Essay Assessment II - Grade: 84/100 PDF

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Domenico Portolesi 45641374

I Introduction Evaluating legal practitioners' fitness and competence to practice is essential to sustain a high degree of integrity in the court to ensure justice within the legal system. Oversight of personal conduct is required for legal practitioners to adhere to the framework of professional responsibility, which sets out the fundamental duties that are owed by a legal practitioner to the courts and the client. These duties are regulated by the NSW Law Society and NSW Bar Association, in which they have established an outline of codes such as the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 20151 which govern the expectations that legal practitioners must follow in order to uphold a standard of professional responsibility. Academic misconduct tarnishes one's professional integrity and proficiency and raises concern as to whether individuals who have been involved in academic misconduct, should be allowed to practice law. In this essay, I will argue that academic misconduct should be grounds to refuse admission for the practice of law.

II Statutory Requirements for Admission The Legal Profession Uniform Admission Rules 2015 sets out the requirements to be admitted and inherent requirements for the practice of law in NSW. Under 17(1) it states that an applicant must have completed the academic qualifications and the necessary practical legal training. The applicant must demonstrate to the court that they are of ‘good fame and character’ and a ‘fit and proper person’2. It is also essential, under 10(1) of the Legal Professions Uniform Admission

1 Legal Services Council, Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (at 1 July 2015). 2 Ibid r 17(1). 1

rules3 to provide a student conduct report and a police report, which conveys to the board that the applicant is suitable to practice law in NSW. This assessment of suitability under 21(1) of the Uniform Admission Rules4 is inclusive of all matters that are deemed applicable by the court, such as academic misconduct. Furthermore, It is necessary for court regulators to review one's private life before admitting them to the bar, as it allows the public to have a reliance on the legal system. This is refuted in Legal Services Commissioner v Ge5, in which the practitioner fabricated academic transcripts, which were misleading to potential employers. The tribunal found that the practitioners’ actions amounted to academic misconduct which contravened the codes set out in the Uniform Admission Rules6, and was, therefore, refused a practicing certificate for 2 years. In applying this, it can be seen that the actions of the practitioner discredits their integrity and disrespects the duties owed by a lawyer thus, diminishing their character. These rules are put in place not only to serve the interests of the courts but mainly to protect the public, to ensure that the lawyers advocating for them uphold a high standard of integrity7. Evidently, integrity in the legal sphere is an important aspect that strengthens confidence in the system, which is why it is crucial that practitioners must present themselves to the court with high integrity, and respect the requirements for admission to practice in order to serve the public interest. It is for this reason, that refusing admission to the practice of law due to academic misconduct is justified with respect to the public interest. III Disclosure of Academic Misconduct Moreover, It is the duty of the court and Board of Examiners to ensure that the ethics and morals of a legal practitioner align with the courts and that they act with candour and integrity, in and 3 Ibid r 10(1). 4 Ibid r 21(1). 5 Legal Services Commissioner v Ge (2016) NSWCATOD 25. 6 Uniform Admissions Rules (n 1). 7 Francesca Bartlett, 'Student Misconduct and Admission to Legal Practice -New Judicial Approaches' (2008) 34(2) Monash University Law Review 309, 315.

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outside the courtroom, for justice to occur. It is essential for the Board to examine instances which may discredit the applicant's character, in order to corroborate the suitability of the individual. Under 19(2) of the Uniform Admissions Rules the applicant must disclose any disciplinary action taken by the university, in regards to academic misconduct8. Accordingly, it is the duty of the applicant to inform the court of any academic misconduct that has occurred prior to being admitted to the practice of law. In Law Society of Tasmania v Richardson9, in which an applicant seeking admission to the bar failed to disclose an occurence of academic misconduct. Arguably, one's failure to disclose academic misconduct discredits their ability to complete the onerous duties that are owed by them to the courts and clients. Hence, It is unlikely that the Board of Examiners would deem an applicant ‘fit’10 for practice if that individual makes the informed decision not to disclose the academic misconduct. As failing to disclose information about one’s academic misconduct contravenes the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 which states in 19(1) that ‘a solicitor must not deceive or knowingly or recklessly mislead the court’11. Furthermore, it is known that the legal profession requires a lawyer's utmost candour and honesty, which is why failing to disclose of academic misconduct should be grounds to refuse admission, as it discredits the integrity of the individual and admitting a person of this character to the practice of law could lead to miscarriages of justice in future instances.

