The Victorian Bar Continuing Professional Development Fit and Proper person & duty of disclosure under the Legal Profession Act 2004 Professional Standards Education Committee Cameron Macaulay SC Outline for seminar 1) Reasons for standard a) Ziems v Prothonotary Supreme Court NSW (1957) 97 CLR 279 per Kitto J at 297-8 It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellowmembers of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar. b) Incorporated Law Institute of NSW v Meagher (1909) 9 CLR 655 per Isaacs J at 681 The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be
deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the Court?a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future. 2) When it breaks down consequence a) Court b) Practitioners c) Clients d) Community 3) Bar s self-interest a) Potential colleagues/opponents b) Corporate professional reputation c) Guardians for the Court 4) Stakeholders in standard a) judicial stake b) community stake c) professions' stake 5) Statutory regime reflecting interests a) admission judicial, academic and community b) practicing certificate community & profession c) complaints & discipline - community & profession d) Bar Roll profession 6) Statutory provisions & machinery
a) admission: part 2.3; i) eligibility vs suitability; ii) by Sup Ct 2.3.6; iii) recommended Bd of Exam 2.3.10; iv) suitability matters 2.3.3, 1.2.6; v) board of exam 6.5.9 b) practising certificate: grant and renewal part 2.4; i) Garde-Wilson v Legal Services Board [2007] VSC 225 per Bell J [18], [34] [18]. The Board cannot grant a certificate to a person unless it is satisfied he or she is a fit and proper person to hold it. So, to grant a certificate to an eligible applicant, the Board has to be positively satisfied he or she is such a person. The Board cannot renew a certificate to a person if it is satisfied he or she is not a fit and proper person to hold it. So, to refuse to renew the certificate of an eligible applicant, the Board has to be positively satisfied he or she is not such a person. [34]... The fit and proper person requirement is central to the operation of that scheme. When you come for the grant or renewal of a certificate, you meet the requirement at the front gate. Before you can get a certificate, the Board has to be satisfied of a positive that you are a fit and proper person. The Board can refuse to renew your certificate if it is satisfied of a negative that you are not a fit and proper person. [footnotes omitted] ii) by Legal Services Board 2.4.3; iii) criteria - eligible & fit and proper 2.4.7; iv) suitability matters 2.4.4, 1.2.6; v) LSB delegation to professional associations 6.2.19 - bar council - counsel committee (see Constitution) vi) Avoidance of double jeopardy 2.4.4(3)..course of conduct? c) show cause event: i) at time of application 2.4.26; ii) while a holder 2.4.27; iii) meaning of...1.2.1 insolvency & serious offences;
iv) LSB but also delegated to professional associations d) General power to amend, suspend, cancel: 2.4.20(a) e) Complaints and disciplinary regime: i) Professional misconduct 4.4.3(1) ii) Legal Services Commissioner investigation and application to Tribunal 4.4.13(2) iii) Tribunal s powers include 4.4.17, 4.4.18 7) Meaning of fit and proper a) Common law (admissions, practising certificates, disciplinary) b) Statute suitability matters 1.2.6 c) LSB policy statement 8) Common law principles a) General meaning Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Toohey J and Gaudron J at 380 The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. b) In the legal context: i) Ziems v Prothonotary Supreme Court NSW (1957) 97 CLR 279 per Kitto J at 297-8 Yet it cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with men and not with paragons that he is required to
pursue them. It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task. ii) NSW Bar Association v Murphy (2002) 55 NSWLR 23 at 52 Fitness to hold a practising certificate is to be assessed having in mind the high standards required of legal practitioners in the practice of their profession. The standards are required because the relationship between legal practitioner and client, between legal practitioners, and between legal practitioner and court is one of trust in the performance of professional functions, and because there must be confidence in the public and in those engaged in the administration of justice that legal practitioners will properly perform those functions. iii) NSW Bar Association v Cummins (2001) 51 NSWLR 279 at 284 Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people. iv) Frugtniet v Board of Examiners [2005] VSC 332 Gillard J [27] [29]
All true professions are built on a solid foundation of honesty. The legal profession is no exception. Indeed, the demands of honesty and fair dealing are probably greater in the legal profession than any other profession. There must be honesty and fair dealing between lawyer and client, between lawyers when conducting litigation on behalf of a client, and dealings with any of the courts or tribunals in this State. There must be no hesitation on the part of any member of the legal profession when confronted with a situation which could involve dishonesty to immediately desist from any dishonest conduct. Indeed, the courts and tribunals in this State would not be able to function properly unless the presiding officer was able to rely upon the honesty and reputation of the persons appearing before them or who as solicitors are involved in conducting litigation. Pagone J [in Frugtniet v Board of Examiners [2002] VSC 140] summarised the obligation in a passage with which I respectfully and fully agree. His Honour said: The requirement for admission to practise law that the applicant be a fit and proper person, means that the applicant must have personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor. A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self-interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self-evident and essential. (Emphasis in the original.) c) Summary of principles: i) In considering conduct which is relevant to the question whether a person is a fit and proper person to hold a practising certificate, the test should be whether such conduct is incompatible with the personal qualities and standards required of legal practitioners in the conduct of legal practice. ii) Each case must be considered on its own facts.
