Ms Zou admitted that she knew the client had not signed the e-affidavit in her presence, and understood at the time that the purpose of witnessing the signature was to ensure that it was not forged or otherwise fraudulent. With that understanding, Ms Zou did compare the signature to others to verify it was correct. 

In support of her position, Ms Zou said she was assisting the client during a period when her office was closed for Christmas and was “too embarrassed” to seek assistance from another practitioner in the office who was an expert in the area because he was on holiday. She added she would have become aware of the consequences of her conduct had the circumstances of the timing been different. 

Ms Zou also submitted that by the time she formed the view that she had obtained the correctly witnessed signature from her client on the wrong form, the client was overseas. She did not gain any benefit, and neither did her client or any other party, or was put at any risk of loss by reason of the false attestation.

“The conduct complained of is of a serious nature and what the solicitor did is regrettable, as she has acknowledged, but it cannot in the circumstances be properly characterised as professional misconduct,” the Civil and Administrative Tribunal said. 

In the solicitor’s favour was her evidence, which was accepted, that she thought “witnessing” the signature on the e-affidavit meant “verifying” she had previously witnessed her client’s signature on an application in the same divorce proceedings. 

Also significant is the tribunal’s consideration and assessment when characterising the conduct is that the Commissioner accepted Ms Zou did not know the course of action she took to witness the facsimile signature as improper. The Commissioner accepted that it was a mistaken understanding of witnessing an e-affidavit. 

“The evidence before us also leads us to form the view that it is unlikely that the solicitor would err in the same manner again. We take into account her experience, that her misconduct was an isolated departure from proper professional standards, and that she acknowledged that her conduct was improper. 

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“Witnessing documents is a fundamental aspect of legal practice and a failure to do so properly whatever the circumstances requires a significant sanction and this is reflected in the protective orders that we make,” the tribunal submitted. 

The tribunal ordered that Ms Zou be reprimanded, pay a $3,000 fine within 60 days and undertake further education during an ethics course. 

The entire judgement can be read on AustLII and JADE: NSW Legal Services Commissioner v Zou [2021] NSWCATOD 139 (7 September 2021)