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Citation; Legal Services Commissioner v Keough (Legal Practice) [2010] VCAT 108. Court/tribunal; Victorian Civil and Administrative Tribunal (VCAT) Sitting judges; Malcolm Howell (Senior Member) Messrs P. Shattock & R. Page (Members) Name of parties; Applicant- Michael Keith McGarvie, Legal Services Commissioner Respondent- William James Keough Date of judgement; 3 February 2010 Procedural history; The case was presided over by Malcolm Howell, Senior Member of the Victorian Civil Administrative Tribunal (VCAT), in a final hearing. The Tribunal found the respondent guilty of two counts of professional misconduct. The tribunal ordered the respondent’s practising certificate to be cancelled and the regranting of the certificate to not come into operation before 1 October 2010. Facts; In May 2005 the respondent submitted a research paper, which drew heavily from two related articles, most prominently, an article by Michelle Oberman and Joel Frader, and to a lesser extent, an article by Lainie Friedman Ross. Council for the respondent accepted that 50% of the paper submitted was extracted from these articles. The respondent failed to attribute the works, neglecting to mention and appropriately reference the articles. Despite the extent of the plagiarism, the respondent submitted the paper for publication in the

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student ID: 219218435

Journal of Law & Medicine in November 2005- without alterations being made to the original work, again neglecting to attribute the significant contributions to his paper. Editor of the Journal, Dr Freckelton, contacted the respondent about the substantial similarities between his paper and the articles of Oberman and Ross. The respondent in subsequent correspondences with Dr Freckleton, acknowledged that the articles comprised the foundations of his paper, but he had ‘put [his] own interpretations on the material’ [at 16], also asserting that the plagiarism was not intentional. In a written response to the Legal Services Commissioner’s complaint, in relation to the submission of his paper to the journal of law and medicine, the respondent claimed that ‘strangely’ [at 20] he had neglected the considerable extent to which his paper had drawn from the articles of Oberman and Ross. He later admitted that the time constraints which had prevented the originality of his first submission of the paper were not a circumstance in the journal submission of the paper. Issues; Is the respondent guilty of professional misconduct, for his submission of a paper which contained plagiarised material, when seeking a degree of Master of Health and Medical Law? Furthermore, is the respondent guilty of professional misconduct for the submission and subsequent publishing of the same paper in the Journal of Law and Medicine? Relevant Laws; The Legal Profession Act 2004 -s.4.4.3, stipulates that “professional misconduct” relates to the conduct of a legal professional in connection with the practice of the law, that ‘involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.’ This is pertinent to the respondent, as it outlines the expectations of a legal professional’s conduct, and what behaviour constitutes professional misconduct. The Legal Profession Act 2004 -s.4.4.4(c)(iii), stipulates that dishonest behaviour, for which there has been a finding of guilt, is an act that would be considered professional misconduct. This is pertinent to the respondent as it describes dishonesty as constituting professional misconduct – The respondent’s lack of candour in relation to the plagiarism of his paper would be considered dishonest.

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student ID: 219218435

The Legal Profession Act 2004 -s.4.4.16, stipulates that, should a tribunal find a practitioner guilty of professional misconduct, an order that the practitioner's practising certificate can be suspended or cancelled for a specified duration of time can be implemented as per s.4.4.17(b). This is pertinent to the respondent as, if he is found guilty of both charges of professional misconduct, he may be subject to losing his practitioners licence. Reasoning; In the conclusions of the tribunal, the tribunal made significant reference to the case of Michael Henry Pickering, a decision of the Solicitors’ Board, No. 746 of 1991. The tribunal made direct reference to the comments of the Solicitors Board in Dr. Pickering’s case @ 14, asserting that ‘“the copying of articles written by another without acknowledgement of that other’s authorship is, in the ultimate, directed either to self-aggrandisement or to the enlargement of the professional practice of the author by the holding out of learning and competence”’ [at 52]. The Tribunal rejected the respondents claims that he had merely failed to properly acknowledge the work of Oberman and Ross, again referring to comments made in Dr. Pickering’s case @14. The tribunal maintained that it was unlikely that an accomplished solicitor with much experience ‘“could fail unintentionally, when copying substantial portions of the work of others, to include a proper attribution of the authorship and also to seek permission for the use of such work for his own purposes”’ [at 54]. These comments also guided the Tribunal in its rejection of the respondents claim that he had ‘strangely’ neglected the extent to which his work was plagerised in his submission of the paper to the journal of law and medicine. The tribunal asserted that it was implausible that a solicitor of the respondents standing could ‘no longer [be] aware, of the extent to which he had made use of the work of others without acknowledgement’ [at 51], given the short amount of time between the papers original submission in May 2005 and the journal submission in November 2005. The tribunal distinguished between Dr. Pickering’s case and the respondent's case, maintaining that there is ‘no reason to doubt that Mr Keough did not set out to plagiarise. Also, Dr. Pickering’s plagiarism was more extensive than that of Mr. Keough’ [at 55]. The Tribunal emphasised the importance of general deterrence for such an offence, repeating remarks of the Queensland court of appeal in the case Re: AJG [2004] QCA 88, ‘“Legal practitioners must exhibit a degree of integrity which engenders in the Court

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student ID: 219218435

and in clients unquestioning confidence in the completely honest discharge of their professional commitments”’ [at 58]. Order; The tribunal found the respondent guilty of two counts of professional misconduct, for his submission of a paper which contained plagiarised material when completing a degree of Master of Health and Medical Law, and for his submission of the same paper in the Journal of law and medicine. The Tribunal deprived the respondent of his practising certificate for a period of 6 months, enacted from the 1 April 2010, and not being regranted another certificate that comes into operation until 1 October 2010. The Commissioner also sought that the respondent pays the Commissioner’s costs of the proceedings, which the tribunal was obliged to accept.

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