Queensland Law Society

Council of the Law Society of New South Wales v Renfrew [2019] NSWCATOD 63

Council of the Law Society of New South Wales v Renfrew [2019] NSWCATOD 63

Catchwords

Professional misconduct; Swearing on an affidavit knowing or ought to have known to be false

Executive summary

The Respondent committed substantial breaches of her professional duties by knowing that a will, an application of a grant of probate and a written response to a fellow legal practitioner were false. Primary orders included a reprimand and supervisory order along with orders for further education.

Background

In 2010, the respondent was engaged by KC and her son, DC to draft their individual wills. It was a requirement by law that in order for these wills to be valid, they were to be witnessed in the presence of two people. The respondent was the sole witness to both KC and DC’s wills. DC and KC passed away in 2015 and 2016 respectively.

The respondent met with the surviving children of KC and provided them with copies of her will and certified these copies as being true and correct. However this was not the will signed by KC as it contained two witness signatures.

The respondent then acted for the executor of KC’s estate and obtained probate using the will containing the two witness signatures and did not inform the court of the fact that the second witness signature was not made at the time KC signed the will.

The respondent provided a certified copy of the Grant of Probate to one of the beneficiary’s legal representative, RB who noticed and queried the discrepancy between the will with one witness signature and the will with two witness signatures. The respondent falsely responded to RB regarding the two witnesses.

Issues

The respondent admitted that she had prepared and witnessed an affidavit that was false, attempted to mislead the Supreme Court of New South Wales by filing documents she knew were false and attempted to mislead RB by her response to his query over the two wills. Whether the respondent’s admitted conduct amounts to professional misconduct and the orders that should be made for such conduct?

Issues considered

The Tribunal assessed the respondent’s present fitness to practise, and considered that an order for removal should not be made unless the Tribunal is persuaded of the respondent’s “probable permanent unfitness”[1] for practice. The Tribunal formed the view that the respondent was unlikely to err in the same manner again and expressed remorse[2] throughout the proceedings for her failure to observe professional standards. The Tribunal took into consideration the respondent’s experience and the fact that she did not have prior history of any improper conduct and the fact that the respondent had continued to practise at her firm, and was not suspended by the Law Society. The Tribunal considered a number of character references provided by respected members of the community to be significant.

They concluded that ordering the respondent to practise under supervision will be beneficial for the respondent. The Tribunal was satisfied that the respondent was not a continuing risk to the profession, nor regarded as being permanently unfit to practise. The public reprimand imposed by the Tribunal, was ordered to build confidence in the public, that practitioners who do not conduct themselves in the appropriate manner will be dealt with accordingly.

 

Giselle Kilner-Parmenter

Ethics Clerk

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics and Practice Centre



[1] Council of the Law Society of New South Wales v Renfrew [2019] NSWCATOD 63, [97].

[2] Ibid [99].