Professional Conduct

WEEK 1 – MORALITY AND THE LAW ..........................................................................................4 ETHICS ..................................................................................................................................................4 PRACTICE OF LAW AS A PROFESSION ...................................................................................................5 FEATURES OF THE PROFESSION ............................................................................................................6 LAWYERS OWE A DUTY TO ...................................................................................................................6 REGULATORY FRAMEWORK .................................................................................................................7 SR R 3 – PARAMOUNT DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE .........................7 SR R 4 – A SOLICITOR MUST ................................................................................................................7 SR R 5 – A SOLICITOR MUST NOT .........................................................................................................7

NSW Bar Association v Cummins (2001) 52 NSWLR 279 ...............................................................8 BARRISTERS RULES..............................................................................................................................8

WEEK 2 – ADMISSION TO LEGAL PRACTICE ...........................................................................9 LEGISLATIVE MONOPOLY ....................................................................................................................9 ELIGIBILITY FOR ADMISSION ................................................................................................................9 SUITABILITY MATTERS .......................................................................................................................10 FORM FOR ADMISSION ........................................................................................................................10 FIT AND PROPER TEST.........................................................................................................................10

Frugniet v Board of Examiners (2002) VSC 140 ...........................................................................11 Victorian Lawyers RPA Ltd v X (2001) VSC 429 ..........................................................................11 Skerritt v The Legal Practice Board of Western Australia (2004) WASCA 28 ..............................11

CRIMINAL DISCLOSURES ....................................................................................................................11 Re Davis (1947) 75 CLR 409 .........................................................................................................11 Ex parte Lenehan (1948) 77 CLR 403 ...........................................................................................12

GOOD FAME AND CHARACTER ..........................................................................................................12 Re B (1981) 2 NSWLR 372 .............................................................................................................12

ACADEMIC MISCONDUCT ..................................................................................................................13 Law Society of Tasmania v Richardson (2003) TASSC 9 ..............................................................13 Re Legal Profession Act 2004; re OG a lawyer (2007) VSC 520 ..................................................13 Pothunters of the Supreme Court of NSW v Hendrick Jan van Es (2014) NSWCA 169 ................13

HEALTH DISCLOSURE .........................................................................................................................14 BARRIER TO ADMISSION .....................................................................................................................14 AFTER ADMISSION ..............................................................................................................................14 ONGOING REQUIREMENT OF DISCLOSURE .........................................................................................15

WEEK 3 – DUTY TO THE CLIENT ................................................................................................15 LEGAL RELATIONSHIP ........................................................................................................................15 FEATURES OF LAWYER/CLIENT RELATIONSHIP ..................................................................................15 REASONABLE PROSPECTS OF SUCCESS...............................................................................................16 PRELIMINARY WORK ..........................................................................................................................16 DETACHMENT ....................................................................................................................................16 REPRESENTING YOURSELF AS A LAWYER ..........................................................................................16 COMPETENCE AND CARE ....................................................................................................................17 EFFECTIVE AND PROPER COMMUNICATION .......................................................................................17 CONFIDENTIALITY ..............................................................................................................................17 WAIVER ..............................................................................................................................................18 PROFESSIONAL PRIVILEGE .................................................................................................................18 TERMINATION OF RETAINER ..............................................................................................................20 CAPACITY ...........................................................................................................................................20

WEEK 4 – DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE ................21 DUTY TO COURT PREVAILS ................................................................................................................21 RELEVANT SOLICITORS RULES ..........................................................................................................21 RELEVANT BARRISTERS RULES .........................................................................................................21 ADVERSARIAL SYSTEM ......................................................................................................................22 ACTING EFFICIENTLY .........................................................................................................................22 HONESTY WITH THE COURT ...............................................................................................................23 WITHHOLDING AND DESTROYING DOCUMENTS .................................................................................23

McCabe v British American Tobacco Australia Services Limited (2002) VSC 73 ........................23

WEEK 5 – DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE ................25 WITNESSES .........................................................................................................................................25

Re Equitcorp Finance Ltd [1992] 27 NSWLR 391 ........................................................................25 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 .....................................................................26

IMPROPER QUESTIONS TO WITNESSES ................................................................................................27 Libke v The Queen (2007) 230 CLR 559 ........................................................................................27

ALLEGATIONS OF SEXUAL ASSAULT ..................................................................................................27 PLEADINGS AND SUBMISSIONS ..........................................................................................................27

