CORO 2012 - Admissions and discipline
case studies
Important developments in the areas of admissions and
lawyer discipline
A focus on admissions
Ross Perrett
© Clayton Utz
A frank disclosure - no case study
BUT 4 areas of interest for consideration
Admissions
1. Duty of disclosure - where do you draw the line
2. Material non-disclosure revealed post admission how is this dealt with?
Re-admissions
3. Is the bar set higher for an applicant for re-admission?
4. How relevant is an absence of remorse?
Suitability for admission - Queensland LPA
Section 31 (1)
•A fit and proper person to be admitted
Section 31(2) - In deciding if applicant is fit and proper
•Consider each of the suitability matters
•Any other matter the Court considers relevant
Section 9 - Suitability matters
•the person is currently of good fame and character
Admission Rules - s.9(2)(j)
•give a statement to the Board about the eligibility and suitability for
admission and certificate that "I am suitable for admission".
Re: Hampton (2002) QCA 129
"An applicant is obliged to approach the Board and
later the Court, with the utmost good faith and candour,
comprehensively disclosing any matter which may
reasonably be taken to bear on an assessment of
fitness for practice".
•what must be disclosed?
•where do you draw the line?
•the Court's focus rests primarily on the public interest
Disclosure • Centrelink fraud
• Plagiarism
• Dealing in drugs/consuming illicit drugs
• Traffic offences
Disclosure - damned if I do and damned if I don't
• Undetected criminal offence
•
•
•
Stealing property
Sexual assault
Illegal entry
• will never be detected - maybe no-one else knows
• no conviction/no investigation
• does the privilege against self-incrimination justify non-disclosure?
• if you disclose - how far do you go?
"the obligation of candour does not permit deliberate or reckless
misrepresentation pretending to be disclosure".
• Is an applicant better off "taking the punt" rather than risk nonadmission or worse
Later exposure of a material non-disclosure
• Can the regulator take disciplinary action? - it is pre-admission conduct
• Can the Court intervene?
• The Court has emphasised "the primacy of the pro-active obligation to
make candid, comprehensive disclosure".
• Can the admission be "un-wound" by the Court
• On what grounds - it is a final order of the Court
• If not, the non-discloser is in a better position than the discloser
• Is the admission "tainted by fraud"?
• Who has standing to apply to the Court?
•
regulator, admissions board, law society
Application for re-admission
• Is the obligation to disclose factors relevant to "fit and proper" and
"good fame and character" set higher for applicants for (re)
admission?
• Applicants for (re) admission must displace the earlier judgment
that they were permanently unfit to have their name on the Roll.
• Can there be a higher "bar" of "fit and proper" conduct that is
applicable to applicant's for readmission?
• Macpherson JA in Bax: "Basic honesty is not a quality that is
acquired through experience or by lengthy practice of trying one's
best to be honest". Is "fit and proper" conduct in the same
category?
Is remorse a pre-requisite to an application
for readmission
• Re Hiss
•
"Applicant not disqualified for reinstatement solely
because he continued to deny he had committed the crime
on which his disbarment had been based".
• Watt v The Law Society of Upper Canada
• Zaidi v Health Care Complaints Commission
•
The proposition in Hiss is a narrow one - confession is not
a necessary pre-condition to reinstatement
Re Wright
• "I find it difficult to express remorse with respect to any of
the findings which were based on the acceptance of [X]
evidence
• [X] lied
• I have never accepted that [X] evidence should have been
preferred to mine…
Wilson J: There would be a powerful argument that her attempt
to explain her lack of remorse would amount to a
collateral attack on the findings of the Tribunal and…
disallowed as an abuse of process".
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