The Admission Process: Where to draw the line on the character requirement
Picture Source: http://www.lawadmissions.vic.gov.au/
This article looks at the process of admission to legal practice, focusing on the requirement that the person be ‘a fit and proper person to practice law.’ It will critically examine the Supreme Court of Queensland’s treatment of domestic violence charges in Re Bell[1].
In Re Bell, the Court found that 12 breaches of domestic violence charges combined with a lack of full and frank disclosure precluded admission for Bell; however also noted that Mr Bell could be admitted in the future following the resolution of the dispute with his wife.[2] The relative lack of seriousness accorded to domestic violence charges in Re Bell may undermine public confidence and trust in the legal profession.[3]
To practice law in Australia, one must be admitted to the Australian legal profession as an Australian lawyer by the Supreme Court.[4] Each State has broadly legislation governing the admission process, however for purposes of this article the NSW provisions will be considered.[5] The Queensland Court of Appeal in Re Bell considered equivalent provisions and has precedential force in NSW.[6]
The NSW Admission Board is faced with the task of assessing potential candidates to decide if they can be admitted, pursuant to the NSW Admission Board Rules 2015.[7]
Critical to this assessment is the determination of whether someone is a ‘fit and proper person’ to practice law.[8]
The Legal Profession Uniform Law holds that the Admission process serves to ‘protect the administration of justice and the clients of law’ by making sure the person has the requisite qualifications and are ‘fit and proper persons to practice law.’[9] Mandating that lawyers have an appropriate character is based on the need for the public to be able to trust legal practitioners with important and often sensitive issues.[10]
Indeed, public confidence in the legal profession is underpinned by the knowledge that legal professionals are trustworthy people with the necessary skills and character to practice law, a fundamental tenet underpinning our society.[11] As such, it is critical that the admission process is thorough, consistent and reflective of social values.
This article will consider the case of Re Bell, arguing that the way in which the Board treated domestic violence conditions was not sufficiently serious, arguably contradicting the purposes of the Admission process and potentially undermining public confidence in the legal profession.
Bell had been bankrupt and had twelve breaches of domestic violence orders between April and November 2003; to all charges he pled not guilty, however he was convicted and given a $3000 fine as a ‘global punishment’.[12] While there was no assault or damage to property found, the magistrate found that his former wife ‘could well have felt intimidated or harassed on the occasions when she was personally aware of the breaches.’[13]
Further, a barrister who had previously acted for Mr Bell’s former wife objected to Mr Bell’s admission on the basis of his conduct in family proceedings, including swearing an affidavit which appeared to be threats to officers of the Family Court and Federal Magistrate’s Court.[14] Additionally, Mr Bell said to the Queensland Law Society that “the opposition to his admission could be traced to the pro-paedophilia lobby which reaches into the court system and the government of this state.”[15]
Part of the admission process is a ‘full and frank disclosure’ of all matters which could be relevant to the Board’s assessment of character.[16] The important principle of candour has been consistently upheld in the case law, as an obligation ‘closely related to the ethical duty of a legal practitioner as an officer of the Court not to mislead the Court.’[17] In his original application, Bell made a number of omissions, including stating that he was fined for breaches of a void domestic violence order but was never accused of committing domestic violence.[18]
The Court found that Mr Bell was not fit to practice, due to his lack of candour and apparent disrespect for the systems of law.[19] However, all that was said about Mr Bell’s domestic violence convictions was the following:
‘His behaviour in his ongoing dispute with his former wife over the custody of their children demonstrates that he presently lacks proper regard for the authority of the judicial system and that he is prepared to act improperly to achieve an end which he believes is desirable.’[20]
The Court failed to acknowledge the fundamental breach of trust and abuse of a position of power which are now widely recognised as key elements of domestic violence, and necessarily have implications on a person’s ability to practice law.[21] In emphasising merely his disregard for the legality of the domestic violence orders without mentioning the fundamental disregard for his former wife, the Court failed to understand the nature of domestic violence offences. The lack of respect for a former intimate partner may raise alarm bells in terms of their ability to respect clients and be entrusted with private matters.[22]
Further, the Court explicitly stated that Mr Bell could be admitted in the future following the resolution of family proceedings relating to his former wife:
‘The rejection of this application for admission as a legal practitioner does not forever preclude him from realising his goal. Human experience is that people sometimes behave atypically, irrationally, emotionally and unwisely when involved in a discordant marital break-up, especially where the custody and welfare of children is concerned. It may be that when Mr Bell has had the outstanding contempt proceedings finalised and his proceedings in the Family Court and Federal Magistrate Court have ended, he will be able to file material sufficient to satisfy this Court that, despite the matters of concern referred to earlier in these reasons, he has become a fit and proper person suitable for admission as a legal practitioner.’[23]
It is extremely concerning that the court was willing to consider 12 breaches of domestic violence orders as within the ambit of ‘human experience.’ This fails to adequately address the seriousness of domestic violence and the impact on the victim, as well as seeming to provide a partial justification for Mr Bell’s behaviour towards his former wife.
Following the death of her son at the hands of her husband, former Australian of the Year Rosie Batty has called on the legal system to be part of the solution to domestic violence against women and children.[24] Ms Batty has said that she lost faith in the legal system after its failure to protect her son. How could the public retain faith in a legal system which exhibits a preparedness to admit a perpetrator of domestic violence as a legal practitioner, whose relationship with clients is suppoed to be fundamentally underpinned by trust?[25]
Re Bell was decided in 2005; given the changing social tide and increased awareness of domestic violence in Australia, one would hope that the Court would accord domestic violence convictions greater weight in terms of admissibility today. Moreover, there is a significant potential deterrent effect of sending a strong message to Australian society that perpetrators of domestic violence cannot fulfil the character requirements to be admitted as a lawyer.
References
[1] [2005] QCA 151.
[2] Re Bell [2005] QCA 151, [10].
[3] Michael Brogan (ed), Professional Responsibility and Legal Ethics (Thomas Reuters (Professional) Australia Limited, 2015) 221.
[4] Legal Profession Uniform Law (NSW) s 16.
[5] Brogan, above n2, 221.
[6] Re Bell [QCA] 151.
[7] Brogan, above n2, 221.
[8] Legal Profession Uniform Application Rules 2015 (NSW), r 10.
[9] Legal Profession Uniform Law s 15.
[10] Ex parte Leneham (1948) 77 CLR 403.
[11] Brogan, above n2, 221.
[12] Re Bell [2005] QCA 151, [10].
[13] Ibid.
[14] Ibid, [11].
[15] Ibid, [16].
[16] Brogan, above n2, 223.
[17] Re Bell [2005] QCA 151, [5].
[18] Ibid, [6].
[19] Ibid, [18].
[20] Ibid.
[21] NSW Government, What is Domestic Violence? (2016) < http://www.domesticviolence.nsw.gov.au/what-is-domestic-violence>.
[22] Brogan, above n2, 222.
[23] Re Bell [2005] QCA 151, [19].
[24] Michaela Whitbourn, ‘Rosie Batty says Victims of Domestic Violence are being let down by the Legal System’ The Sydney Morning Herald (online), 8 March 2015, < http://www.smh.com.au/national/rosie-batty-says-victims-of-domestic-violence-are-being-let-down-by-the-legal-system-20150308-13yc9g.html>.
[25] Brogan, above n2, 222.
