Week 6 Lecture PDF

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Week 6 Lecture Admission to Practice Legal profession admission board (LPAB) the supreme court has jurisdicition to supervise the admission board. There are two main requirements for admission to practice: 1. Eligibility: education requirements 2. Suitability: Fit and proper person Relevant legislation   

Part 2.2 of the Legal Profession Uniform Law 2014 (NSW) provides for admission (ss15-25) Legal Profession Uniform Admission Rules 2015 (NSW) provide procedural requirements for admission and specify the academic qualifications and PLT NSW Admission Board Rules 2015 provide for the operation of the LPAB

Section 17 of the Legal Profession Uniform Law 2015 (NSW) states that you have to satisfactorily completed the practical legal training requirements, is a fit and proper person and has attained the academic qualifications specified under the Admission Rules. They must show evidence of qualifications (Rule 15) They must also show a disclosure statement where an applicant applies for a compliance certificate must include a statutory declaration by the applicant disclosing any matter to which a reasonable applicant would consider that the Board might regard as not being favourable. The applicant must be of good fame and character and a fit and proper person. Th applicant must make a full and complete disclosure under Rule 17. Under Rule 18 the applicant must provide a Police Report. Under Rule 18 you need to have a student conduct report. Under Rule 23 You must undertake a Health Assessment. Must do well in Legal Ethics! As shown in Legal Practice Board v Ridah [2004] WASC 263 practice of law requires knowledge and skill, practitioners must undertake a tertiary degree in law, followed by a period of training and supervision. Even when admitted they must practice for a further year in a supervised capacity. All of this training continues throughout a lawyer’s professional life so that the legal practioner is competent and skilled to advise their clients and to attend to their affairs. Suitability involves fit and proper and good fame and character. These things are taken into consideration: 1. 2. 3. 4. 5.

Dishonesty Political Activity Criminal Activity Personal Character Health

Evidence of Character Under Rule 16 you must provide a character reference where someone who has known you for at least two years mentions your honesty and integrity.

You need to make a declaration that you:           

Have not been admitted or refused admission in Australia or in a foreign country Are of good fame and character Have not been insolvent Have not been convicted of an offence Never illegally practised law in Australia Is not and have never been the subject of an unresolved investigation, charge, order or a complaint under the law or Legal Profession Uniform Law. Not the subject of current disciplinary action in another profession or occupation in Australia or a foreign country Have not been the subject of disciplinary action in a tertiary education institution in Australia Have never contravened a law about trust money or trust accounts Have never been subject to an order under the law or Legal Profession Uniform Law. Do not suffer from any mental illness or disability.

In Joy Onyeledo [2015] NTSC 60 (11 September 2015), academic dishonesty questions suitability and eligibility. Initially Joy did not take responsibility of plagiarism. The court said that “correct referencing is essential to the ability of courts and academic institutions to test arguments and verify sources, as well as demonstrate that honestly declared work that is not their own and attributed it to the original source”. In Micah Kickett [2018] NTSC 26 The fact that the applicant should have disclosed the plagiarism irrespective of whether there was any formal finding or not. Plagiarism is clearly academic dishonesty and the applicant should have disclosed it. Be excessive in your disclosure. Other cases:    

Re Humzy-Hancock [2007] QSC 34 (academic misconduct – admitted) Re Legal Profession Act 2004 and OG [2007] VSC 197 (academic misconduct not disclosed – removed from the roll of lawyers) Re LIveri [2006] QCA 152 (academic misconduct – hearing adjourned for 6 months) Re AJG [2004] QCA 088 (academic misconduct -hearing adjourned for 6 months)

Other issues for consideration           

Criminal convictions and arrests Making a false statement Misconduct in employment Dishonesty Abuse of the legal process Neglect of financial responsibilities Neglect of professional responsibilities Violation of a court order Mental health Drug and alcohol dependency Student conduct

In the matters of the Legal Practitioners Act 1970 and in the matter of an applcication by Hinds [2003] ACTSC 11 Contrary to popular belief the commission of a criminal offence or offence does not automatically result in a person’s permanent disqualification from admission as a legal practitioner. Re Davis (1947) 75 CLR 409 Wentworth v NSW Bar Association (Court of Appeal, unreported, 14 February 1994), where she made grave allegations against people with no foundations for those allegations other than her own “belief”. Re B [1981] 2 NSWLR 372

Conduct in another profession Re Hampton [2002] QCA 129  sexual abuse as a nurse XY v Board of Examiners [2005] BSC 250  she was admitted despite saying to an officer that she’ll kill them due to her mental state. See slides for additional cases. Mitigating factors       

Age Health External stressors Background Full disclosure Behaviour subsequent Ex Parte Lenehan (1948) 77 CLR 403

Must have integrity.

Discipline and regulation Unsatisfactory professional conduct under s296 includes “practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonable competent lawyer. Council of the Bar Association of NSW v Fitzgibbon [2010] NSWADT 291. Under s297 professional misconduct includes a) unsatisfactory professional conduct of a lawyer… substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence and b) conduct of a lawyer is not a fit and proper person S298 Conduct capable of being unsatisfactory professional conduct or professional misconduct     

Breaches for uniform law Charging excessive fees Tax offences A finding of guilt for serious offence Offences insolvency

        

Being disqualifies as a company manager Failing to abide by a disciplinary order or compensation order Breaches of confidentiality Interfering with witnesses Dishonesty, discurtousy and an lack of candour in court Acting in a matter where you know there is a conflict of interest Abuse of court processes A trust account defalcation Failing to fulfil an undertaking

Misconduct outside the practice may sometimes result in stricking of the roll. See Ziems v Prothonotary (1957) 97 CLR 279 at 283 or Prothonatory of the Supreme Court of NSW v P [2003] NSWCA 320. Factors to be considered following criminal convictions:     

Onus is on the complaint to show that the opponent is not a fit and proper person Striking off when probability that the solicitor is permanently unfit to practice The fact of conviction for a serious offence is not necessarily a sufficient reason for striking off Fact of conviction and imprisonment is far from irrelevant Guilty plea may act in their favour

Factors cont.  conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. NSW Bar Association v Cummins (2001) 52 NSWLR 279, 289. NSW Bar Association v Somosi (2001) 48 ATR 562. New South Wales Bar Association v Hammon [1999] NSWCA 404 at [85] The question is present fitness, not fitness at the time of the crim: Prothonotary v Del Castillo [2001] Hilton v Legal Profession Admission Board [2017] NSWCA 232  an understanding and acknowledgement of wrongdoing is vital to an assessment of rehabilitiation.

Complaints in NSW co-regulation

Any person can make a complaint, usually initated by clients to offices of legal services commission which is then submitted to NSW Law society or NSW Bar association. Consumer disputes do not involve misconduct e.g. poor communication, costs, mistakes, delays, handling of documents and poor service. Usually fixed by mediation and compensation. Disciplinary action may involve:     

Striking off Suspension Fine Reprimand Payment of comensation...