Ashby v Commonwealth of Australia (No 4) (2012) FCA 1411.....................................................28 UNDERTAKINGS .................................................................................................................................28

Law Society of NSW v Krayem (2004) NSWADT 240....................................................................28 COMMUNICATING WITH THE COURT ..................................................................................................28

R v Lars (1994) 73 A Crim R 91 ....................................................................................................28 Witham v Holloway (1995) 183 CLR 525 ......................................................................................29 Attorney-General for State of Queensland v Colin Lovitt QC (2003) QSC 279 ............................29

COMMUNICATING WITH OPPONENTS .................................................................................................29

WEEK 6 – DUTY TO DISCLOSE COSTS ......................................................................................30 REGULATORY FRAMEWORK ...............................................................................................................31 COST DISCLOSURES ............................................................................................................................31 FAILURE TO DISCLOSE ........................................................................................................................31 COSTS DISPUTES .................................................................................................................................31 COSTS ASSESSMENT ...........................................................................................................................32 FAIR AND REASONABLE .....................................................................................................................32 IMPORTANT MATTERS ........................................................................................................................32 PERSONAL INJURY COSTS ...................................................................................................................32 MAINTENANCE, CHAMPERTY, AND BARRATRY ................................................................................33 CONDITIONAL COSTS AGREEMENTS ...................................................................................................33 PERSONAL COSTS ORDERS .................................................................................................................33 OVERCHARGING .................................................................................................................................34

Legal Services Commissioner v Keddie (2012) NSWADT 106 ......................................................34 SOLICITOR’S LIEN ..............................................................................................................................34 COSTS AGREEMENTS ..........................................................................................................................35

WEEK 7 – PROSECUTORS AND DEFENCE LAWYERS ...........................................................36 DEFENCE LAWYERS ............................................................................................................................36 'THE GUILTY CLIENT' .........................................................................................................................36 PROSECUTING LAWYERS ....................................................................................................................37

Whitehorn v R (1983) 152 CLR 657, Deane J at 663: ...................................................................37 CALLING WITNESSES ..........................................................................................................................38

R v Apostilides (1984) 154 CLR 563 ..............................................................................................38 R v Kneebone (1999) 47 NSWLR 450 ............................................................................................38

WEEK 8 – LAWYER’S PROFESSIONAL REPUTATION WITH OTHERS.............................39 GENERAL DUTY TO THE PUBLIC ........................................................................................................39

NSW Bar Association v Sahade [2007] NSWCA 145 ....................................................................39 NEGOTIATIONS AND SETTLEMENTS ...................................................................................................39

Legal Services Commissioner v Mullins (2006) LPT 012 ..............................................................40 Legal Practitioners Complaints Committee v Fleming (2006) WASAT 353 .................................40

TAKING ADVANTAGE OF MISTAKES ...................................................................................................40 Chamberlain v Law Society of ACT (1993) 43 FCR 148 ...............................................................40 Fratelli's Fresh Pasta Pty Ltd (2011) NSWSC 576 ........................................................................41

TAKING ADVANTAGE OF INFORMATION PROVIDED BY THE OTHER SIDE ...........................................41 MISTAKEN COMMUNICATIONS ...........................................................................................................41 UNDERTAKINGS .................................................................................................................................42 USE OF THE MEDIA ............................................................................................................................42 ADVERTISING .....................................................................................................................................43 SOCIAL MEDIA ...................................................................................................................................43

WEEK 9 – CONFLICTS OF INTEREST .........................................................................................44 FIDUCIARY DUTIES .............................................................................................................................44 CONFIDENTIALITY ..............................................................................................................................44 ASSOCIATES .......................................................................................................................................45 BREACH OF FIDUCIARY OBLIGATIONS ...............................................................................................45

Hilton v Barker Booth and Eastwood HL 3 Feb 2006 ...................................................................45 Eiszele v Hurburgh [2011] TASSC 65 ...........................................................................................45

BREACH OF CONFIDENCE WHEN THE RETAINER HAS FINISHED .........................................................46 Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112 ...........................................46 Prince Jefri v KPMG (A Firm) HL 16 Dec 1998: ..........................................................................46 Mallesons Stephen Jacques v KPMG Peat Marwick (1990) 4 WAR 357 ......................................46

