or administering the oath or affirmation. It was a lapse in judgement that had considerable consequences.
The matter went to a hearing and the evidence of the deponents was found to be false, as was the witnessing of the affidavits. The client lost their case. As a result of the practitioner’s drafting and false witnessing of the affidavits the practitioner was ordered to pay 25 percent of the costs of the proceeding. Charges of unsatisfactory professional conduct were then brought against the practitioner by the Victorian Legal Services Commissioner.
While it was clear that the deponents had signed the affidavits VCAT found in the disciplinary proceedings that it was not satisfactory for the practitioner to have drafted the affidavits as they did without giving the witnesses the opportunity to consider and change the wording. The tribunal member also found that falsely attesting the three affidavits amounted to misconduct at common law as such behaviour would be regarded as disgraceful and dishonourable by legal practitioners of good repute and competence.
The tribunal member acknowledged the impressive character references provided and the good work the practitioner had done in the community. There was also a general reference to the difficult personal circumstances the practitioner had been in at the time. The behaviour, the subject of the charges, was described as a ‘lapse’. Nevertheless, given the seriousness nature of it the tribunal reprimanded the practitioner and ordered they attend ethics and professional responsibility training, pay a penalty and the Legal Service Board and Commissioner’s costs.
When practitioners and clients are under pressure, cutting corners might sometimes seem like an option to “help” the client. This case is a good reminder that doing the best you can for your clients often means you need to stop, step back and think about the options and consequences. Ignoring your legal obligations is never a good option. If necessary talk to a colleague, the LIV ethics help line or a risk manager at LPLC to help you get an objective perspective and alternative strategy.
When taking on matters with short timeframes think carefully about whether you really have the capacity to do the work to the required standard in the time frame.
When preparing affidavits for witnesses it is important to go through the affidavit with the witness to ensure the content is correct and ensure the witness understand the importance of the affidavit and the oath or affirmation they have to give.
There are some obligations as practitioners that are simply ‘not negotiable’, and one of these is strict adherence to formal requirements when witnessing documents and declarations and attesting affidavits. It is never ok to attest to having witnessed a signature if you didn’t see it being signed. Don’t let anyone or anything pressure you into doing that.
Remember also that LPLC’s insurance policy requires any practitioner who witnesses or purports to witness a document without seeing the actual signing or execution of it to personally repay any amount paid by LPLC to resolve a claim (including defence costs) arising from such false witnessing (Clause 14 of LPLC’s contract of insurance).