#13079 - Admission To Practice - Ethics

Admission to Practice

• Admission Process Summary:

  • The actual admission is a formal order of the SCV

    • The Supreme Court decides if you are:

      • Eligible:

        • 18, qualified, and trained

      • Fit and Proper Person s 15 Uniform Law

        • The objective of this Part is to protect the administration of justice and the clients of law practices by providing a system under which persons are eligible for admission only if they have the appropriate academic qualifications, and they are fit and proper persons to be admitted s 15

        • May base decision on VLAB recommendation

        • VLAB may consider any matter relevant to the persons eligibility

        • VLAB must consider matters specified in the Admission Rules for the purpose of this section

        • Will consider:

          • Suitability matters and relevant circumstances

          • Disciplinary action at Uni/PLT

          • Any other relevant matters

  • Then you take out a practising certificate which is granted by the Legal Services Board which is delegated to the LIV and the Bar.

    • The LSB must not grant or renew a practising certificate if not satisfied that the applicant is a fit and proper person.

  • Take oath or make affirmation.

  • Admission makes you an Australian lawyer; holding a practising certificate makes you an Australian legal practitioner

  • Renewal:

    • Uniform Law ss85-86: Even if there is no complaint, investigation or disciplinary action, matters affecting suitability for practice must still be disclosed to the LSB when applying to renew annual practising certificate:

    • Disclose any “show cause” event Uniform Law s85

      • You already have a certificate.

      • Provide reasons why you are a fit and proper person despite a show cause event.

      • What is an automatic ‘show cause’ event? s 87

        • Initiation must be by the practitioner.

        • Bankruptcy and receivership

        • A serious offence, or a tax offence

        • How do you show cause?

          • Puts an obligation on the practitioner to provide a mandatory statement to be provided by the P to the LSB showing cause why they should have a certificate (why they are ‘fit and proper’).

      • What is a designated ‘show cause’ event?

        • This is initiated by the LSB

        • Breach of condition attached to certificate

        • E.g. indemnity insurance

        • How do you show cause?

          • Same as automatic ‘show cause’.

• Eligibility for admission:

  • The Supreme Court of Victoria may admit an individual aged 18 years or over to the Australian legal profession as an Australia lawyer if

    1. they have a compliance certificate

    2. the person is not already admitted and

    3. the person takes an oath in the form required s 16(1) Legal Profession Uniform Law Application Act 2014 (“Uniform Law”)

  • They do not need to be a resident s 16(2) UL

  • Anyone can object s 16(3) UL

  • The Supreme Court can refuse admission despite having the compliance certificate s 16(4) UL

• Compliance certificates

  • Pre-requisites for a compliance certificate which VLAB (Victorian Legal Admission Board) may provide to the SCV s 17(1) UL

    • The person must have

      1. the correct academic qualification

         • Under current LPAR, include a completed degree at an approved institution, undertaken necessary subjects, sufficient knowledge of written and spoken English

         • Can be exempted under s 18(1) if the local regulatory authority is satisfied that they have sufficient legal skills to render them eligible for admission.

         • The academic qualifications are the completion of a course of study by particular institutions in Victoria r 2.01 LPAR

      2. completed their practical legal training and;

         • This must be an approved PLT course, or supervised workplace training OR demonstrating to the Board of Examiners an appropriate understanding and competence in the necessary skills set out on the Schedule 3 r 3.01 LPAR

         • r 3.09 sets out what a supervised workplace training requires.

           • PLT completed at Leo Cussens, or supervised legal training

           • Applicant must acquire and demonstrate an appropriate understanding of and competence in each element of the skills, values and practice areas set out in sch 3.

      3. be a fit and proper person

      • In considering whether a person is fit and proper, VLAB (Victorian Legal Admissions Board) may have regard to any matter relevant. VLAB must consider matters specific in the Admission Rules s 17(2)

  • Appeal

    • A person may appeal to the SCV against the refusal of VLAB to issue a compliance certificate s 26(1) or the revocation of one s 26(2) or as a foreign lawyer s 26(3)

  • Declaration of early assessment of suitability for a compliance certificate s 21

    • A person may apply to VLAB for a declaration that matters disclosed will not adversely affect an assessment as to whether the person is a fit and proper person s 21(1). A declaration made under this section is binding on VLAB unless the applicant failed to make full and fair disclosure of all matters relevant to the decision being sought s 21(3).