CONFLICTS BETWEEN CURRENT CLIENTS ..........................................................................................47 CONFLICT CONCERNING A SOLICITOR'S OWN INTERESTS ..................................................................47 FORMER CLIENTS ...............................................................................................................................47 INFORMATION BARRIERS....................................................................................................................47

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd (2007) NSWC 350 ...................48 Prince Jefri Bolkiah v KPMG (1999) 2 AC 222 ............................................................................48

WEEK 10 – DISCIPLINE AND EXPULSION.................................................................................49 Clyne v New South Wales Bar Association (1960) 104 CLR 186 ..................................................49 Kennedy v Council of Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 .........49

MISCONDUCT DEFINED ......................................................................................................................49 MISLEADING A COURT OR TRIBUNAL .................................................................................................50

Brett v Solicitors Regulation Authority [2015] PNLR 2 ................................................................50 MISLEADING ANOTHER LAWYER OR THIRD PARTY............................................................................50

AG v Bax [1999] 2 Qd R 9 .............................................................................................................51 DISRESPECT TO THE COURT OR ITS AUTHORITY ................................................................................51

Ellis v Law Society [2008] EWHC 561 ..........................................................................................51 Council of the NSW Bar Association v Slowgrove [2009] NSWADT 150 .....................................51 Attorney-General for State of Queensland v Colin Lovitt QC [2003] QSC 279 ...........................51

TRUST ACCOUNTING IRREGULARITIES ...............................................................................................51 Law Society of NSW v Hansen [2004] NSWADT 183....................................................................51

LAWYER-CLIENT CONFLICT OF INTERESTS ........................................................................................52 Law Society of NSW v Harvey [1976] 2 NSWLR 154 ....................................................................52

CLIENT-CLIENT CONFLICT OF INTEREST ............................................................................................52 Zaicos v Law Institute of Victoria, unreported SC (Vic) 19 July 1995 ..........................................52

BREACH OF CLIENT CONFIDENTIALITY ..............................................................................................52 Legal Practitioners Complaints Committee v Trowell (2009) 62 SR (WA) 1 ................................52 Legal Services Commissioner v Scott [2009] LPT 7 .....................................................................52

OVERCHARGING .................................................................................................................................53 D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 ........................53

DELAY OR NEGLECT ..........................................................................................................................53 MISCONDUCT OUTSIDE PRACTICE - CRIMINAL CONVICTIONS ............................................................53

Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 ....................................53

Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 ..........................................54 Victorian Bar In v Himmelhoch [1999] VSC 222 ..........................................................................54 NSW Bar Association v Bryson [2003] NSWADT 19 ....................................................................54 Canterbury-Westlands Standards Committee v Taffs [2013] NZLCDT 13 ...................................54 Waikato Bay of Plenty Lawyers’ Standards Committee No 1 v Pou [2014] NZLCDT 86 ............54 Prothonotary of Supreme Court of NSW v Montenegro [2015] NSWCA 409 ...............................54

MISCONDUCT OUTSIDE PRACTICE – DISHONESTY ..............................................................................55 Council of the Law Society of NSW v Green (No 2) [2009] NSWADT 297 ...................................55 Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 ...............................55 Council of the NSW Bar Association v Einfeld (2009) 258 ALR 768 ............................................55 NSW Bar Association v Hamman (1999) 217 ALR 553 .................................................................55 NSW Bar Association v Somosi (2001) 48 ATR 562 ......................................................................55 Hilton v Legal Profession Admission Board [2017] NSWCA 232 .................................................55

PROCEDURAL MATTERS .....................................................................................................................55

Week 1 – Morality and the Law

Ethics • The term ethics has many varied meanings. Lawyers have to define for themselves what they

mean by ethics

• May be defined as a system of conduct that sometimes is the same of the law, and supports its

aims by giving publicity to rules of conduct, while at other times it goes beyond the law and

sometimes conflicts with the law

• Often people conflate ethics with morality – often rules and principles of legal ethics do not

consider in any detail the moral aspects of legal practice

• At times, there are clear differences of opinion between what the community thinks is

appropriate conduct by a lawyer and what a lawyer is required to comply with

• John McKenzie (‘A Manual of Ethics’) considers ethics the science of conduct – considers the

actions of human being with references to their rightness or wrongness, their tendency to do

good or evil

• Hon Gerard Brennan argues that ethics cannot be reduced to mere rules – not so much learnt

but lived

• Code of ethics can give an answer to moral and ethical dilemmas, although it is not always so

clear – there may not be rules that covers every possible dilemma or decision

Why study ethics

• Ethics is a Priestly 11 course that is required to be studied by all law students in Australia

