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Imagine yourself in the following situation: Joseph Smith, a long term client, comes to your office without an appointment. You know both Joseph and his wife Mary quite well. On the odd occasion, you have attended the same social functions. He comes to your office alone and has with him a mortgage document and a loan offer letter.

Even though you are quite busy, you take the time to see him in your client interview office. After initial pleasantries, Joseph tells you he and Mary are refinancing their home loan.  He then presents you with the loan offer letter and mortgage document.  The borrowers named in the mortgage document and loan offer letter are both Mary and Joseph Smith.   The mortgage appears to have been signed by Mary.

Mary is a health worker and because of her demanding work schedule, she was unable to accompany him at your office at this time.  Mary appears to have signed in the proper place for her name and opposite this signature is the wording “signed in my presence” along with some other wording.  Joseph suggests he will now sign and as you know Mary and know her signature, can you witness both signatures?

What to do?  You know him. You know Mary. You have on a number of occasions seen Mary sign her signature and the signature on the mortgage appears to be that of Mary. Where’s the harm?

Stop and think.  This little helpful act could have dire consequences.

The disciplinary cases against solicitors are littered with examples of cases where a solicitor has bent the rules to help a client and then found their practising certificate is on the line.  Many of these cases involve false attestation which is consistently found to constitute professional misconduct.  One example is Council of the Law Society of NSW v Walsh [2018] NSWCATOD 196 in which the Tribunal referred to the significant responsibility on a legal practitioner witnessing a document:

[9] .. that person represents to the world that he or she saw the person whose signature is being witnessed actually sign the document. This responsibility is significantly enhanced in circumstances where the document creates rights and obligations recognised by law…

[10] Legal practitioners are privileged to practice in an honourable profession and must act honourably at all times. Falsely and inaccurately representing that they have witnessed a signature on a document … is dishonourable conduct unbefitting a legal practitioner. It must be dealt with accordingly. We have no hesitation in finding the respondent guilty of professional misconduct.

False witnessing can also lead to a third party suffering a loss.  In this case it could be Mary, if her signature was forged and she found herself subject to a liability to repay the loan, or it could be the lender, if the mortgage is held to be unenforceable.  You can anticipate how a claim may be made against you.

You can also anticipate that you will not be covered for that claim by your professional indemnity policy.  Clause 12 of the Lawcover policy is in the following terms:

We will not indemnify an insured under this Policy when the claim arises, whether directly or indirectly, from any dishonest or fraudulent act of omission of that insured.

Joseph may be annoyed when you insist that he come back with Mary.  But part of being a professional is recognising that there will be times when you cannot do what your client is asking you to do.