Admission Guideline & Example PDF

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Summary

Admission questions guideline & example...

Description

Suggested approach to an admission question: 1:

Jurisdiction – inherent jurisdiction of the Supreme Court supplemented by statutory jurisdiction in LPA:  

2:

Requirements for admission 



3:

s35 – Supreme Court (ordinarily CoA) “hear and decide” each application – including reference to advice from LPAB; power to impose conditions significantly, s31(3) – power to admit notwithstanding the existence of suitability matters

eligibility – s30:  18+  approved academic qualification  approved practical training suitability  s31 – “fit and proper person” –  suitability matters – s9  “other matters the SC considers relevant” - ref to C/L  s9  “good fame and character” – external and internal?  “insolvent under administration”  conviction for an offence – subject to 3 factors  range of factors related to previous legal practice  previous complaint in another profession or occupation

Eligibility  

consider whether meets 3 criteria for eligibility no need for long discussion unless there is some issue – eg foreign qualification

4:

Suitability – identify with appropriate precision disclosed conduct and treat each aspect independently

5:

Advise as to content of affidavit – NOT write it: advise as to the way in which the CoA will likely approach each relevant matter

6:

Identify any issues regarding (potential) non-disclosure  

what is the role of a lawyer moving admission? what significance might non-disclosure have for the lawyer moving admission?

7:

Determine whether any supporting materials would be advisable/required

8:

Likely outcome? … conditions?

Re Bateman

Patrick Bateman (PB) is an applicant for admission pursuant to s35 Legal profession Act, which empowers the Supreme Court to “hear and decide” an application for admission, and may refer to advice provided by the Legal Practitioners Admissions Board (s39 LPA). Notwithstanding the existence of suitability matters, the Court may exercise a discretion to admit an applicant (s31(3) LPA). PB has completed a Bachelor of Laws degree from the University of Brisbane (UB), and has also completed postgraduate practical legal training from UB. The facts indicate that PB meets the eligibility requirements set out in the LPA at s30. Disclosed suitability matters Suitability entails the concept of being a “fit and proper person” (s31 LPA) and being of “good fame and character” (s9 LPA). Section 9 is not exhaustive, and must be read in the light of s31 LPA: “Other matters the Supreme Court considers relevant”. PB has disclosed two convictions for criminal offences, and supplied a copy of an official police traffic history which shows 4 infringements. Conviction for assault The conviction should be assessed in the light of LPA s9(1)(c)(i)-(iii): 

Nature of the offence (s9(c)(i) – the offence does not involve dishonesty. The fact that no conviction was recorded is not relevant (see LPA s11). Assault, however, does suggest that, at the time, he was prepared to break the law, and that he resorted to violence in the face of an (unknown) dispute. He was also (presumably, but not conclusively) affected by alcohol. As a potential officer of the court, PB is presumed to be dedicated to the Rule of Law, which requires that disputes be settled by rational means, rather than the resort to violence. As such, an assault conviction seems to be inimical to being an officer of the court. Note that the penalty imposed ($150 fine) and the non-recording of the conviction suggests that the relevant conduct was regarded as minor by the court.



When offence committed and age at the time: The offence occurred in 2004 – now 13 years ago, and there has been no repetition of a similar offence. We are unsure of his age at the time, but might presume he was fairly young. Taking into account the three statutory factors, we could conclude that the offence may be taken to have significant effect on his current fitness. Conviction for “unlawfully gathering in or on a building or structure” (s9(1)(c) – refers (as above)



Nature of the offence: The offence is a property offence, and again involves no dishonesty, but does indicate a lack of respect for private property. Two factors are significant: firstly, no damage was caused to the property (a banner was hung from the building – it might be viewed differently, for example, if a slogan or similar had been spray-painted on the building (in which case the charge would have been wilful damage). Secondly, the offence arises out of deeply help political beliefs. In Re B (the Wendy Bacon case – referenced in Ch 2 - makes a number of points: political dissent is a necessary and desirable part of the democratic process, and that commitment to political principles is a desirable characteristic for lawyers. It also mentions that many highly respected lawyers have had a history of political activism).

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When offence committed and age at the time: The offence occurred in 2009 – now 8 years ago, and there has been no repetition of a similar offence. We are unsure of his age at the time, but might presume he was still fairly young. Taking into account the three statutory factors, we could conclude that the offence may be taken to have significant effect on his current fitness. That conclusion would be less secure if damage to the property had been involved.



Refusal to pay fine, and being imprisoned: again, this is an expression of principle. The election to serve time in lieu of the fine can equally be seen as a positive, demonstrating a preparedness to “take

the hard option” as a matter of principle. This, too, could be seen as a positive, reflecting the need for lawyers to act against their own self-interest on matters of principle (and compliance with the ethical obligations of lawyers).

