Week 2: Lawyers in Australia and Admission to Practice Flashcards
(23 cards)
Understand the dual requirements of eligibility and suitability for admission
→ There are high standards for admission to the legal profession in order to:
1. Protect the public
2. Maintain the integrity of the profession
→ Justine Pagone noted in Frugtniet v Board of Examiners, “a commitment to honesty and, when required, to open candour and frankness, irrespective or self-interest or embarrassment”
→ Journey to admission: Law Degree -> PLT -> Application to the LPAB –> Admission to Supreme Court –> Solicitor (apply to LS) –> Barrister (apply to Bar)
Admission as a lawyer is ultimately a function of the supreme courts’ inherent jurisdiction
Identify the key legislative provisions governing admission to practice
→ The Legal Profession Admission Board (LPAB) is a self-funding statutory body under the Legal Profession Uniform Law Application Act 2014.
→ Despite state to state jurisdiction, the Supreme Court remains the ultimate body which admits solicitors
→ Academic competency determined by completion of Priestley 11
→ LPAB is responsible for:
○ Determining the eligibility and suitability of people seeking to be admitted as a lawyer in NSW
○ Accrediting academic law courses and PLT training courses in NSW
○ Maintaining the Roll of Lawyers
○ Issuing compliance certificates
○ Part 2.2 of the Legal Profession Uniform Law 2014 (NSW) provides for admission to the Australian Legal Profession (ss 15-25)
○ The Legal Profession Uniform Admission Rules 2015 (NSW) provide the procedural requirements for admission and specify the academic qualifications and PLT prerequisites
○ The NSW Admission Board Rules 2015 provide for the operation of the LPAB
Sections 17 and 19 of the Uniform Law require that before seeking admission, applicants must obtain a compliance certificate from the LPAB
Section 17 LPUL
Rule 5 & 6 Legal Profession Admission Rules 2015
Legal Profession Uniform Admission Rules 2015 (NSW) Schedule 1
Legal Profession Uniform Admission Rules 2015 (NSW) Schedule 2
Prothonotary of the Supreme Court of NSW v P
→ In Prothonotary of the Supreme Court of NSW v P, the NSW Court of Appeal noted that “good fame and character” comprises of two distinct aspects: “ Fames refers to a person’s reputation in the relevant community, character refers to the person’s actual nature”
Rule 17, 18, 19, 23, Legal Profession Admission Rules 2015
Recognise the types of conduct that may affect future admission
According to Rule 10 and 17 of the Uniform Admission Rules, the type of conduct which may affect future admission include:
1. Academic misconduct, such as plagiarism or cheating
2. Criminal history, including any charges regardless of outcome
3. Disciplinary proceedings in employment or education
4. Inappropriate conduct reflecting negatively on character
5. Mental health issues affecting the capacity to practice
6. Financial issues such as bankruptcy or tax offences
Appreciate the critical importance of full and frank disclosure
The consequences of failing to disclose relevant matters can be severe:
→ The LPAB may refuse to issue a compliance certificate
→ If already admitted, your name may be removed from the roll
→ Your reputation within the profession may be damaged
→ You may face significant costs and delays in your career progression
“Excessive disclosure” reflects Candor at the time of admission
Re Del Castillo (1998) 136 ACTR1
“Applicants need not fear that the court will seek to substitute a demand for perfection for the requirement that fitness to practice be demonstrated by showing good fame and character”
Re Legal Profession Act 2004 and OG [2007] VSC 197
the applicant was admitted to practice after receiving a 0 mark but failed to disclose that this was due to collusion, thus removed from the roll of lawyers, “deliberate or reckless misrepresentation around the circumstances of the 0 mark”
JY [2016] QCA 324
the applicant failed to disclose all criminal offences, and only some, thus refused admission “could not properly be found at this time a fit and proper person for admission”
Joy Onyelendo [2015] NTSC 60
the applicant had two incidents of plagiarism; disclosed these, but was not entirely forthcoming about the circumstances of these incidents. The court viewed this are more than just technical compliance but a fundamental stain on character, “correct referencing is essential to the abiility of courts and academic institutions to test arguments and verify sources … students must familiarise themselves with, and utilise, appropriate referencing to demonstrate their qualifications and understanding of topics” –> draws back to both the eligibility and suitability of applicants
Micah Kickett [2018] NTSC 26
the applicant had failed to disclose plagiarism issues because he believed formal findings hadn’t been made against him. The court stated, “the fact the applicant should have disclosed the plagiarism irrespective of whether there was any formal finding or not”
Re Liveri [2006] QCA 152
did not realise the seriousness of academic misconduct - court viewed non-disclosure as a lack of insight into the way academic misconduct negates fitness and character
Legal Practitioners Act 1970 and in the matter of an application by Hinds [2003] ASTSC 11
involved an applicant with a criminal history who was ultimately admitted. The Court Stated, “the commission of a criminal offence or offences does not automatically result in a person’s permanent disqualification from admission as a legal practitioner. However, any applicant for admission bears the onus of establishing he or she is presently of good reputation and character”
Re B [1981] 2 NSWLR 372
involved Wendy Bacon, an activist who was refused admission partly due to her political activities and criticisms of institutions including the courts –> the problem was not character, but rather “fame”
XY v The Board of Examiners [2005] VSC 250
history of mental health issues and a number of alcohol abuse issues –> fit for admission subject to an undertaking to continue with Alcoholics Anonymous
Legal Practice Board v Ridah [2004] WASC 263
practised without a practising certificate - An offence under section 10 and 11 of LPUL to impersonate a legal practitioner, can result in up to 2 years in jail
Council of the NSW Bar Association v Chen [2024] NSWSC 349
failed to renew practicing certificate - disbarred
Frugtniet v Board of Examiners
→ Case Overview: Appeal under Section 342 of the Legal Practice Act 1996, challenging a decision by the Board of Examiners that the applicant is not a fit and proper person for legal practice.
→ Disclosure Requirement: The applicant failed to disclose several significant matters, including:
* Perjury charges.
* UK convictions from 1978.
* Theft-related charges from his time at ANZ Bank.
→ Applicant’s Explanation: The applicant argued he misunderstood the disclosure requirements, believing he only needed to disclose pending charges and not those that had been acquitted or were considered “spent.”
→ Court’s Ruling: The court found the applicant’s explanation insufficient, emphasizing the requirement for full disclosure of all relevant matters (including charges, acquittals, and convictions).
→ Impact on Fitness: The court concluded the applicant had not demonstrated he was a fit and proper person for admission, due to the failure to disclose key information.
→ Possibility of Future Application: The court did not rule out the possibility of the applicant applying again in the future with additional or clearer evidence.
→ Costs Decision: No costs were awarded to the Board of Examiners due to the applicant’s financial hardship and personal circumstances.
Key Principles from Cases:
→ The character requirements are about protecting the public and maintaining the integrity of the profession
→ Full and frank disclosure is essential and often more important than the underlying conduct
→ Current character matters more than past mistakes
→ Rehabilitation, insight, and growth are recognised and valued
The courts take a nuanced, individual approach to each application
