Issues:

• Non-disclosure of misconduct prior to admission.
• Truthfulness and candour of a legal practitioner.
• Interference with the administration of justice.
• Conduct outside practice.

Desired Outcomes:

• To develop a set of guidelines as to the qualities expected of a legal practitioner regarding their conduct before and during their practising as a solicitor or barrister.

1. Good fame and character

Good fame and character is both a preadmission requirement and an ongoing requirement.  There are three main areas under which suitability issues can be categorised, dishonesty, political activity, personal moral standards. Some examples include:

Section 60 of the LPA 2004 in Part 2.4, Division 6, sets out grounds on which a local practising certificate may be suspended or cancelled, which include that the holder is no longer a fit and proper person to hold the certificate. Under s 61 of the LPA 2004, where a Council is contemplating amending, suspending or cancelling a local practising certificate (amending includes imposing conditions under s 50), Council must give notice to the practitioner and consider written representations made before taking the proposed action. Division 6 which deals with ‘standard’ amendment suspension or cancellation of local practising certificates expressly does not apply to matters referred to in Division 7: s 59 show cause events.

(a) Pre-admission non-disclosures – prior misconduct

Re Davis (1947) 75 CLR 409

Struck off for not disclosing a conviction only to have the omission discovered post-admission may result in that person being struck from the rolls

New South Wales Bar Association v Jetnikoff (Court of Appeal, 18.12.1993, unreported)

Was struck off for providing on two separate occasions character references he had forged (notwithstanding the referees would have signed such references). 

More importantly he has deliberately and knowingly placed before the Court false evidence intending the Court to act upon it.

New South Wales Bar Association v Moore (Court of Appeal, 2.11.1993, unreported)

Moore a barrister was struck from the role for paying a bribe to a police prosecutor in 1983 while practising as a solicitor. He failed to report this conduct to any authority until 1992 and did not disclose it when applying for admission as a barrister in 1989.  Claim of duress failed.

New South Wales Bar Association v Thomas (No 2) [1989] 18 NSWLR 193

While on the Roll of Barristers although not actively practising T was found to have shown a lack of candour to the Court and a conscious deception of Crown Counsel as to how certain evidence in a criminal matter had been obtained. Not Struck off - Honesty during investigation regardless of consequences.

It is more likely, in cases of professional misconduct, that the Court will withhold disbarment or suspension where the practitioner has admitted guilt” and this is because “a barrister is more likely to be accepted by Judges and fellow practitioners if, despite lapses, he or she acknowledges frankly a recognition of the errors that led to them.”

Prothonotary v Del Castillo (Court of Appeal, Unreported)

The question is present unfitness, not fitness as at the time of the crime.

Even if the prosecution of an applicant for a criminal offence did not result in a conviction, the circumstances that resulted in the charge or even the circumstances surrounding the prosecution may reflect on the character of an applicant. The New South Wales Court of Appeal did not set out principles for when an applicant for admission should disclose any charge of which the applicant had been acquitted, but did observe that it was the prudent and desirable course for an applicant for admission to disclose at least the fact of the charge and the acquittal and to offer to supply any further details required by the admitting body

(b) Honesty/truthfulness

Re B[acon] (1981) 2 NSWLR 372

Political activity will rarely present an issue by itself when it comes to admission (unlike in the US and Canada). However, it can be an element. For instance, attempting to use the courts for political ends, to the point of notoriety.  In this case continual lies about source of bail monies constituted grounds for non admission.

Wentworth v New South Wales Bar Association (Court of Appeal, 14.02.1994, unreported)

Having a habit of taking fruitless legal action may also prevent admission – could not be relied on to be truthful in court

Coe v NSW Bar Association [2000] NSWCA 13

The general penalty for swearing a false affidavit would be striking off the roll

2. Interference with administration of justice

(a) Bribery

New South Wales Bar Association v Moore (Court of Appeal, 2.01.1993, unreported)
Moore a barrister was struck from the role for paying a bribe to a police prosecutor in 1983 while practising as a solicitor. He failed to report this conduct to any authority until 1992 and did not disclose it when applying for admission as a barrister in 1989.  Claim of duress failed

Prothonotary of the Supreme Court of New South Wales v Pangallo (1993) 67 A Crim R

You may have acted just as improperly as committing an illegal act yourself if you assist a client or another party to do so.  Pangallo didn’t actually bribe he assisted