Traffic history Disobey traffic signal



The offence obviously has no element of dishonesty, and does not in itself demonstrate a lack of respect for the law. As an isolated incident, it may simply reflect a momentary lapse in concentration. The penalty is statutorily fixed, so nothing turns on that.

Failing to keep left of double white lines

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(as above)

Driving with a prescribed blood alcohol concentration (BAC) of 0.10

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While a serious offence involving high risk to himself and other road users, a single instance of driving with a prescribed BAC is not likely to impact adversely on PB’s admission. If this offence were disentitling in relation to admission (or continuing suitability), the ranks of the profession (at all levels) might be somewhat lessened.

Driving an unregistered vehicle



It is unclear whether, at the time, PB was aware of the registration status of the vehicle, why he was driving it (an emergency?), nor do we know the circumstances under which it became unregistered (eg by an administrative error by PB). What distinguished this from other driving offences above is that maintaining registration (and hence third-party insurance) is a civic duty, designed to protect the interest of the public, such that if involved in a crash, third parties will be covered by the vehicle’s insurance. As an officer of the court, PB will be expected to comply with his civic responsibilities – eg paying appropriate amounts of tax. This is a less serious lapse re civil obligations. Again, as an isolated incident, it is unlikely to impact adversely on PB’s admission.

Conclusion: Based on the disclosed material, it is highly probable that the Board would issue a certificate (possibly qualified), and that PB would be admitted.

Undisclosed matters Misrepresentation of academic results. 

This is adapted closely from the case of Borhani: as it has not been disclosed, it will not impact of PB’s admission unless it comes to the knowledge of the Board and/or the Court. That is possible if his transcript is looked at closely by either the Court or the Board. In either case, further inquiries would be needed, either by an investigation by the Board, or the Court remitting the matter to a single judge of the Trail Division for findings of fact. Either process would likely result in the discovery of the provision of the transcript, recording the high GPA and the award of 1st class honours, which PN knows to be false. His duplicity may also be inferred from his (deliberate) lack of any mention in his applications to his academic “achievement”.



PB’s conduct in offering his transcript (1st class honours) knowing it to be incorrect amounts to a knowing misrepresentation to other members of the profession as to his academic achievement. If this information were available to the Board or the Court, the result would be (a) that the Board would in all probability refuse to issue a certificate, and that (b) that the Court would refuse admission (following Borhani).

Academic misconduct. 

Caught by s31: “other matters the Court considers relevant”, and by case authoryt (Re AJG, re Liveri)



Relevant factors:   

 

NOTE: crucial to identify the precise form of conduct leading to the finding, rather than relying on the board (and undifferentiated) concept of “academic misconduct” minor piece of assessment (10% of total assessment in a unit); non-citation of sources (require more information to determine if it is plagiarism (and hence a dishonest form of academic misconduct) or poor scholarship (see Humzy-Hancock eg failure to identify which parts of apassage of text have been quoted verbatim and which are the student’s own work – poor scholarship generally does not demonstrate dishonesty; occurred in first year of Business degree – (not in LLB and early in studies, when not, perhaps, familiar with the requirements of citation etc) total of punishment was 10% (ie reduction of the mark for that item to 0/10) indicates that not treated as a serious form of misconduct.

In itself, minor academic conduct in a minor assessment item in another degree in first year of studies is not something that would ordinarily present a problem for admission. Non-disclosure, on the other hand, if the Board/Court were aware of it, would present a serious problem. There are many cases which observe that lack of candour in disclosure may be considered more serious than the original misconduct – eg Re Liveri; Valvo (where Barr J observed that despite a serious offence resulting in a term of (suspended) imprisonment being imposed for Centrelink fraud 12 years prior to application would not have prevented admission, but the lack of candour with which Valvo approached the Court in his application was such that he refused admission. General obligations owed by counsel in making submissions to the Court Applications for admission are legal proceedings (despite their largely ceremonial mature). In advising an applicant and/or moving an application, you are establishing a lawyer-client relationship. As such, you are subject to all of the rules of conduct and obligations which attach to a lawyer. The issue here is that you are aware of the academic misconduct investigation, and also that PB has not included it in his disclosure. By appearing, you make yourself party to the filing of an affidavit which you know to be false (by omission). As such, you might be considered to be complicit in misleading the Court as to PB’s disclosure. Ordinarily, you should withdraw from representation if your client insists on making a false statement to the Court. A slightly more subtle problem exists: we are not aware of how you come to be aware of the information about the academic misconduct investigation. Such information is ordinarily confidential. It may be, therefore, that you cannot discuss the matter with PB, since to do so would involve disclosing confidential information. That may be resolved, since the person to whom you are disclosing is the subject matter of the information, and clearly already knows about it. The two options are, therefore, to raise the matter with PB or to withdraw. If you raise it with PB, and despite your advice that he should include it in his disclosure, he files the affidavit without reference to the academic misconduct, then you would be obliged to withdraw....