A Brisbane law firm principal who falsified two file notes has been suspended from practice for six months, and barred from holding a principal’s practising certificate for two years.
Bing “Darren” Han was charged by the Legal Services Commissioner (LSC) with providing false and misleading information to an opponent in a District Court matter in 2019 by creating file notes with 2016 dates.
In a Queensland Civil and Administrative Tribunal decision published today, Justice Brown also ordered that Han to be publicly reprimanded, complete the next available Queensland Law Society ethics referral course, and pay the LSC’s court costs.
The charge related to an incident in June 2019 when Han was a party in a civil matter, and through his legal representatives, provided two file notes, dated 5 and 6 April 2016.
The file notes related to what legal advice was allegedly provided to the plaintiff, which was a key question in the proceedings.
In September 2019, the plaintiff’s solicitors challenged the authenticity of the file notes, and sought to engage an expert to verify the dates of the file notes. The following month, Han affirmed a statutory declaration that stated “I say that the attached file notes dated 5 and 6 April 2016 were prepared after I was served with the Claim but not before 9 May 2019”, which triggered a report to the LSC.
In the hearing on June 29 this year, Han admitted the file notes were created between 1 April and 9 May 2019, and that he had provided falsified information through his legal representatives. He maintained however, that the contents were accurate according to his recollection of the meetings held on 5 and 6 April, 2016.
Han claimed factors which influenced his conduct included a lack of appropriate mentoring and/or guidance from a senior legal practitioner; an overwhelming workload; and limited staff and financial pressures at his Eight Mile Plains firm, Fenson & Co Lawyers.
“In this case, the conduct engaged in by the respondent was clearly misleading insofar as he created two handwritten notes which were produced for discovery and subsequently gave instructions that those notes had been created on or about the dates in 2016,” Justice Brown said.
“He was, on his own admission, ‘trying to cover (his) wrongdoing and protect (him)self’. His conduct was not only misleading but dishonest, given his attempt to cover up his wrongdoing by providing false information.
“In doing so, he failed to meet his fundamental duty to act with honesty and integrity and caused his solicitors to be unwitting parties to his conduct.”
Justice Brown described the behaviour as a “serious deviation from the level of conduct expected of a solicitor”.
In arriving at the penalty, Justice Brown considered factors including that Han had not erred in the nine years before the incident nor in the four years after; had co-operated with the LSC and made full admissions; and had provided references that supported the assertion his offending was out of character.
The LSC had argued for a two-year suspension from practice, which the tribunal considered “disproportionate”.