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Ethics: Maintaining (social) security

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Cite as: September 2013 87 (9) LIJ, p.76

Illegitimate access to state benefits threatens admission and practice entitlements. 

The concept of “good fame and character”, or the like, has from early times been a core inquiry upon an application to admission to practice as a lawyer. The logic is evident: only those whose character and reputation meet the requisite standard can be trusted, and privileged, by society to be “custodians” of the law. By parallel reasoning, those who no longer meet that standard should not remain in the profession.

One could be forgiven for believing that good fame and character is capable of transcending both time and place. This belief is inaccurate. Nineteenth century America, for instance, was rife with lawyers who had committed acts that today would never see them admitted to practice. Though often stemming from the (common) practice of duelling to settle disputes, they were not so confined.1 The first real attempt to beef up the character requirements for admission, it seems, was influenced by hardly covert racism.2 The mid-20th century saw a stepping up of character investigation upon admission, with the establishment of moral fitness committees, which inquired into matters that, inter alia, today would be seen (at least in Australia) as counter to anti-discrimination laws.3

While Australia may not have experienced the chequered history of the United States in this regard, it should not be assumed that concepts of good fame and character are incapable of shifting in this country. Media publicity in the late 1990s regarding lawyers who shirked their tax responsibilities, and in some instances left the public purse to carry the cost of their bankruptcies, prompted an ostensible shift in perception as to matters of character relevant to admission, and to continuation in practice. Both bankruptcy and taxation offences now statutorily figure prominently in matters going to admission and to the retention of a practising certificate.4

Also, again germinating primarily in the late 1990s, and blooming since, is the significance, character and reputation of findings of academic misconduct against applicants for admission. Almost without exception, the cases now target findings of academic misconduct as potentially incompatible with admission.5 And it is now common for universities to be requested to supply assurances that applicants have not been subjected to (in some instances, even charged with) academic discipline.

The taxation cases reveal that a failure to meet taxation (and associated) obligations amounts to disrespect for the law that may well be incompatible with (continuing) status as a lawyer.6 The point has greater force in the face of attempts to illegitimately shield income from taxation. The latter, ultimately ties dishonesty to disrespect for the law. Inquiry into academic misconduct may similarly raise questions of dishonesty, not infrequently driven by attempts to secure a benefit to which one is not entitled, legally or morally.

Consistent with the trend, other pre-admission behaviour that casts a shadow over an applicant’s respect for the law, and the fair play that underscores it, cannot but be relevant to inquiry into good fame and character. For example, in Re Application by Saunders7 Riley CJ refused admission to an applicant convicted as a result of his failure, between 2006 and 2008, to declare earnings from casual employment to Centrelink, while at the same time receiving Austudy. He found that the applicant knew that he was committing a criminal offence, and viewed his subsequent assertions to the contrary as “fanciful” and as reflective of “an effort on his part to minimise his culpability”.8 When coupled with an attitude lacking candour to the court, Riley CJ was unconvinced that the applicant was fit to be admitted to practice.

In Jarvis v Legal Practice Board9 admission was refused less as a result of convictions for stealing a decade and more earlier, but for the applicant’s more recent finding of academic misconduct and conviction for defrauding Centrelink.

It stands to reason, therefore, that applicants for admission cannot be assured that admission bodies will view apparently “minor” social security infringements with any great tenderness. If this is so for applicants for admission, the same may ensue vis-a-vis lawyers continuing entitlement to practice in the wake of social security fraud. In an era where Australia seems progressively (some would argue regressively) to approach a welfare state, and where not all state benefits are confined to low income earners (consider, for instance, the first home owner grant, the baby bonus and family tax benefits), not all lawyers will be immune from the temptation to illegitimately “milk” what is available. Yielding to any such temptation cannot, as a result, but elicit a stern disciplinary response.10

GINO DAL PONT is Professor, Faculty of Law, University of Tasmania.

1. See R Roots, “When Lawyers Were Serial Killers: Nineteenth Century Visions of Good Moral Character” (2001) 22 Northern Illinois UL Rev 19.

2. D L Rhode, “Moral Character as a Professional Credential” (1985) 94 Yale LJ 491 at 499.

3. See C M Langford, “Barbarians at the Bar: Regulation of the Legal Profession Through the Admissions Process” (2008) 36 Hofstra L Rev 1193.

4. See, for example, Legal Profession Act 2004 (Vic) ss 1.2.6 (“suitability matters”), 2.4.26, 2.4.27 (“show cause events”).

5. See, for example, Re AJG [2004] QCA 88; Re OG (A Lawyer) (2007) 18 VR 164; [2007] VSC 520.

6. See, for example, New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284.

7. (2011) 29 NTLR 204; [2011] NTSC 63.

8. (2011) 29 NTLR 204; [2011] NTSC 63 at [24].

9. [2012] WASAT 28.

10. See, for example, Law Society of Tasmania v Matthews [2010] TASSC 60 (respondent struck off as a result of making two false declarations to secure the first home owner’s grant).


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