3. Truth and Honesty - the Admission Process PDF

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TOPIC 3: TRUTH AND HONESTY: THE ADMISSION PROCESS Paula Baron and Lillian Corbin, Ethics and Legal Professionalism (Oxford University Press, 2nd ed, 2017) ch 1 (pp. 10 - 11); 3 (pp. 54 - 62)

REGULATORY FRAMEWORK Legal Services Council: make the Uniform Rules and monitors implementation of the law to ensure consistencies across the states and can issue guidelines except to handle professional disciplinary functions and complaints which is up to each jurisdiction. Commissioner for Uniform Legal Services Regulation: for raising awareness and promoting compliance of the Uniform Law. Handles professional disciplinary functions and complaints. Can issue guidelines to local authorities e.g. Law Society and Bar Association to ensure consistencies amongst participating states. Local Regulatory Authorities in each jurisdiction e.g. NSW Law Society and Bar Association NSW Regulatory Framework: Supreme Court: inherent jurisdiction and power of the control and discipline of lawyers. S 25, 264 LPUL LPAB: accredits aw courses and PLT. Administers admission applicants. S 6 LPUL. See Australia legal practitioner vs Australia lawyer. Office of Legal Services Commissioner: deals with complaints and disciplinary functions. NSW Civil and Administrative Tribunal (NCAT) : See Civil and Administrative Tribunal Act 2013 especially Schedule 5. Deals with complaints and disciplinary functions.

QUALIFIED TO PRACTICE LPUL: S 9: Objective and purpose of the law is to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so. S 121: Deals with employing disqualified or convicted persons S 6: “entity”: includes an individual, an incorporated body, a partner, an assignee or receiver of partnership “qualified entity”: Australia legal practitioner / law practice / Australian-registered foreign lawyer / foreign lawyer who is not Australian-registered but with limited practice of foreign law etc. Chapter 3, Part 3.3: Conditions for entitlement of practice. They can be statutory or discretionary e.g. categories of practice, compliance with admission conditions, trust money, provision to engage in supervised practice for 18 – 24 months) S 51*: Statutory condition to grant a practising certificate that the holder must notify the local LRA in writing within 7 days if charged with or convicted of a serious offence, a tax offence etc. See also R 15, Legal Profession Uniform General Rules 2015 S 53: Discretionary conditions S 86: Nature of automatic show cause event for an applicant for / holder of practising certificate includes bankruptcy or conviction for a serious/tax offence regardless committed while engaging in legal practice as an Australian legal practitioner / practising foreign law as an Australian-registered foreign lawyer S 88: Automatic show case event – holders must give written notice stating the event occurred within 7 days of it happening. and a written statement explaining why despite the event, still a fit and proper person to hold certificate within 28 days of it happening

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TOPIC 3: TRUTH AND HONESTY: THE ADMISSION PROCESS Legal Profession Uniform Admission Rules 2015 R 16: 2 statutory declaration for character evidence. R 17(1): Application for compliance certificate must include a statutory declaration (disclosing any matter to which a reasonable applicant would consider that the Board might regard as not being favourable to the applicant when considering whether the applicant is currently of good fame and character and a fit and proper person to be admitted to the Australian legal profession. R 17(2): Applicant’s duty to make full and complete disclose. R 26: LPAB issues the compliance certificate

ENGAGING IN LEGAL PRACTICE S 6:

“law practice” is a sole practitioner / law firm / community legal service / incorporated or unincorporated legal practice