iii) The question is present fitness: Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 per Young CJ (with whom Meagher and Tobias JJA agreed) at [17]. iv) Dishonesty indicates unfitness to practice: New South Wales Bar Association v Hamman [1999] NSWCA 404; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; New South Wales Bar Association v Murphy at [28] per Giles JA (with whom Spigelman CJ and Ipp JA agreed); New South Wales Bar Association v Alcorn [2007] NSWCA 288 at [68]. v) 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: Prothonotary of the Supreme Court of NSW v P per Young CJ (with whom Meagher and Tobias JJA agreed) at [17]. But, generally speaking, professional misconduct has a more direct bearing on the question of a person s fitness to practice than personal misconduct: Ziems at 290 per Fullager J. vi) Where an event said to be a mistake is in issue, all of the circumstances in which the mistake was made are relevant to determine how the mistake reflects on the overall character of the person involved or whether it is properly to be characterised as a mistake at all. In New South Wales Bar Association v Einfeld (2009) 259 ALR 278 at [17], the Court said: The commission of an untruth in relation to a mundane and everyday event such as dealing with a speeding offence is the subject of consideration. No one is perfect. People make mistakes, including ones that involve a degree of dishonesty. Sometimes, these mistakes can be made in circumstances where they can be viewed as stupid and, perhaps, uncharacteristic; such mistakes may not, when examined in all their circumstances, reflect profoundly on the overall character of the person involved. Conversely, when placed in context what occurred may be seen as not involving mistake, but as bearing a much more serious character.
9) Examples of factual circumstances/result: Case Facts Result New South Wales Bar Association v Hamman [1999] NSWCA 404 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 New South Wales Bar Association v Alcorn [2007] NSWCA 288 Prothonotary of Supreme Court of New South Wales v P [2003] NSWCA 320 Re OG (A lawyer) (2007) 18 VR 164 Frugtniet v Board of Examiners [2005] VSC 332 In re Davis [1947] 75 CLR 409 Five convictions for dishonest understatement of income in tax returns over three years. Failure to lodge tax returns over 38 years. Barrister in business and financial difficulties tries to trade out of them and does not address tax obligations over several years. Convictions and imprisonment for using false document and receiving corrupt commissions. Solicitor convicted of importing trafficable quantity of cocaine and served sentence of imprisonment. Collusion in University assignment and non disclosure by OG of University collusion inquiry at time of admission. Convictions of criminal offences of dishonesty, period of imprisonment, further charges of offences of dishonesty involving deception and fraud (1989-2000). Pre admission, person pleaded guilty to charges of breaking, entering and stealing, and then failed to disclose that fact to the Court or Board upon admission. Removed from the Bar Roll. Removed from the Bar Roll Practising Certificate retained. Not fit and proper, removed from Bar Roll of Lawyers. Upon undertakings to submit to regular urinalysis, considered fit and proper and not removed from the Roll. Admission revoked and struck off Court Roll. Admission rejected 2001, appeal rejected 2002, further admission application rejected in 2005 and appeal from that rejection dismissed. Not fit and proper and removed from the Roll.
10) Statutory consideration suitability matters s 1.2.6 1.2.6 Suitability matters (1) Each of the following is a suitability matter in relation to a natural person (a) whether the person is currently of good fame and character; (b) whether the person is or has been an insolvent under administration; (c) whether the person has been found guilty of an offence in Australia or a foreign country, and if so (i) the nature of the offence; and (ii) how long ago the offence was committed; and (iii) the person's age when the offence was committed; (d) whether the person engaged in legal practice in Australia (i) when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law; or (ii) if admitted, in contravention of a condition on which admission was granted; or (iii) if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended; (e) whether the person has engaged in legal practice in a foreign country (i) when not permitted by or under a law of that country to do so; or (ii) if permitted to do so, in contravention of a condition of the permission; (f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following (i) this Act or a previous law of this jurisdiction that corresponds to this Act; or (ii) a corresponding law or corresponding foreign law; (g) whether the person (i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or (ii) has been the subject of disciplinary action, however expressed, in another profession or occupation that involved a finding of guilt; (h) whether the person's name has been removed from (i) a local roll, and has not since been restored to or entered on a local roll; or (ii) an interstate roll, and has not since been restored to or entered on an interstate rll; or (iii) a foreign roll; (i) whether the person's right to engage in legal practice has been suspended or cancelled in (j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts; (k) whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person;
