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

Practising certificates: A fit and proper review

Every Issue

Cite as: Cite as: March 2012 86 (03) LIJ, p.70

New policies aim to help lawyers understand disclosure obligations.

April is the month for the renewal of practising certificates for the 2012-13 practising year. In renewing their practising certificate, every Victorian lawyer will be called on to attest to the fact that they are a fit and proper person to hold a practising certificate.

Lawyers often contact the LIV and Victorian Bar, the Legal Services Board’s delegates for the granting and renewal of practising certificates for Victorian lawyers, seeking further guidance on the types of suitability matters that should be disclosed in a renewal application. For example, is it necessary to disclose a speeding fine or a fine for fare evasion, and what if a matter has been disclosed previously, does it need to be declared again?

It is important that lawyers are familiar with the disclosure obligations provided in the Legal Profession Act 2004 and relevant case law, as a failure to disclose certain matters may adversely reflect on a lawyer’s fitness to practise.

The Act does not provide a definition of “fit and proper person”. What it does provide, however, is a list of suitability matters that may be taken into account when considering whether a person is fit and proper to hold a practising certificate. These matters include things like whether a lawyer has been found guilty of an offence, is the subject of disciplinary action or has contravened a law that relates to trust money.

To help lawyers meet the disclosure obligations under the Act and relevant case law, the Board recently revised its fit and proper person policy to provide guidance on matters that should be disclosed to the Board as well as the issues that may be considered in deciding whether a person is fit and proper to hold a practising certificate.

The policy clarifies the disclosure requirements under the Act and relevant case law, which affirms that honesty, openness, candour and frankness are particularly relevant to legal practice. Furthermore, Victorian courts have determined that non-disclosure of suitability matters may be taken into account when assessing a person’s fitness to practise. It is therefore important that lawyers disclose all suitability matters, even if they are unsure about the relevance of the issue. Disclosure of suitability matters will not necessarily result in a finding that a lawyer is not fit and proper to hold a practising certificate. The Board takes into account a range of factors in determining the suitability of a lawyer. Accordingly, the Board may give consideration to the honesty demonstrated by the lawyer in disclosing the matter to the Board.

What should be disclosed

Below are a few examples of the types of matters that should be disclosed in accordance with the fit and proper person policy.

Convictions, charges and pending criminal proceedings

Criminal convictions, charges and pending criminal proceedings should be disclosed. Serious offences fall within the definition of “show cause event” and, as such, must be declared. The Board will generally disregard conduct related to convictions or charges where: the charges were subsequently withdrawn; the person was acquitted of the charges; the conviction was subsequently quashed; the conviction is now a spent conviction; unless the conduct related to the convictions or charges might reasonably be taken to indicate dishonesty, disregard for the law or a risk to consumers or to the community more broadly.

Academic and general misconduct

Academic misconduct (including plagiarism, collusion and cheating) should be disclosed. General misconduct, which may reflect on a person’s fitness to hold a practising certificate, should be disclosed.

Administration of justice offences

Administration of justice offences should be disclosed. The Board will generally consider that a person is not fit and proper to engage in legal practice and/or hold a practising certificate if they have been found guilty of:

  • contempt of court;
  • an offence or offences that indicate serious disregard for the law or the administration of justice;
  • an offence or offences that harm the integrity of the legal profession;

unless there are mitigating circumstances.

Insolvency

Insolvency falls under the definition of “show cause event” in the Act and, as such, must be disclosed. The Board will generally not refuse to grant or renew, or cancel or suspend a practising certificate because a person is insolvent under administration unless:

  • the circumstances indicate a lack of honesty or integrity;
  • the circumstances involve tax evasion;
  • the insolvency relates to the practitioner’s legal practice or a related incorporated legal practice.

However, the Board may refuse to grant or renew a local practising certificate with trust authorisation during the relevant period.

Social security and tax mispayments

The Board will usually disregard tax penalties and social security overpayments unless they occurred in circumstances that might reasonably be taken to indicate, as above, dishonesty, disregard for the law or a risk to consumers or to the community more broadly.

