4 minute read
Ethics Column
Under Pressure to Falsely Certify
By Gino Dal Pont, Professor, Faculty of Law, University of Tasmania
It takes little time in legal practice to recognise that clients can be demanding, and are, on occasion, inclined to place undue pressure on their legal representative(s) to secure or facilitate a desired outcome. Apart from patent self-interest, client behaviours of this kind are often informed by a belief that lawyers owe a one-eyed duty to clients. And this may indeed align with lawyers’ own inclinations to keep clients satisfied, thereby increasing the scope for retaining clients and attracting new ones.
Yet some clients are hardly averse to their legal representatives “cutting ethical corners” when this may accrue for the clients’ benefit. There are manifold occasions where this might ensue, but a typical one — which may not register at the serious end of misdeed in the minds of some — may involve lawyers falsely certifying as to the witnessing or execution of a document, or to having given an explanation thereof. One may (albeit not legitimately, it should be observed) rationalise that certification requirements can be obviated for reasons of convenience and cost.
The disciplinary case law is littered with instances of lawyers who have engaged in false certification. Almost invariably, this has sounded in a finding of professional misconduct. In a leading case, Fraser v Council of the Law Society of New South Wales,
1 the appellant lawyer certified that he had explained mortgage documents to the mortgagors despite not having met the mortgagors or communicated with them. While not downplaying the seriousness of the lawyer’s misrepresentation, which was conceded to constitute professional misconduct, the New South Wales Court of Appeal unanimously viewed his behaviour as an isolated error of judgment that was the result of a momentary lapse. The lawyer’s candid acknowledgement of wrongdoing, coupled with his expression of contrition, led the court to set aside the tribunal’s order that he be struck off with the payment of a $7000 fine.
Multiple other cases have likewise responded to single instances of false certification by way of a reprimand coupled with a fine.2 The very number of disciplinary instances in this context may well suggest a “tip of the iceberg” in this regard, especially in that false certification can easily be masked with the client’s cooperation.
A danger, of course, is that a single instance of false certification for a client’s benefit can translate to a repetition of the wrongdoing. Yielding to client pressure once may prompt the same expectation thereafter, conveying to the client that the lawyer is willing to cut ethical corners in this (and possibly other) contexts where it may benefit the client. The lawyer may, to this end, tread a slippery slope, capable of incrementally numbing his or her ethical sensitivity, and thus triggering a rationalisation of unethical behaviour (including behaviour directed at benefiting the lawyer personally).3 Law is, after all, heavily concerned with process, and the utilitarian ethic of “ends justifying the means” rarely underscores ethical behaviour in legal practice.
It is little surprise, then, to find occasions in the disciplinary case law of lawyers who have succumbed to repeatedly making false certifications. Nor is it surprising that, on those occasions, the disciplinary sanction has proven more severe. In Victorian Legal Services Commissioner v Merhi, for instance, four occasions of false attestation and certification over a five month period produced a 12 month disqualification time frame.
Yet even an ostensibly isolated infelicity in this context can translate to a protective order. In Legal Practitioners Conduct Board v Rowe, a lawyer who arranged for a client to sign blank pages so that his affidavit could be printed onto them, without the client needing to attend to sign the document in question, was ordered not to apply for a practising certificate for three years. This was despite the fact that the misconduct was driven to avoid inconvenience to the client, and occurred against the backdrop of a largely unblemished lengthy practice career.
The lesson, in the words of a New South Wales tribunal in a recent case, is that “[p]ressure from clients and embarrassment are not and cannot be excuses for lapses in compliance by lawyers with their professional conduct obligations and should not affect the way a solicitor’s conduct is characterised”.6
For End notes please see desktop version