• Lawyers who do not abide by their professional conduct obligations can be the subject of

professional misconduct or other civil proceedings

• The reputation of a lawyer is paramount in ensuring their success

• The community has varying views as to the importance and the role of lawyers in society and

it is critical for the due administration of justice and for legal business that lawyers who are

entrusted with such work do so with the utmost integrity and competence

• The codes of ethics, rules and principles, are mirrored in other areas of working life such as

business, corporate life and the public service

Analysing moral problems

• Some commentators put ethics in between law and morality, while others see ethics as tying

into a sense of honesty and integrity

• Some commentators use moral philosophy as a way in which they might look at legal ethics

e.g. utilitarianism

• Utilitarianism (consequentialism): basically, that the morally right action is the one which

produces the greatest amount of happiness or pleasure and the least amount of pain or

unhappiness

• Deontology (non-consequentialist/rights based theories): basically, rule based ethics. It means

that a person judges the rightness of an action by reference to the extent to which the action

adheres to the rules

Practice of law as a profession • Lawyers are considered to be members of a group of occupations known as professions – we

frequently associate professional groups with notions of expertise, status and power

• Varying ways in which legal ethics can be described – we adopt the terms professional

responsibility and professional conduct rather than ethics

• Professionalism ties in with responsibility and duties – we’re not focusing on various theories

of ethics, rather, the idea of honesty and integrity

• The legal monopoly is set out in s 10 of the Legal Profession Uniform Law (LPUL),

providing a prohibition on persons and entities not duly qualified from carrying out legal work

for reward – exclusivity of practicing lawyer entails professional obligations of the highest

order

• Section 6 of LPUL defines Australian Legal Practitioner as a lawyer with a current practicing

certificate

• Contravention of the uniform rules can amount to professional misconduct or unsatisfactory

professional conduct: s 298 LPUL

Features of the profession:

• A feature of the legal profession is its commitment to serving the public, see Re John Cameron

Foster (1950) SR (NSW) 149 at 151, Street CJ:

o Trade or business has a primary object of the pursuit of pecuniary gain. Honesty and

honourable dealing are expected from every person, whether they are engaged in

professional practice or many other gainful occupations

o In a profession, however, pecuniary success is not the only goal – service is the ideal

and the gaining of remuneration must always be subservient to this main purpose

• Lawyers are generally self-regulated by the Law Society and the Bar Association of NSW

• There has been criticism of such self-regulation, which has led to the NSW Office of the Legal

Services Commissioner (OLSC) which is a complaint handling body in relation to the conduct of professional lawyers

• The profession is constantly changing and the laws are constantly being amended and added –

the rise of the executive and the role to check and balance to review decisions by government

is a fundamental goal of lawyers and the legal profession

Lawyers owe a duty to • Their Client – confidentiality, competence and care, honesty, capacity, avoid conflicts of

interest

• The Court and the administration of justice – duty of candour, efficient and expeditious,

prosecutors and defence lawyers

o s 25 LPUL - paramount duty to the court; r 3 SR –prevails to the extent of

inconsistency with any other duty

• The legal profession – undertakings, courtesy, fellow practitioners must be able to depend on

the word of their colleagues

Statement of Ethics – Law Society of NSW- May 2009

We acknowledge the role of our profession in serving our community in the administration of

justice. We recognise that the law should protect the rights and freedoms of members of society.

We understand that we are responsible to our community to observe high standards of conduct and

behaviour when we perform our duties to the courts, our clients and our fellow practitioners.

Our conduct and behaviour should reflect the character we aspire to have as a profession.

This means that as individuals engaged in the profession and as a professional:

• We act competently and diligently in the service of our clients

• We advance our clients’ interests above our own

• We act confidentially and in the protection of all client information

• We act together for the mutual benefit of our profession

• We avoid any conflict of interest and duties

• We observe strictly our duties to the court of which we are officers to ensure the proper and

efficient administration of justice

• We seek to maintain the highest standards of integrity, honesty, and fairness in all our

dealings

• Relations with third parties – the public, media, advertising.