(l) whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice; (m) whether the person currently has a material mental impairment. (2) A matter is a suitability matter even if it happened before the commencement of this section, except if the provision in subsection (1) about the matter refers to the current situation in relation to the person. 11) LSB : Fit and Proper Person Policy Statement a) http://www.lsb.vic.gov.au/documents/lsb_fitandproperpersonpolicystatement.pdf Guidelines: The Board recognises that each decision must be based on the individual facts and circumstances of each case. However, in applying the policy, the Board may consider the guidelines set out below. These guidelines are intended to facilitate consistent decision-making but are not to be applied inflexibly. 14.1 General principles The Board will not usually consider that a person is a fit and proper to hold a practising certificate if the circumstances involve dishonesty involve prior history of similar offences or other relevant conduct indicate a material risk of harm to consumers of legal services unless there are mitigating circumstances. 14.2 Infringement offences The Board will usually disregard any offence that has been expiated by payment of an administrative penalty under the Infringements Act 2006 (eg. minor traffic, parking and public transport offences), unless it forms part of a pattern of conduct. 14.3 Traffic offences The Board will usually disregard a finding of guilt for the following traffic offences: speeding or careless driving driving in an unregistered or uninsured vehicle drink-driving or drug-driving unless: it is a second or subsequent offence
the circumstances of the offence indicate the possibility of mental impairment (including alcoholism or drug dependence). 14.4 Tax offences The Board will usually disregard a finding of guilt for a summary tax offence (as defined in section 1.2.1 of the Act), unless there are aggravating circumstances, including: dishonesty or deception repeated conduct. Note: the definition of a summary offence is set out in section 8ZA Taxation Administration Act 1953. 14.5 Administration of justice offences The Board will not usually consider that a person is fit and proper to hold a practising certificate if the person is found guilty of: contempt of court (whether civil or criminal) an offence or series of offences that indicates serious disregard for the law or the administration of justice an offence or series of offences that harms the integrity of the legal profession unless there are mitigating circumstances. 14.6 Serious offences The Board will not usually consider that a person is fit and proper to hold a practising certificate if the person is found guilty of a serious offence (as defined in section 1.2.1 of the Act) in any of the following categories: a serious offence involving dishonesty a serious offence involving violence a serious drug offence a serious sex offence unless there are mitigating circumstances. Note: the Victorian definition of an indictable offence is set out in section 112(1) Sentencing Act 1991 and the Commonwealth definition is set out in section 4G Crimes Act 1914.
14.7 Insolvency The Board will not usually refuse to grant or renew, cancel or suspend a practising certificate because a practitioner is insolvent under administration (as defined in section 1.2.1 of the Act) unless: the circumstances indicate a lack of honesty or integrity the circumstances involve tax evasion the insolvency relates to the practitioner s legal practice or a related incorporated legal practice. However, the Board may impose a condition on the insolvent practitioner s practising certificate providing that the practitioner cannot practise as a principal authorised to receive trust money during the relevant period. 14.8 Contravention of a disciplinary order The Board will usually send a warning notice to a person who has not complied with a disciplinary order of the tribunal or a court, requiring compliance within a reasonable period. If the person has not complied at the expiration of the period, the Board will not usually be satisfied that a person is fit and proper to hold a practising certificate, unless: the disciplinary order involves payment of money and the person enters into and continues to comply with a scheme of payments that is acceptable to the Board there are other relevant circumstances. 12) Counsel Committee guidance when completing practising certificate renewal applications Disclosure of a finding of guilt of an offence In answering Question 15 Counsel are directed to Note H which requires, under Suitability matters, disclosure of whether Counsel has been found guilty of an offence. A question has been raised whether minor traffic, parking and public transport offences that are satisfied by payment of an administrative penalty (without receipt of a summons to appear in court) need to be disclosed.
The Victorian Bar takes the view that such infringement notices, if paid, do not constitute a finding of guilt of an offence within s. 1.2.6 of the Legal Profession Act 2004 and therefore, in usual circumstances, do not need to be disclosed. An exception to the usual circumstances would exist where, by reason of the frequency or number of such infringement notices, or by a persistent failure to pay such infringement notices, a pattern of conduct is demonstrated which bears upon the question as to whether the applicant is a fit and proper person to hold a practising certificate. There is an onus upon all applicants to disclose any other matter appropriate for the Legal Services Board to consider in deciding whether you are a fit and proper person to hold a practising certificate : see Note H(f) and s. 2.4.4(1)(f) of the Act. Any finding of guilt by a court, after receipt of a summons to appear, whether by a plea of guilty or otherwise, does need to be disclosed: see ss. 1.2.6, 1.2.8, 2.4.4 and 2.4.7 of the Act. Pre 2004 Act offences A further question has arisen as to whether Counsel who have, prior to the 2004 Act coming into force, disclosed offences to an RPA, are required to further disclose the same matters to the LSB, or its delegate. Following discussions with the LSB the Victorian Bar advises that, providing a matter was disclosed to an RPA (either Vicbar or the LIV) prior to the 2004 Act coming into force, the same matter does not need to be disclosed again. But if the matter was not disclosed to an RPA prior to the 2004 Act coming into force, and has not been disclosed to the LSB (or one of its delegates) since the 2004 Act came into force, the matter must now be disclosed (once) to the LSB (or one of its delegates) -this position applies even if the matter was disclosed to the Board of Examiners (prior to admission).