Unqualified practice exposes the public to the risk of poor legal advice, representation, deception and obtaining professional services from uninsured entities - as well as damaging the reputation of the profession. It is unfair to solicitors who comply with all professional legislative and ethical obligations. Goes against the objective laid down in S 9, LPUL Unqualified Legal Practice ( https://www.lawsociety.com.au/practising-law-in-NSW/discipline-and-disqualification/unqualified-practitioners) S 10(1): Prohibits unqualified entities from engaging in legal practice (Penalty: 250 penalty units and/or imprisonment for 2 years) S 10(2): An unqualified entity is not entitled to recover any amount and must repay any amount received by engaging in legal practice. Any amount received can be recovered as debt by the payer. R 9, Legal Profession Uniform General Rules: lists the titles qualified entities may use. Paralegals not included in the list. The drawing of legal documents, forms or precedents of a legal nature may constitute engaging in legal practice. Merely completing forms or precedents by filling in the blanks can be ‘clerical’ or ‘administrative’ tasks and is unlikely to be engaging in legal practice  ACCC v Murray (2002) 121 FCR 428, 448: Misrepresentation of material aspect of business activity. Running will writing business.  Court held if a provider, who does not hold practising certificate, simply makes forms available for a consumer, that does not constitute provision of legal advice. However, if provider helps consumer select the appropriate form and assists by explaining the terminology or in completing the form, that would be considered to have contravened legislation prohibiting unqualified practice (S 10 LPUL). Advertising or Representing that an Unqualified Entity is Entitled to Engage in Legal Practice S 11(1): Prohibits advertising of unqualified entities. Must not represent or imply or state that the entity is entitled to engage in legal practice unless qualified (hold yourself out as a qualified legal practice). (Penalty: 250 penalty units) S 11(2): Prohibits a director / partner / officer / employee / agent of an entity from the same as per S 11(1) Legal Practice Board v Ridah [2004] WASC 263 (25 November 2004): Prosecution under the trade practises act. Held: As someone had been holding themselves out as legal practitioner serious contempt of court. He even appeared in Court. Engaging in Legal Practice Practice without admission as a solicitor ‘legal practice’ not defined in legislation but enunciated by the Courts in Cornel v Nagle [1995] 2VR 188 at 210 as (a)…doing something which, though not required to be done exclusively by a

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TOPIC 3: TRUTH AND HONESTY: THE ADMISSION PROCESS solicitor, is usually done by a solicitor and by doing it in such a way to justify reasonable inference that the person was doing it as a solicitor;...(c) by doing something which, in order that the public might be adequately protected, is required to be done only by those who have the necessary training and expertise in the law…” - Cornel was an practising without admission as a solicitor. S 6: ‘engage in legal practice’ includes practise law or provide legal services but does not include engage in policy work (e.g. developing and commenting on legal policy) ‘legal services’ means work done, or business transacted in the ordinary course of legal practice. Council of the NSW Bar Association v Davison [2006] NSWSC 65: Davison acting as a town planner or a barrister. Accepted that town planners worked extensively with a high degree of expertise in advising and assisting persons preparing and conducting cases in e.g. Land and Environment Court.  Held: provided advice that involved interpretation of law and legal rights or duties - which was deemed to be no longer his preserve - ' the preserve of the legal profession only'.  A person who gives advice touching on legal matters or who prepares documents having legal effect does not act as a legal practitioner by reason of those acts alone. Limiting the focus simply to the activities of conducting litigation, giving advice and drafting legal instruments fails to illuminate fully what is signified by the expression 'engaging in legal practice'. One may need to examine who performs these activities, as well as how, when and where they perform them  The expression to 'engage in legal practice' signifies to carry on or to exercise the profession of law. The carrying on of the profession of law is done by none other than a legal practitioner. Therefore, the expression 'engage in legal practice' means 'engage in legal practice as a legal practitioner' Legal Practice Board v Giraudo [2010] FCA 685: In 2001 – 2002, Adrian Domney conducted an automotive repair business. There were 2 separate disputes relating to the business at this time, both resulted in Local Court. Domney was assisted by a Giraudo, who is not and has never been a legal practitioner.  Legal Practice Board alleges that assistance involved doing things that can only lawfully be done by a duly certificated legal practitioner therefore it is a contempt of court.  Giraudo accepts that he prepared court documents and letters for client but says it was only as a secretary or scribe. He says that he gave no legal advice and that it was client who controlled what was put in writing. He accepts that he attended conference with client and other but did so in a clerical capacity. He says that he became an employee of the business and wrote letters and attended conferences in that role.  Issue: Practice without admission as a solicitor  Held: Contempt of court. No Conviction Davison v Council of the NSW Bar Association (2007) 69 ATC 402: Barrister had been found guilty of a failure to pay taxes over some 16 years, arranging his affairs so that his assets were placed outside the reach of ATO, and using money that would have been available to pay his tax debts to fund an ‘extravagant’ lifestyle. Barrister argued he ought not to be disbarred because he had never been convicted. NSW CA held that fitness to practise is a question of the minimum standards required of the special position of trust a barrister holds in the system of administration of justice. Convictions and dishonesty were only one path to disbarment. Here, the personal circumstances that might have mitigated against prosecution did not excuse the seriousness of barrister’s long-term misconduct.