Regulatory framework • Contract

• Tort

• Agency

• Fiduciary

• Consumer protection

• Acts and Regulations

o Legal Profession Uniform Law (LPUL) NSW (1 July 2015)

o Legal Profession Uniform Law Application Act (LPULA) NSW 2014

o Legal Profession Uniform Admission Rules 2015

o Legal Profession Uniform General Rules 2015

• Professional Conduct Rules

o Legal Profession Uniform Conduct (Barristers) Rules 2015

o Legal Profession Uniform Continuing Professional Development (Barristers) Rules

2015

o Legal Profession Uniform Law Application Regulation 2015

o Legal Profession Uniform Australian Solicitors’ Conduct Rules 2015 (SR)

o Legal Profession Uniform Legal Practice (Solicitors) Rules 2015

o Breach of these rules can amount to professional misconduct or unsatisfactory

professional conduct under s 298 LPUL

• Rulings from professional bodies: Law Society and NSW Bar Association

General Important Provisions

SR r 3 – Paramount duty to the court and the administration of justice • 3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to

the extent of inconsistency with any other duty.

SR r 4 – A solicitor must • 4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client

• 4.1.2 be honest and courteous in all dealings in the course of legal practice

• 4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible

• 4.1.4 avoid any compromise to their integrity and professional independence; an

• 4.1.5 comply with these Rules and the law

Honest and Courteous: 4.1.2:

Garrard (t/a Arthur Andersen and CO) v EmailFurniture Pty Ltd (1993) 32 NSWLR:

Facts: Lawyers sought an advantage when the opposite lawyer failed to reply within the

required 21 days. The lawyers were awarded a judgment because of this technical failure on

the part of their opponents.

On appeal the judgment was reversed:

Kirby J: ‘Discourtesy is not limited to the tone of correspondence or the vigour of its language.

Those members of the legal profession who seek to win a momentary advantage for their client

without observing the usual and proper courtesies invite correction by the court and

disapprobation of their colleagues’

‘…they run the risk of destroying the confidence and mutual respect which generally

distinguishes dealings between members of the legal proession from other dealings in the

community.

SR r 5 – A solicitor must not • A solicitor must not engage in conduct, in the course of practice or otherwise, which

demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely

to a material degree to:

o 5.1.1 be prejudicial to, or diminish the public confidence in, the administration of

justice; or

o 5.1.2 bring the profession into disrepute

NSW Bar Association v Cummins (2001) 52 NSWLR 279

Facts:

• Mr Cummins was a Barrister and for 38 years had failed to file his income tax returns for

professional practice or personal income

• The Legal Services Commissioner sought to have his name removed from the Roll of Legal

Services as a person unfit for practice

Reasoning:

• The Barristers actions brought the entire legal profession into disrepute – the court was highly

critical of this conduct and said there are interrelated interests involved for lawyers and the

legal profession as a whole

• Conduct outside actual legal practice may amount to professional misconduct if it is

sufficiently closely connected with actual practice, or if the conduct demonstrates qualities

which are incompatible with, or essential to conduct of legal practitioners

• Honesty and integrity are essential to the legal profession – his actions were “an inexcusable

pattern of illegal conduct in complete defiance of civic responsibilities”

• Relevant considerations:

o Cummins did not admit his wrongdoing

o He completely disregarded his civic obligations

o His actions were such as to bring the profession into disrepute

Decision:

• Cummins is not a fit and proper person to remain on the Roll and should be struck of therein

Barristers Rules • Consist of categories of advocacy rules including cab-rank principle, duty to the client, court

and opponent, independence, efficient administration of justice, responsible use of court

process and privilege, integrity of evidence, media comment, prosecuting and defence work,

briefs and briefs which must be refused or returned, confidentiality and conflicts

Ask yourself

• To whom do I owe my duty?

• What happens when duties collide?

• Do I act on instructions or in the best interests of the client?

• What happens if my client lacks capacity?

• What happens if I am ignorant of the law?

