Questions over mental fitness to practise involve two competing and worthy considerations.
It goes without saying that people admitted to practise law must exhibit good fame and character. Beyond questions over fame and character, however, admission rests upon inquiry into whether a person “is currently unable to satisfactorily carry out the inherent requirements of practice as an Australian legal practitioner”.1 The inference is that a person who cannot satisfactorily carry out these requirements should not be admitted.
Although it may be argued that prior behaviour that speaks negatively of a person’s fame or character, such as proven dishonesty, can cast a shadow over his or her ability to carry out the “inherent requirements” of practice (one of which is honesty), the statutory language, when viewed in context, more likely targets non-character related issues. In particular, it is primarily concerned with matters of mental health or illness. Issues of mental ability are placed to one side, in being “sub-contracted” to the relevant tertiary institution. Likewise physical disability presents as no impediment to admission to legal practice, even if it may make practice itself more challenging.
There is, accordingly, an expectation that applicants for admission disclose to the relevant admitting or regulatory authority any condition including mental illness “which might affect the applicant’s present ability to engage in legal practice”.2 This has been challenged by the Australian Law Students’ Association, which in May 2016 penned an open letter to federal and (some) state attorneys-general calling for the removal of “mental health disclosures” at the time of admission. The letter expressed concern that any such obligation may discourage law students from seeking assistance if experiencing mental health issues and, more generally, further stigmatise discussion of those issues.
Assuming that a mental illness does not itself prompt conduct that impinges on an applicant’s good fame and character – and the associated notion that “[p]otential lawyers are judged on what they do rather than what they are”3 – it is difficult not to have some sympathy with this view. At the same time, though, judges have spoken of the need to protect the public from “the damage that could be caused by an unsuitable person, for example by a possibly mentally unstable legal practitioner, handling their affairs”.4 And it is hardly uncommon to find lawyers in disciplinary cases resorting to evidence of mental illness in attempts to mitigate their misconduct.5
There is clearly a tension between two competing and worthy considerations. One is to avoid discriminating against an individual, otherwise qualified for admission, by reason of a disability. The second targets the broader public interest, specifically to ensure, as far as possible, that clients are not disadvantaged simply by choosing a lawyer whose mental illness could prejudice the representation.
One way of addressing the tension is to target matters going to good fame and character at the admission stage, and reserve questions over mental illness to the practising certificate stage. This proceeds on the assumption that questions over mental fitness to practise need not be addressed before a person applies for his or her ticket to practise. This was essentially what Carmody J did in a recent case involving an applicant for admission diagnosed with schizophrenia.6 A finding that the applicant was “probably unable to satisfactorily carry out the inherent requirements of legal practice” because “[t]he delusional thinking characterising the applicant’s illness is unpredictable and poses a significant risk to proper judgment, effective communication and interpersonal relationships”,7 did preclude admission per se. Carmody J ultimately left it to the body charged with issuing practising certificates to decide whether, at any application for a practising certificate, the applicant could satisfactorily carry out the inherent requirements of legal practice.
That such a course may misalign with the statutory mandate and simply defer the difficult questions does not deny its potential utility in distinguishing admission from practice. Existing avenues for placing conditions on practising certificates (allied to questions over the legitimacy of conditional admission) may provide a way forward. One thing is certain: the issue is not likely to recede in view of research revealing lawyers are disproportionately represented when it comes to depression and anxiety.8
Gino Dal Pont is Professor, Faculty of Law, University of Tasmania.
1. Legal Profession Uniform Admission Rules 2015 (Vic), r 10(1)(k).
2. Law Admissions Consultative Committee, Disclosure Guidelines for Applicants for Admission to the Legal Profession (Law Council of Australia, June 2015), cl 7.
3. Bartlett and Haller, “Disclosing Lawyers: Questioning Law and Process in the Admission of Australian Lawyers” (2013) 41 Fed L Rev 227 at 248; emphasis in original.
4. XY v Board of Examiners  VSC 250 at  per Habersberger J.
5. See Dal Pont, Lawyers’ Professional Responsibility (6th edn, Lawbook Co, 2017), [23.145].
6. Doolan v Legal Practitioners Admissions Board  QCAT 98.
7. Note 6 above, at .
8. See, eg, Chan, Poynton and Bruce, “Lawyering Stress and Work Culture: An Australian Study” (2014) 37 UNSWLJ 1062.