Fined for signing an e-dealing before authorised
A solicitor, D, signed an e-dealing correct before he had an Authority and Instruction Form from his client. A lawyers standards committee found this was unsatisfactory conduct and censured D, fining him $2,000.
The standards committee commenced an own motion investigation into D’s action on a particular conveyancing transaction which had come to the committee’s attention.
In his submissions to the committee, D acknowledged that he had signed the e-dealing correct before the Authority and Instruction Form had been signed by his client. D claimed that this was excusable in the circumstances because the signing correct was part of a “series of transactions”.
The committee, however, said that this was a fundamental misunderstanding of the responsibilities of D’s role as a lawyer and an officer of the Court.
“The integrity of the electronic system of registration is potentially undermined by such an action,” the committee said. It noted that D could not have been absolutely certain he would later receive the necessary authority to sign the e-dealing correct.
The committee referred to the Property Transactions and E-Dealing Guidelines (July 2012) prepared by the New Zealand Law Society’s Property Law Section. At paragraph 1.16, the guidelines state: “Signing a paper instrument correct or certifying and signing an electronic instrument is not a mere procedural step…” Paragraph 1.17 notes that the purpose of signing such certificates is to assure the Registrar-General of Land that the instrument is correct. Paragraph 1.18 specifically refers to, and quotes, Rule 2.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
Rule 2.5 states: “A lawyer must not certify the truth of any matter to any person unless he or she believes on reasonable grounds that the matter certified is true having taken appropriate steps to ensure the accuracy of the certification”.
In this instance, the signing correct of an e-dealing is a significant responsibility of a solicitor, and “appropriate steps to ensure the accuracy of the certification” (as stated in Rule 2.5) are set out in the guidelines.
The guidelines state, in bold and partly underlined type at paragraph 8.25, that the “instrument(s) cannot be certified and signed until the A&I has been signed by the client”. This requirement is referred to again at paragraphs 8.31, 8.64 and 8.68 of the guidelines.
The standards committee noted that every lawyer is an officer of the court.
When D admitted signing the e-dealing correct without holding the required authority, the committee found that he was admitting to failing to follow the guidelines, and thus failed to meet the required standards of a lawyer as an officer of the Court and this was unsatisfactory conduct.
As well as the censure and fine D was ordered to pay $400 costs. The committee also directed that the Registrar-General of Land be notified of the determination.
Last updated on the 3rd June 2015