Issues that arise

• Conflict between lawyer’s own interests and those of the client

• Conflict between lawyer’s own values and the client’s values

• Conflict between acting for a current client against a former client

• Whether to accept instructions from a new client whose interests might affect a former client

• Acting for both parties

• Conflict or dilemma between a lawyer’s duty to their client and their duty to the court

Week 2 – Admission to Legal Practice

Legislative Monopoly • s 10 LPUL - prohibition on engaging in legal practice if not a legal practitioner

• Legal services include engaging in legal practice, advising, acting and assisting individuals,

corporations, and organisations in litigation and legal proceedings generally o May involve non-litigious transactions such as drafting contracts

• Purporting to be a legal practitioner when the person is not duly qualified can lead to prosecution o Number of cases where purported lawyer has been prosecuted for providing legal services o One that was reported in the Newcastle herald in 2009 involved an individual who claimed

to be a lawyer assisting a client who was in the holding cells in the court - with the person

pretending to be working for legal aid o Caution needs to be taken in the social media context, where the person is giving legal

advice on social media

Eligibility for admission • 18 years and over

• Law degree

• Practical Legal Training (PLT) course

• Must be a fit and proper person: r 10 Legal Profession Uniform Admission Rules 2015 (LPUAR)

• Pay filing fee $900

• Regulatory authority in NSW: Legal Profession Admission Board (LPAB)

Suitability matters • The admission rules set out the criteria to assess the suitability of a person as to whether they are

fit and proper to practice law - referred to in the application form for admission to be completed

by the applicant

• Whether of good fame and character

• Whether bankrupt or has been insolvent

• Whether convicted of a criminal offence - relevant considerations include nature of offence, how

long ago the offence was committed and applicant's age when offence committed

• 'Spent convictions' (usually older than 10 years) required to be disclosed: r 10(h) LPUAR, s 12

Criminal Records Act 1991 (NSW)

• Whether previously been admitted either in NSW or elsewhere

• Been the subject of disciplinary action in any profession/occupation

• Whether unable to satisfactory carry out the inherent requirements of legal practice

Form for admission • Form 10 - sets out the suitability factors by way of questions together with required

documentation

• Form 3A (disclosure made) or Form 3B (no disclosure made) - 2 character references required

- must have known applicant for at least 2 years and not be related to applicant by blood or

marriage or domestic partner; referee fives an opinion as to the applicant's character, reputation

and suitability for admission as a lawyer including a reference to the applicant's honesty and

integrity

• LPAB makes declaration as to whether person is fit and proper to be admitted and issues a

compliance certificate (s 19 LPUL). A person may apply to the LPAB for an early declaration

that matters disclosed by the person will not, without more, adversely affect an assessment by

the Board as to whether the person is a fit and proper person to be admitted (s 21 LPUL). Applicant or admission can appeal to Supreme Court if refused admission (s 26 LPUL) o Might be made in circumstances if there is a serious doubt about suitability for admission

Fit and proper test • In order to assess the suitability of an applicant for admission, close scrutiny is made of the

person's good fame and character o Fame refers to the individual's good reputation and standing o Character refers to the personal qualities, traits and attributes of the individual

• Lawyers are entrusted with highly confidential matters and handle large amounts of money, it is

therefore imperative that lawyers act with the highest degree of honesty and integrity

• At times, good fame and character can vary according to social norms and the values adopted

by society. It is conceded that assessing the person's good fame and character is an imprecise

science

• Section 17(1)(C) and (2)(b) LPUPL.

• See Regulation 10 of the Legal Profession Uniform Admission Rules 2015 for a rundown of

matters that the admission board must have regard to. Other notes page 6.

Frugniet v Board of Examiners (2002) VSC 140 • Pagone J in Frugniet stated that “it is not for the applicant to usurp the role of the decision

maker… by deciding that the charges or the facts which gave rise to them will not assist in

deciding that person's fitness to practice”

• Commitment to honesty, open candour and frankness irrespective of self-interest of

embarrassment

• The regulatory authorities look very dimly on an applicant that has failed to disclose the matter

that should have been disclosed - The failure to disclose indicates a lack of honesty and integrity

• It is better for the applicant to disclose ancient peccadillos as if such matters are not disclosed can

lead to a finding that is not fit and proper and is to be struck off the role of lawyers

• Excessive and exacting disclosure; err on the side of disclosure

Victorian Lawyers RPA Ltd v X (2001) VSC 429 • Disclosure of past sins - candour is critical

• Court refused her application as she was not a fit and proper person: "One who is not capable of

dealing appropriately with awkward facts of this kind in one's own life cannot be entrusted to

advise clients who are similarly placed" o Dissociative events took place after incidents of sexual abuse, triggering memories of child

sexual abuse which the defendant had not spoken about nor dealt with o Charges were laid against her as a result, and the defendant failed to accurately describe

the charges to which she pleaded guilty o As a result, the defendant was deemed not a fit and proper person to be admitted as a

solicitor

Skerritt v The Legal Practice Board of Western Australia (2004) WASCA 28 • “Practitioners owe a duty of candour to the courts and to others, notwithstanding that at times it

may be personally embarrassing or inconvenient to perform that duty”

