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Ethics: Look before you sign

Every Issue

Cite as: (2007) 81(3) LIJ, p. 78

The ethics of witnessing statements are clear.

A constant reality of transactional legal practice – that is, in conveyancing, leases and general commercial work – is the necessity to finalise paperwork before a certain date, in case finance lapses or a business is delayed.

This is stressful for all concerned because some clients see the signing-off phase as merely confirmatory.

However, the formalities are anything but automatic if the client brings in documents for execution and one or more signatures have already been appended to the lease or sale of business. It does happen and the prevailing wisdom is: “no big deal”.

In fact, even to raise this as an issue will sound so commercially unrealistic to some as to provoke cries of “get real”.

Often you will know the client so well that you think it is quite OK to sign your name as a witness to a signature, either because you know the handwriting and trust your client, or maybe even because you have spoken to the signatory on the phone just minutes before confirming the signature, in anticipation of a partner delivering the documents to you in the next 15 minutes.

You have probably taken this calculated gamble at least once, reasoning that you will have to be very unlucky to be caught.

Note, the above judgment call is not necessary where you have no real idea whether the signatory signed or not and are in a rush to get a transaction through, taking the word of a relatively unknown client. In that case, signing without actually witnessing the deponent sign, is far more perilous.

It might be thought that you will run the risk of an allegation of fraud if the signature is not that of the person it purports to represent, even if you had no intent to deprive anyone of any economic advantage or cause them any economic loss.

Such an intent is irrelevant if there is a possibility of non-economic prejudice.[1]

In Welham’s case,[2] Lord Radcliffe said “the intent to defraud existed when the false document was brought into existence for no other purpose than that of deceiving a person responsible for a public duty into doing something that he would not have done but for the deceit”.[3]

Lord Radcliffe also mentioned the difference between “deceiving, the essence of which is to bring about a state of mind, and defrauding, the essence of which is to bring about a course of action”.[4]

When we judge that someone (anyone) will not suffer if we sign as a witness in these circumstances, we are indisputably aware that we are taking that risk.

Does it really matter if the essential nature of the document is unchanged? You cannot know, for instance, that the document is not also intended as collateral for some other, confidential, transaction.

In fact, the risk of deceit on someone makes it easy for you to pronounce, when asked by a client to sign as a witness when there is nothing to actually witness, that it cannot happen unless the purported signatory is first produced.

Make your point without rancour and offer to visit the witness to obtain a re-signature, if there really is a deadline.

Stress that your reputation (and the client’s) depends on the formalities being seen as guarantees of bona fide intent by all parties.

If that argument seems plausible, return to the start of this column: what do you do when you do know the client very well and you are as certain as you can be that the relevant signature is genuine as to authorship and time of affixation?

Is it reasonable to sign as a witness?

Unfortunately, the ethical answer must still be “no”, because whether or not a forgery or fraud is technically precipitated according to law, you are not doing what you say you are doing.

You are not affirming that the signatory “signed in the presence of” yourself.

Forget about the criminal law – it is simply wrong to deceive in this manner, as an officer of the Court and as someone who holds themselves out as trustworthy.

If ethics alone are insufficient to convince on this, ask yourself if your client (after you do the deed) could have just enough to pressure you in other ways, in future?

Do we ever really know clients well enough to be certain of their future conduct?

ADRIAN EVANS is associate professor in law and convenor of Legal Practice Programs at Monash University.

[1] Welham v Director of Public Prosecutions (1961) AC 103, at 124 (per Lord Radcliffe); see also R v Ward (1727) 2 Str 747 (93 ER 824).

[2] Note 1 above.

[3] Note 1 above, at 125.

[4] Note 1 above, at 127.


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