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Dissecting dishonesty

Dissecting dishonesty

By Gino Dal Pont

Ethics 

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While expedience may tempt lawyers to falsely certify the witnessing or execution of a document, it is hard to avoid the conclusion that behaviour of this kind is dishonest.

Snapshot

  • Precepts of lawyer honesty are crucial to the confidence the public can place in the legal system and legal processes.
  • Lawyers found to have behaved dishonestly are accordingly candidates for professional discipline.
  • While “degrees” of dishonesty often translate to disciplinary responses, dissecting dishonesty in this fashion may not necessarily be apt.

It is trite to observe that lawyers owe an obligation – to their clients, to the court, and to the broader community – to act in a scrupulously honest fashion. The reasons for this are obvious, and indeed impossible to surmount. Dishonesty is punished by the criminal law, and forms a foundation for multiple causes of action in civil law too. Legal systems and processes of few, if any, civilised societies condone dishonesty, in turn reflecting longstanding social and religious mores in this regard.

That members of the legal profession, in a substantial way, provide the key to unlock (what for many are) the mysteries of the legal system and legal processes, and serve as a conduit to this end, makes it hardly surprising that lawyers are expected to uphold the law and the processes underscoring it. This in turn explains why, whether in a private or a professional capacity, dishonesty by lawyers in any form presents one of the greatest threats to public disrespect for the law itself. After all, if those charged with upholding the law – which at its core fosters honest behaviour – are seen or perceived to behave dishonestly, anarchy may not be a step too far removed.

It is curious, then, that repeated public polls inquiring into perceptions of lawyer ethics and honesty consistently rank lawyers relatively poorly (albeit, with not much in the way of consolation, well above journalists, politicians and car salespersons, and slightly above public opinion pollsters).1 Of course, the statistics deriving from public polls of this kind may be fickle. The fact that judges score much better than lawyers in this context, and yet are sourced almost invariably from the practising profession, speaks of the potentially capricious nature of poll outcomes. That Australian society does not, stemming from supposed poor perceptions of lawyer ethics and honesty, display a fundamental lack of respect for the law may present as a further compelling reason to query whether the polls do in fact reflect the reality.

Of course, the foregoing is not to say that lawyers are, whether inherently or by osmosis, inculcated with the demands of honesty. Every year lawyers are disciplined, and not infrequently struck off, for dishonest behaviour, both within and outside of legal practice. Indeed, if there is a singular feature of lawyer behaviour that is more likely to generate disciplinary sanction than any other, it is dishonesty.

There are, it seems, degrees of seriousness when it comes to lawyer (and other) dishonesty. In this sense, the Catholic distinction between mortal sin and venial sin appears alive and well here. For example, lawyers who tell lies to the court, or who steal client money, fall into the mortal category, and in a disciplinary context ordinarily receive a one-way ticket out of the profession.2 At the same time, it appears that falsely certifying the witnessing or execution of a document may, at least if the ostensible leniency of the disciplinary response provides any guide, lie more on the venial side of the moral equation.

In the seminal Australian case, Fraser v Council of the Law Society of New South Wales,3the New South Wales Court of Appeal ruled that a solicitor who certified that he had explained mortgage documents to the mortgagors but had neither met the mortgagors nor communicated with them, should be fined rather than struck off, viewing his behaviour as an isolated error of judgment. There are multiple other disciplinary decisions to the same end.4 While expediency, as opposed to any personal benefit or an ultimately dishonest objective, may well tempt (and sometimes drive) lawyers to falsely certify the witnessing or execution of a document, it is difficult to avoid the conclusion that behaviour of this kind is dishonest at its core, whether or not it has prejudiced anyone. As a consequence, it may be that in future lawyers who engage in this form of behaviour will not necessarily avoid a protective disciplinary order.5

 

Gino Dal Pont is Professor, School of Law, University of Tasmania.

 

 

1. The 2017 Morgan “Image of Professions” survey found that only 35 per cent of respondents rated lawyers “high” or “very high” in ethics and honesty, lawyers ranking 13th out of the 30 “professions” listed: see <www.roymorgan.com>.

2. See, for example, Council of the Queensland Law Society Inc v Wright [2001] QCA 58 (knowingly misleading the court); Prothonotary of the Supreme Court of New South Wales v Trimarchi [2003] NSWCA 385 (stealing from client).

3. CA (NSW), Kirby P, Handley and Cripps JJA, 7 August 1992, (unreported).

4. These are catalogued in GE Dal Pont, Solicitors Manual, LexisNexis Butterworths, Looseleaf, Vol 1, [35,040.20].

5. See, for example, Victorian Legal Services Commissioner v Merhi [2017] VCAT 1054.

 


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