Warts and All: The Impact of Candour in Assessing Character for Admission to the Legal Profession

Article excerpt

A person who seeks admission to the legal profession must be a fit and proper person to be admitted. (1) One aspect of that criterion is that the person is of good fame and character. (2) Past conduct has invariably been treated by admitting bodies as indicative of a person's character and suitability for undertaking the professional duties and responsibilities of a lawyer.

Admission procedures require the applicant to disclose relevant past conduct. The applicant is the one person who has full knowledge of his or her past conduct that may bear on the person's character and fitness to practise. The applicant's candour in disclosing past conduct or lack of candour about past conduct may affect the outcome of the admission application.

Reference will be made to categories of past conduct that may be relevant in determining whether an applicant for admission is of good character. The effect of the applicant's candour about past conduct on the assessment of the applicant's character will then be examined.

In considering cases in which candour has played a significant role in determining whether an applicant is successfully admitted to the legal profession, the issue arises whether the emphasis on candour has overshadowed the assessment of the applicant's character by reference to past misconduct.

I Past Conduct

Whether an applicant for admission is of good fame and of good character invites a wide-ranging enquiry. The categories of past conduct that may be of relevance to the admitting body's task are extensive. Some guidance may be provided by the statutory provisions covering admission where there is a list of matters relating to suitability for admission. (3) Obvious conduct that must be disclosed includes convictions for dishonesty offences, convictions for other types of criminal offences, guilty pleas to criminal offences that do not result in the recording of convictions, (4) academic misconduct in the course of University studies, bankruptcy or other insolvency, investigations by the Australian Securities and Investments Commission of companies associated with an applicant, any restriction on an applicant's right to engage in legal practice in another jurisdiction, whether an applicant is the subject of a restraining or other type of order directed at preventing domestic violence, and persistent traffic breaches. (5) The need to disclose other past conduct might not be as obvious to an applicant, but if it has the potential to be relevant to the admitting body's consideration of the application, it must be disclosed. (6) This includes criminal proceedings which have not resulted in convictions, (7) prior history of depression and the circumstances in which the applicant left the army, (8) and an unresolved contempt allegation arising out of litigation conducted personally by the applicant. (9)

II Candour in Disclosing Past Conduct

The critical role played by candour in disclosing past conduct was emphasised by the High Court in Re Davis} (10) Although that decision was concerned with the removal of the appellant's name from the roll of barristers after admission, it was the appellant's lack of candour about past conduct for the purpose of his admission that was the basis of the decision. The appellant had been admitted as a barrister in 1946 without disclosing to the two solicitors who provided certificates as to his character or to the Barristers' Admission Board, when he applied to the Board to be a student-at-law and then for admission, that he had been convicted of breaking and entering. He committed the offence in 1934 when he was 20 years old. Subsequently he had led a life of scrupulous honesty. The appellant's conviction was revealed to the Supreme Court of New South Wales in 1947. The appellant had to show cause why he should not be disbarred. The appellant obtained affidavits attesting to his character from the two solicitors who had previously provided certificates as to his character, the Attorney-General for New South Wales, a professor of law, a minister of religion and a detective constable of police. …