ADMISSION REQUIREMENTS S 15: to protect the administration of justice and the clients of law practices by providing a system under which persons are eligible for admission to the Australian legal profession only if (a) they have appropriate academic qualifications and practical legal training, whether obtained in Australia or elsewhere; (b) they are fit and proper persons to be admitted. S 16: Must be 18 and over. S 17: Obtain qualifications tertiary and PLT (R 5 – 6 Admission Rules), declared and deemed fit and proper (R 10, Admissions Rules) - local regulatory office provided Supreme Court with compliance certificate. S 19(3): Disclose and declare fit and proper.

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S 19(6) – (7): Notice give on appropriate website for dispute of application. Any person may object to the issuance of compliance certificate. S 22: If allowed, oath of admission taken, effective upon signing of Supreme Court roll. S 25: Person admitted becomes an officer of Supreme Court S 28: If LPAB refuses an application, right of appeal to Supreme Court. Character Based Requirements & List of Suitability Matters:  Previous criminal behaviour  Previous improper conduct  Infirmity  Non-disclosure of previous impropriety  Mitigating factors List of suitability matter not exclusive, admitting authority may consider any other matter that may be relevant. It may include criminal proceedings that have not resulted in convictions; prior history of depression circumstances in which applicant left the army, unresolved contempt allegation arising out of litigation conducted by the applicant. Application http://www.lpab.justice.nsw.gov.au/Pages/forms-fees/admission-forms.aspx  Form 10: Application  Forms 3A or 3B Character References  Note S 21 (Form 4) Early consideration of suitability  Guide of Admission (LPAB) Note P 24 - 32 re. Disclosures  Consequences of failing to disclose - refused admission or revoked compliance certificate or struck out. Statutory Declaration re nothing to declare. Police reports and checks, driving records, debts, student conducts

FACTORS TO CONSIDER          

Nature of offence Circumstances surrounding the offence Applicant’s age at the time of the offence Time that has elapsed since the commission Exhibit remorse? Rehabilitation activities of the applicant Contributing to society? Candour/Disclosure Honesty See Admissions Rules Rule 10. and Guidelines (include traffic fines and offences) and outside of Australia.

CAPACITY In addition to matters of fitness, including criminal charges, academic misconduct and traffic infringements, disclosure of matters relating to capacity (physical impairment, mental illness or

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TOPIC 3: TRUTH AND HONESTY: THE ADMISSION PROCESS addictions) are recommended by guidelines published by the admitting authorities. The disclosure are not meant to ‘diminish or supplant in any way an applicant’s personal duty to disclose any matter which may bear on the applicant’s fitness for admission’. (Debra Mullins, ‘Warts and All: The Impact of Candour in Assessing Character for Admission to the Legal Profession’ (2009) University of Queensland Law Journal 362

ACADEMIC MISCONDUCT While academic misconduct is serious even where this is a single incident or the act is prompted by external stresses, it does not automatically preclude admission. Re AJG [2004] QCA 88 (Unreported, de Jersey CJ, Jerrard JA and Philippides J, 15 March 2004: Disclosed plagiarism in PLT course.  Queensland CA found that applicant’s single incident of academic misconduct rendered them unfit for practice.  Held: cheating in PLT course so close to the application of admission must preclude our presently being satisfied of the applicant's fitness. Application adjourned for 6 months.  ‘[l]egal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional duties’  Requirement to disclose a slur in character in particular indicates dishonesty, whether honest in the way they get their knowledge as a student is important and a predictor of practice Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 250: OG failed to disclose collusion when studying at admission. The person colluded with ended up being questioned and the practising certificate was revoked due to failure to make full and frank disclosure of the facts of the collusion.