Contravention of a disciplinary order

Contraventions of disciplinary orders made under the Act should be disclosed. The Board (or its delegate) will generally send a notice to a person who has not complied with a disciplinary order of the tribunal or a court, requiring compliance within a reasonable period. If the person has not complied within that period, the Board will generally consider the person is not fit and proper to hold a practising certificate unless: the disciplinary order involves payment of money and the person enters into, and continues to comply with, a payment scheme acceptable to the Board; or there are other relevant mitigating circumstances.

Matters that may not need to be disclosed

Infringement offences

Infringement offences that may be expiated by payment of an administrative penalty and minor traffic offences will generally not need to be disclosed, including:

  • parking offences;
  • minor traffic offences; and
  • public transport offences;

unless the circumstances, frequency or number of offences or failure to pay a penalty (or penalties) indicate a disregard for the law and/or are part of a course of conduct that might reasonably be taken to indicate dishonesty, disregard for the law or a risk to consumers or to the community more broadly.

Mental health policy

The Act provides that a current “material mental impairment” should be disclosed. In revising the fit and proper person policy, the Board resolved to develop a separate mental health policy, which sets out the Board’s approach to lawyers who disclose a mental impairment. The policy specifies that the Board is not concerned with practitioners who are effectively managing mental impairment and there is no requirement to disclose in those circumstances. Nor is disclosure required where lawyers have a mental illness which has no impact on their capacity to engage in legal practice.

The Board appreciates that legal practice can place significant stresses and pressures on lawyers. This environment can have a detrimental impact on the mental health of lawyers. It is also apparent that individual experiences of mental illness such as depression and anxiety disorders vary significantly with respect to duration of illness, symptoms, severity and impact on functioning. It is important to focus on the impact of mental illness on functioning, rather than the diagnosis. Someone with a mental illness may not have a mental impairment if they are effectively managing their illness with appropriate treatment and/or medication.

Accordingly, mental impairment is only relevant to the Board where it affects a lawyer’s capacity to engage in legal practice. This reflects the Board’s desire to encourage lawyers with mental illness to voluntarily seek appropriate treatment without the added anxiety over disclosure to the legal regulator. Many people with depression and anxiety disorders, for example, can participate in the workforce without any adjustments or support mechanisms. Other people with depression or anxiety may need either short or long-term adjustments to support their participation in the workforce. Others may not be able to participate at all, due to the severity and impact of their illness.

As well as family, friends and health practitioners, there are a number of dedicated organisations and services that provide care and assistance for lawyers experiencing issues associated with mental impairment. The following are some of the organisations that can play an important role in alleviating the impact of mental illness or the everyday stresses and pressures of legal practice that can, if unchecked, affect a lawyer’s capacity to do their job:

  • LawCare;
  • BarCare;
  • beyondblue;
  • The Black Dog Institute;
  • The Tristan Jepson Memorial Foundation.

Further information

The fit and proper person policy and mental health policy can be downloaded from the Board’s website at www.lsb.vic.gov.au.

For further information on the policies, contact the Board on ph 9679 8000.

The Board has delegated the function of assessing practising certificate renewal applications to the LIV for solicitors and Victorian Bar for barristers. Practitioners should contact the LIV or Victorian Bar for any queries relating to the renewal form or application process.

The fit and proper person policy and mental health policy were developed after extensive consultation with relevant interest groups, including the LIV, Victorian Bar, Board of Examiners, the Australian Corporate Lawyers Association, the Victorian Equal Opportunity and Human Rights Commission, the Victorian Health Services Commissioner and beyondblue. No new obligations are imposed on lawyers as a result of these policies; rather, they simply clarify disclosure requirements under the Act and relevant case law.

The Board treats all disclosed information confidentially and performs its functions without discrimination.




MICHAEL McGARVIE is the Victorian Legal Services Commissioner and CEO of the Legal Services Board.

Comments




Leave message



 
 Security code
 
LIV Social
Footer