    • This can be appealed to the SCV under s 27.

• Administrative Requirements under the LPAR (Legal Profession (Admission) Rules 2008)

  • At least one month before the SCV sitting, the applicant must serve on the Board of Examiners a notice of intention to be admitted and post a copy to the Supreme Court r 5.01

  • They must provide documents in support of their admission including affidavits that state that they have the right academic qualifications, PLT, disclosing any matter that might not be favourable to them, police record check, academic conduct report, affidavits of character, and affidavits from those involved with them r 5.02

  • Foreign requirements are under r 5.03.

  • Interstate or NZ lawyers have mutual recognition legislation r 5.04

  • Overseas practitioners must submit certain documents r 5.05

• Fit and Proper Person:

  • An applicant is generally assumed to be fit and proper unless there is evidence to the contrary.

    • According to Hughes and Vale Pty Ltd v NSW 1995 HCA, fit involves honesty, knowledge and ability.

  • Onus on applicant to establish fitness (Practice Direction No 2 of 2012; Re B)

    • The candour demonstrated in any disclosure by an applicant is highly relevant when determining present fitness PD 2

    • An applicant’s present understanding and estimation of the applicant's past conduct is relevant PD 2

  • Timing of disclosure

    • The test is whether you are currently fit and proper – past conduct is relevant, but not decisive. Fitness is assess at the TIME OF APPLICATION Re B

    • A man may be guilty of grave wrongdoing and may subsequently become a man of good character Latham CJ in Re Davis 1947

    • The false steps of youth are not always final proof of defective character. This case showed a ‘strong contrast’ between two periods. Ex Parte Lenehan 1948

    • However a failure to admit one’s past errors can be inconsistent with good character Wentworth v NSW Bar Association 1994

    • Age is also a relevant character

      • But when past conduct goes beyond youth, and amounts to a sustained course of unacceptable conduct well into maturity, then question arises about applicants present fitness, based on past conduct Re B (Wendy Bacon)

  • What needs to be disclosed?

    • Applicant must disclose any matter which a reasonably applicant thinks might be relevant to the Admitting Authority considering whether the applicant is currently of good fame and character and is a fit and proper person for admission to the legal profession. The applicant must state whether any of the suitability matters set out in Appendix 1 apply to the applicant along with any other matter PD 2

      • Reasonably applicant is an objective test Re OG

      • What a person of principle and good standing sitting in the position of an applicant

      • The below examples are relevant to such a determination

      • The obligation of disclosure requires the applicant to be ‘frank and honest’ with the BOE and the court about ‘anything’ even ‘ancient peccadillos’ which might reflect adversely on their fitness and propriety to be admitted to practice OG’s case

    • The Board will generally consider that a person is not fit and proper in circumstances involving dishonest, prior history of similar offences or other relevant conduct indicated a disregard for the law, or indicating a material risk of harm to consumers of legal services unless there are mitigating circumstances LSB Fit & Proper Person Policy

    • Disclosure requirements extend to any matter which reflects negatively on the applicant’s honesty, candour, respect for the law or ability to meet professional standards PD 2

    • Examples PD 2

      • Criminal conduct, including a charge that was subsequently withdrawn

        • The existence of old convictions, even for offences involving dishonesty, are not a necessary bar to admission Frugtniet v Board of Examiners 2005

        • But disclosure is not just an obligation to list convictions or charges, but to inform the decision maker of everything that could bear upon the decision to admit. You can’t select or edit from life experiences Frugtniet

        • If the offender is contrite about the crime, or still blames the other party, this may reflect negatively on them In the Matter of an Application by Thomas Jane Saunders

        • The court will look at the past crime, and at the circumstances and reasons behind the crime (and also perhaps whether the trial was improperly conducted) Ziems v Prothonotary of the Supreme Court of NSW 1957

        • A ‘massive bag of dishonest conduct’ may be a bar to admission particularly as the level of trust placed in legal practitioners is high Frugtniet

        • Examples:

          • Lying about a bail application was convincing for a court to deny admission Wendy Bacon

          • The Court may need to look behind the conviction to the conduct which is the subject matter, can’t just disbar because there is a conviction Ziems v Prothonotary of the...