• A failure to disclose that which is plainly understood to be relevant would reveal an attitude

giving rise to concern about the applicant's fitness to practice. The duty to disclose arises in

relation to material which may potentially be relevant to fitness to practice- mental health issues

may be capable of having a bearing upon an applicant's fitness to practice

Criminal disclosures • In relation to an applicant's prior criminal record, the applicant needs to provide full and

detailed circumstances surrounding the criminal act: o Such as driving offences inc. driving infringements o If you have a bad driving record, get your driving history from RMS

• Need to disclose date of offence, charge, date heard in court, outcome, sentence, whether have

served sentence or paid fine and court costs, explanation of circumstances, steps taken to

address underlying behaviour and re-establish good fame and character in community

• Submit Australian National Police Check

• Expression of contrition and ways in which the applicant has address their behaviour and how

they have re-established their good fame and character are crucial in an application to practice

Re Davis (1947) 75 CLR 409

Facts:

• Davis had been convicted in 1934 on a charge of breaking and entering and stealing, and failed

to disclose on application for admission in 1946

• After being admitted, omission was discovered

• Disbarred by SC for failure to disclose that he had pleaded guilty to the charges

Reasoning:

• Dixon J: "Conviction of a crime of dishonesty of so grave a kind as housebreaking and stealing

is incompatible with admission to the bar of the reputation and the more enduring moral

qualities denoted by the expression 'good fame and character'"

• Lathan J: "A man may be guilty of grave wrongdoing and subsequently become a man of good

character. If he'd disclosed his part this would have helped to prove he has become of good

character"

Held:

• HCA dismissed the appeal and upheld the decision that Davis was to be disbarred

• Failure to disclose may be a bar to admission: complete disclosure of past crimes does not

guarantee admission, but a lack of candour with the court would be a bar to admission

Ex parte Lenehan (1948) 77 CLR 403

Facts:

• Lenehan has committed a number of dishonest acts 20 years before (1928), relating to money at

a previous corporation - misappropriating money in a law firm over a period of 3 years

• He had attempted to be admitted in 1939, however it was not until 1948 that he was successful

Reasoning:

• "The false steps of youth and early manhood are not always final proof of defective character

and unfitness"

• Although the appellant was surrounded in his initial practice as a law clerk by evil examples,

his later employment was respectable: employed by legal firm and bank and served in the war

• Both employers testified to appellant's character and conduct - evidence from the army and

bank that the appellant was responsible for large sums of money

Held:

• Held that the appellant had an adult life that exemplified good character - a lengthy, satisfactory

career outweighed his dodgy beginning

• In 1948 the HCA admitted Lenehan to practice. The difference between Davis was that

Lenehan had fully disclosed his past misdeeds while Davis lacked candour

Good Fame and Character

Re B (1981) 2 NSWLR 372

Facts:

• Wendy Bacon was a journalist and political activist who held strong views in relation to various

political and social issues in the 1970s

• Between 1970 when she was aged 24 years and 1981 when she was aged 31 years, she was a

participant in various street protests, including opposition to the export of uranium and serious

concerns regarding the treatment of prisoners

• She was arrested multiple times and had been convicted of 10 occasions

• Openly admitted her actions in her applications to practice as a barrister - no dishonesty or

violent offences

Reasoning:

• "Some matters in the past may be so incompatible with being a barrister…that the court will not

be persuaded that the applicant is a person fit and proper for admission... Character does not

change readily…"

• Consideration as to whether she had provided a 'sham bail' for an individual who was facing

criminal charges (r 17.4 SR) - 'sham bail': A lawyer must not be the surety for their client's bail)

• Court had concerns whether the money she had lodged were from her own sources - that the

bail for man in jail was using his own money

Held:

• That B was not a fit and proper person as her conduct fell short of the standard expected of a

barrister

Academic Misconduct • Application for admission requires the applicant to disclose whether they have been the subject

of any disciplinary action, howsoever expressed, in any tertiary education institution in

