Are You ‘Fit and Proper’ to be a Lawyer?

Last month, we reported on the case of an 86-year-old lawyer who was ‘struck off‘ after the NSW Civil and Administrative Tribunal declared he was “no longer a fit and proper person to engage in legal practice.”

Between July 2009 and January 2014, Bruce Hocking deducted legal fees from dividends that should have been directly passed onto his clients.

Due to the nature of the legal profession, it is a requirement that lawyers meet high ethical standards to protect against dishonest conduct such as this.

That’s why there’s a character test law graduates must go through when applying to be admitted at a lawyer – a test which must be met each subsequent year when a lawyer applies for his or her practising certificate to be renewed.

The test is supposed to act as a safeguard to ensure that people who cannot abide by laws themselves are not practising it.

The journey to becoming admitted

As the Law Society of NSW points out, the initial admission and continuing practice of lawyers in this state is governed by the Legal Profession Admission Rules 2015 (NSW), along with Part 2.2 of the Legal Profession Uniform Law (NSW).

The Legal Profession Admission Board (LPAB) is the body that determines the eligibility of those who are seeking admission as lawyers in NSW. The board will issue compliance certificates to candidates who are deemed suitable.

There’s a list of requirements that a candidate must meet to be accepted for admission. These include the completion of a relevant course of study, such as a law degree or a Diploma of Law run by the LPAB.

Practical legal training must also be undertaken. This is a structured training program designed to develop a prospective lawyer’s skills and proficiency in practising law. This is normally done on completion of a degree and results in being awarded a Graduate Diploma of Legal Practice.

And then there’s the character test, which is designed to ascertain whether a prospective lawyer “is a fit and proper person to be admitted to the Australian legal profession.” The assessment relies on a number of requirements, such as character references and conduct reports.

Practising lawyers are required to advise the Law Society of any matter which may adversely affect their character each year they reapply for their practising certificate. The question of character may also be revisited if a complaint is made to the Legal Services Commissioner or a lawyer receives a criminal conviction.

The national police history check

Every applicant is subjected to a national police history check. The LPAB will obtain the check themselves via the Australian Criminal Intelligence Commission (ACIC), which is the national information sharing service for Australia’s law enforcement agencies.

An applicant can choose to obtain their own police history check directly. But this is only necessary where a person believes they might have a prior criminal record, but are unaware of the circumstances, and wish to double check before making a disclosure statement to the LPAB.

The board will send your details – including residential addresses for the past five years – to the ACIC outlining why the check is necessary.

‘Spent convictions‘ are minor offences which do not normally need to be disclosed after a specified crime-free period of time, which is usually 10 years. However, the board requires these to be disclosed when applying to become a lawyer.

After receiving these details, the LPAB uses the information to determine whether an applicant is a ‘fit and proper person’, who is eligible for a compliance certificate.

Applicants who have lived overseas do not need to obtain foreign police reports, but will be required to provide them if asked by the board to do so.

Applicants who are the subject of a current good behaviour bond will be refused a compliance certificate, unless there are exceptional circumstances. However, an application can be made upon expiry of the bond.

Is a driving record required?

There is no requirement for an applicant to disclose their official driving record.

Indeed, ‘major traffic offences‘ which end up in court such as drink driving and driving whilst suspended or disqualified will also be contained in a person’s criminal history report.

The board requires other driving offences to be addressed in the disclosure statement, which can explain the reason behind the incident and any other subjective matters.

And what about a student conduct report?

Applicants who have been the subject of disciplinary action in relation to student conduct – whether at the tertiary institution where they obtained their relevant academic qualification, or whilst undertaking any practical legal training – must supply an official report of the matter.

Disciplinary action can include a warning or reprimand, a reduction in marks or being given zero marks, failing or being excluded from a subject, or any other penalty.

And watch out, because the LPAB conducts audits in relation to student conduct.

A duty of disclosure

An applicant has a duty to make full and complete disclosure of any matter a reasonable person “would consider the LPAB might regard as not being favourable.”

The matter will then be taken into account when considering whether a person is “currently of good fame and character,” as well as a fit and proper.

Written disclosure must be made about all matters, even if they only “might be relevant.” The LPAB provides a set of guidelines relating to disclosure,  And if an applicant’s explanation is too vague, the board will request further information.

The consequences of failing to disclose information or misleading the LPAB can be dire. It can result in admission being refused, having a compliance certificate revoked, or being struck off the roll of lawyers, if a person has already been admitted.

Applicants should be aware they are making statutory declarations when they sign the relevant application form. Making a false statutory declaration is a serious offence, and can result in up to five years imprisonment.

And of course, those character references

Two original statutory declarations about an applicant’s character must be lodged. These must be made by people known for at least two years, and that are not related by blood or marriage, or a domestic partner.

If an applicant has previously practised law in a foreign jurisdiction, the people providing their character references must have been associated with them in legal practice there.

There are four different character reference forms available, depending on an applicant’s circumstances. Each contains the precise wording needed for the references under the Uniform Admission Rules.

Prior admittance in a foreign jurisdiction

A certificate of good standing must be submitted if an applicant has been admitted as a lawyer in a foreign jurisdiction.

This is an original statement submitted with hard copy documentary evidence from the relevant professional body in that jurisdiction.

And finally, a lawyer you become…

Once you’ve applied, which can be done online, and your application is approved, it means you’re a fit and proper person permitted to practise law. You will then need to attend a ceremony at the NSW Supreme Court. There, you’ll be ‘moved’ by a practising lawyer, take an oath and sign the roll of Australian lawyers.

Oh yeah, but then there’s one last thing you’ll have to do before you can practise legally, and that’s apply for and receive your practising certificate.