IV Professional Responsibility Additionally, legal practitioners have a duty to act in a professional manner which means there is

8 Uniform Admission Rules r 19(2) (n 1). 9 Law Society of Tasmania v Richardson (2003) TASSC 71 10 Uniform Admission Rules r 7(1) n(1). 11 Uniform Admissions Rules r 19(1) (n 1). 3

an obligation to obey the law and put the needs of their clients first. It is imperative that they conduct themselves in order to not contrast the responsibilities owed to the court and clients. In rule 4.1.4 of the Uniform Conduct Rules (Solicitors), it states that a solicitor must ‘avoid any compromise to their integrity and professional independence’12. It can be seen that academic misconduct grossly diminishes one's integrity and therefore their professional responsibility that is owed by them. Further, Jacobson argues that integrity is a significant aspect of the legal profession and therefore refusal of admission to practice to law due to academic misconduct is warranted13. This reinforces the notion that an individual who is involved in academic misconduct may likely be involved in misconduct in the professional sphere, as it reflects the character of the person and undermines one's professional responsibility and integrity. Manifestly, academic misconduct can be seen as a reflection of the individual's character and devalues one’s fitness and suitability to practice law. It is apparent that academic misconduct should be grounds to refuse admission, as it is a violation of a legal practitioner's professional responsibility which could lead to a grave obstruction of justice in respect to the public.

V Limited Understanding on Academic Misconduct On the contrary, it can be argued that students undergoing their law degree lack understanding of the severe repercussions academic misconduct can cause in regards to their future career as a legal practitioner. Evans raises the notion that an oath to obey code of ethics and uphold the law is taken by legal practitioners before being admitted to practice, consequently, law students

12 Ibid r 4.1.4. 13 Caroline P Jacobson, 'Academic Misconduct and Bar Admissions: A Proposal for a Revised Standard' (2007) 20(3) Georgetown Journal of Legal Ethics 739, 739-740.

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should be educated about moral ethics beyond one legal ethics unit, but throughout the degree14. Due to the insufficient amount of knowledge that law students have on the subject of legal ethics and what constitutes for academic misconduct, this could cause students to mistakenly plagiarise or collude, without being aware of the severity of their actions. Moreover, Thomas mirrors this view, stating that ‘Many arrive in tertiary education without a clear understanding of the unique view of academic propriety’15. Therefore, students may be unfamiliar with academic misconduct and the problems that they may face once applying to be admitted to the practice of law. Despite the limited amount of education on the ethics of law, there is still an adequate understanding of the consequences of academic misconduct that is taught to students as legal ethics units promote the difficulties of being admitted to the practice of law as a result of academic misconduct. Thomas continues to say that although university students often begin their degree with a lack of understanding about academic misconduct, they are sufficiently educated on the issue as it is ‘embedded deeply in university culture’.16 As a result, students are made aware of the duties and responsibilities owed by a legal practitioner and are somewhat informed about the ramifications of academic misconduct. Thus, the refusal of admission to the practice of law due to academic misconduct is justified.

VI Conclusion In conclusion, it is required for legal practitioners to sustain a high degree of integrity and competence in order to serve the public interest and therefore maintain trust in the legal system. It is integral that the legal ethics of a lawyer correspond with the courts to ensure just outcomes, 14 Michelle Evans, ‘Plagiarism and Academic Misconduct by Law Students: The Importance of Prevention Over Detection’ (2012) 17(2) International Journal of Law and Education 99, 99-100. 15 Mark Thomas, 'Admission as a Lawyer: The Fearful Spectre of Academic Misconduct' (2013) 13(1) Queensland University of Technology Law Review 73, 79. 16 Ibid. 5

as lawyers have a professional responsibility to uphold the law. Evidently, academic misconduct undermines one's ability and fitness to practice law as it contravenes the duties owed by a lawyer to clients and the court. Despite, limited knowledge one may have on academic misconduct, there is an adequate understanding surrounding the consequences it may have on being admitted to the practice of law in future. Thus, academic misconduct should be grounds to refuse admission to the practice of law in order to ensure public confidence in the legal system and for integrity in the legal profession to be maintained.

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