Australia or in a foreign country o Incidents of academic misconduct – minor or major but does this distinction matter to the

admitting authority? o Warning or reprimand, reduction in marks or zero marks, other penalty o Includes general misconduct at a tertiary institution such as offensive behaviour, sexual

harassment and racial vilification o Need to supply certificate from tertiary institution if have been found to have engaged in

academic misconduct, LPAB conducts random audits

Law Society of Tasmania v Richardson (2003) TASSC 9 • Supreme Court of Tasmania was asked to determine whether Scott Richardson, and his parents

(who as solicitors had moved his admission) should be struck off the Court’s roll of legal

practitioners

• The issue was that Richardson had not disclosed a finding of academic misconduct made

against him – Scott was asked by a fellow student for help with his assignment, and Scott gave

him his draft, but did not give him permission to copy from them

• Court found that Scott made an error of judgment, a mistake based largely on the advice of

two experience practitioners who were also his parents – no justification for removing his name

from the roll. His fitness to practice, his honesty, character and trustworthiness have not been

adversely affected by his failure to make the relevant disclosure

Re Legal Profession Act 2004; re OG a lawyer (2007) VSC 520 – HIGHER

STANDARD SET COMPARED TO RICHARDSON

• The full Supreme Court revoked the admission of OG for lack of candour. OG and a fellow

student, GL, were found by their university lecturer to have colluded on an assignment, when

the instructions were to do the assignment on their own. When doing their PLT, one of the

lecturers emphasised the need to have complete candour regarding their past misdeeds and

specifically referred to plagiarism o OG gave false reasons for receiving the 0 mark – he advised he thought it was a

group assignment but mistakenly wrote it up individually o The Secretary of the board, on reading OG's allegations, judged the disclosure to be

minor and the board granted OG admission o It was revealed in hearings that GL was required to attend that OG was the other student

who he colluded with. The board then sought revocation of OG's admission

Pothunters of the Supreme Court of NSW v Hendrick Jan van Es (2014)

NSWCA 169:

• Mr van Es decided to breach examination rules when sitting his Ethics exam - found to have

obtained improper advantage by deceitfully taking to his desk exam materials which he was

not permitted to use

• Refusing to allow the exam supervisor to examine the materials he was using and after leaving

the exam room, attempting to regain entry after hiding the exam materials under his clothes

o Deliberate attempt to cheat

o Deliberate attempt to deceive

o Lack of candour

• Held to not be a fit and proper person

Health disclosure

• The application for admission requires an applicant to disclose any circumstance or matter that

might affect their ability to carry out the requirements as a legal practitioner, including health

disclosures: o Previous question: "I do not suffer from any infirmity, injury, mental or physical

illness, impairment or disability which makes me unable to carry out the inherent

requirements of practice as an Australian legal practitioner" o Current question: "Are you aware of any circumstance or matter that may affect your

ability to satisfactorily carry out the inherent requirements of practice as an Australian

legal practitioner?'

• Requires the applicant to advise the LPAB any matter which may reflect negatively on honesty,

respect for the law or ability to meet professional standards, any matter which the LPAB might

regard as not being favourable when considering whether or not is a fit and proper person o Excessive and exacting disclosure o Attempt to mislead or not fully disclose to the admitting authority will be looked at

very unfavourably and can lead to striking off o Dishonesty offences viewed seriously o Mitigation - age, seriousness, full disclosure, 'crime free' period

Barrier to admission • Handful of cases where applicants to admission have been refused admission to legal practice

• Most decided cases and case law comes from when lawyers have been admitted and have

been subject to disciplinary proceedings

• Does the incident have a connection to the practice of law? Is the offence so remote to the

practice of law?

After admission • Admission ceremony

• Signing the roll

• Deferring admission

• Practising certificate - NSW Law Society for solicitors, NSW Bar Association for barristers

• Supervised legal practice

• Professional indemnity insurance

• Practising in a Federal jurisdiction - need to enrol on the High Court

• External Intervention by Law Society

• Fidelity Fund

• Continuing professional development

Ongoing requirement of disclosure • Once admitted in to practice, there is an ongoing duty of disclosure. Lawyers are required to

disclose show cause events

• s 86 LPUL – automatic show cause event: charged with a serious indictable offence or tax

offence, bankruptcy or being served with a creditors petition - must advise Law Society of

NSW and provide full explanation as to being a fit and proper person to practice. Practising

certificate can be suspended or cancelled