this product is unavailable for purchase using a firm account, please log in with a personal account to make this purchase.

Ethics : Disclosure of an uncomfortable history

Every Issue

Cite as: (2003) 77(6) LIJ, p.77

The requirement to be a “fit and proper” person for admission to legal practice means that ethical histories of practitioners are now being closely examined.

The conditions for admission to legal practice include the requirement that an applicant must be of “good reputation and character and a fit and proper person to be admitted”.[1] This seemingly passé requirement is occasionally, however, demonstrated to be anything but irrelevant. The ethical histories of intending practitioners are now being scrutinised more closely.[2]

In Law Society of Tasmania v Richardson,[3] the Tasmanian Supreme Court considered the impact of an allegation of academic plagiarism at law school on the fitness of an applicant to be admitted. In 1999, Scott Richardson was a University of Tasmania law student who worked cooperatively with another student on a trusts assignment. Both students submitted assignments that were nearly identical and Mr Richardson faced disciplinary proceedings. Although Crawford J was later inclined to the view that the other student had plagiarised Mr Richardson’s work (rather than the reverse), for reasons peculiar to the law school’s disciplinary process and a complex cycle of events, Mr Richardson was initially found to have plagiarised the assignment. He successfully appealed the finding.

When Mr Richardson subsequently applied for admission, he chose to rely only on an affidavit from his father,[4] an experienced criminal lawyer, as to his (the applicant’s) good character. That affidavit made no reference to the law school plagiarism proceedings. Interestingly, the Court was prepared to accept that Mr Richardson’s father had taken the view that the plagiarism proceedings did not need to be disclosed because the allegation at the heart of the proceedings was not correct.

Mr Richardson gave evidence that a law school academic (a legal ethics expert) had advised him that he did not need to disclose the disciplinary history to the Court. However, the academic in his evidence denied this and said that, while he could not remember the conversation precisely, he would have said that the proceedings needed to be disclosed, although the law school could not compel same, and the decision as to what he should do was Mr Richardson’s.[5]

The Law Society of Tasmania subsequently sought an order from the Court (after Mr Richardson’s admission) that he be struck off for failing to disclose the disciplinary history. Crawford J refused the order, finding that Mr Richardson knew that he had not plagiarised anything, had sought advice from his parents and the law school as to what he was obliged to do and had, in effect, applied to be admitted in good faith. Crawford J found that at the most, Mr Richardson had made an error of judgment based on the advice of two experienced practitioners (who were also his parents), but that this did not justify his removal from the roll.

The result of this case is that, while it may not in all circumstances be incumbent on an applicant to disclose an (innocent) law school disciplinary history, not to do so still involves considerable risk. Much seemed to depend, according to the Court, on the reliance Mr Richardson placed on his parents for advice on all matters to do with his studies. Mr Richardson (at age 22) was apparently still assisted by his mother to complete assignments.

It was a peculiar finding of the Court that the applicant, although old enough to be admitted to practice, was not so old as to be required to take responsibility for his own adulthood. Mr Richardson was permitted to rely on the (arguably erroneous) advice of his practitioner parents. Even more curiously, the Court improbably found that an experienced legal ethicist (despite his own doubts as to what had been said) did not advise him to disclose his history.

These findings have a number of implications. First, the decision might tend to shift the responsibility for disclosure of a prior uncomfortable (though ultimately blameless) history away from the applicant to advisers. If the Court’s judgment is seen as credible, immature law graduates who seek the counsel of anyone whom they trust on matters that may be at most embarrassing if disclosed, might now do so with some confidence. Second, law school academics must now evidently ensure that they record all discussions with all students affecting matters of admission, lest a court decide that they did not advise what all experienced and respected legal ethics teachers would advise – that all matters that could even remotely affect probity ought to be disclosed.

While Mr Richardson’s case is probably anomalous because of its strange facts, it does raise a third possibility, now under active discussion in the US:[6]6 if the courts do not always insist on disclosure and require an explanation, should the admitting authorities require law schools to advise them of applicants’ disciplinary histories?


ADRIAN EVANS is associate professor in law at Monash University and former coordinator of Springvale Legal Service Inc.

ethics@liv.asn.au


[1] Legal Practice (Admission) Rules 1999, r4.01(1)(c).

[2] In Victoria, as of 1 March 2003, two affidavits as to character must now be sworn by “acceptable deponent(s)”, who must have known the applicant for at least 12 months: Legal Practice (Admission) (Amendment) Rules 2003, r1.05(1). Significantly, the new Schedule 9 pro forma affidavit requires deponents to specify the circumstances in which they have known the applicant.

[3] [2003] TASSC 9.

[4] Note 2 above. An affidavit from a parent remains admissible, but the nature of the relationship will require specific disclosure.

[5] Note 3, para 51.

[6] See general comments on the website of the University of South Carolina – Nelson, Mullins, Riley and Scarborough Center on Professionalism at http://www.prof-ism@vm.sc.edu.

Comments




Leave message



 
 Security code
 
LIV Social
Footer