Conduct and service

The invisible witnessOne of the most potentially dangerous practices solicitors seem to engage in is allowing themselves to 'witness' documents they have not actually seen being signed.

Often there is no malicious or dishonest motive but simply a desire to assist the client.

Whatever the motive, it is a practice that places the solicitor in potential jeopardy.

Cases reach the Office for the Supervision of Solicitors (OSS) which involve allegations that a solicitor has purported to witness a signature to a document when he has not, in fact, witnessed the actual signing.

This kind of thing often happens when the client is well known to the solicitor and would be inconvenienced by going to the office for the signing to take place.

There have been cases where the solicitor has sent documents to a client with instructions detailing how and where they should be signed and then asking for their return.

The solicitor then, presumably, 'recognises' the signature and endorses it as a witness.

Often no apparent harm is done and the subterfuge remains undiscovered.

However, unexpected developments can occur which result in the signature being challenged - this is when problems can arise.

The risks are bad enough when the solicitor does actually witness the signing.

Take the case of the married man who was well known to the firm involved, but whose wife was not.

He instructed the firm in the sale of the matrimonial home and when the time arrived for the documents to be signed he brought his wife to the office for that purpose.

Some weeks later, the real wife went to the solicitors demanding to know how they had acted in the sale of her house without her knowledge.

Her husband, taking advantage of his wife being abroad and his solicitor's ignorance of his estrangement from her, had coached his new girlfriend to imitate his wife's signature.

In his wife's absence he had succeeded in selling the matrimonial home and disappearing with the proceeds.

In this case the solicitors were blameless but the lesson to be careful is stark enough.The compliance and supervision committee take seriously any cases where a solicitor purports to witness a signature when he has not actually seen the signatory sign the document.

Such matters may well be referred to the disciplinary tribunal, where, if found, they are likely to attract, at the least, a substantial fine.

l Every case before the compliance and supervision committee is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.