DISHONESTY (Conduct Prior to Practice) ‘Honesty ad truthfulness are at the heart of legal system and fundamental in practice of law. Utmost importance that public confidence being maintained. Legal practitioners play integral part in the administration of justice. The obligations that accompanies the position are commensurate with the responsibilities involved. The duties include to uphold the law, to the court, clients and general duty to public. The court and the public demand high standards: Legal Practitioners Conduct Board v Boylen [2003] SASC 241 A lack of candour gives at least equal significance with the dishonesty itself: Re Liveri [2006] QCA 152 (Unreported, de Jersey CJ, McMurdo P and Williams JA, 12 May 2006) R 4.1.2: A solicitor must be honest and courteous in all dealings in the course of legal practice. S 15, 17(1)(c) LPUL & R 10 Admission Rules: ‘Fit and proper’: honest, has respect for the rights of others and for the law, is trustworthy and committed to judicial process and the efficient administration of justice. Suitability may be re-considered under S 45(2) when practising certificates are being renewed annually (S 44). Relies heavily on disclosure by applicants as the role of LPAB is not inquisitorial and full and frank disclosure of past conduct may also indicate an applicant’s insight as to the relevance of the conduct for admission purposes, and in turn, influencing the admitting body’s decisions re. fit and proper. Admissions Fitness to practise must have the personal confidence of clients, fellow practitioners and judges: Re Davis [1947] HCA 53; (1947) 75 CLR 409: Appellant’s lack of candour about past conduct saw him disbarred.   Discovered a year after his admission as a barrister that he had not disclosed a conviction for breaking and entering (an offence that had occurred in 1934, when he was 20 years old). His subsequent conduct had been beyond reproach and the conviction occurred 12 years before the admission application. No other breaches that affected his good fame and character  Nevertheless, failure to disclose the incident called into question his ‘intrinsic character’. Not fit and proper to be a member of the Bar. The Bar is no ordinary profession. Duties and

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

privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges. It would also seem to go without saying that conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing is incompatible with the admission to the Bar. Held: Latham CJ observed that such failure to disclose ‘in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947 [the year the case was heard] a man of good character’ at [416 – 417]

Outside Australia R 18, Admission Rules: Applicants no longer required to supply foreign police reports when they apply through the Admission Portal. If you are disclosing to the LPAB that you have a criminal conviction in a foreign country, you may wish to anticipate that the relevant foreign police report is likely to be required. Conducts For the Purpose of Statutes Situations including charging excessive costs, where there is a conviction of a serious criminal offence, offence involving dishonesty, giving of false or misleading evidence: Dishonesty re. source of bail money: Re B [1981] 2 NSWLR 372:  Wendy Bacon, a well-known and journalist, applied for admission to the bar. With her application, she submitted a number of very favourable references from well-regarded members of the public and the profession. She also included all information concerning former arrests and convictions for her political activities.  Bar Association refused her application based on her political and social activism. Main reason for her admission being refused by the court related to her action in standing bail for a prisoner (SS).  Bacon claimed that the bail money were obtained by way of a loan from a close friend of both SS and Bacon, VA. Who had recently inherited the money. Court found that a third friend and barrister, L, had conveyed the funds from SS’s Melbourne sources to Sydney in order to be used for SS’s bail application. Bacon did not call any of the relevant parties (SS, VA or L) as witness to support her claim.  Held: Court did not believe she borrowed bail money from friend for a prisoner. Issue was good fame and character. She was dishonest concerning the bail incident. Abuse of Process Wentworth v The NSW Bar Association (1992) ALRJ 663:  Frequent litigant. Application for admission opposed by Bar Association  Held: Campbell J, in the lower court found that she was not of good character and lacked understanding what the proper conduct was in relation to the making of application constituting to abuses of process of court and that situation was unlikely to change. Issue was good fame and character. Court has the discretion to decide if suitable for admission.  Pay R's costs of appeal and not suitable for admission. Unrecorded Conviction Re Hampton [2002] QCA 129 (Unreported, de Jersey CJ, Moynihan SJA and White J, 5 A...