Are you a fit and proper person to be admitted to the legal profession?

Introduction

A person applying for admission to the legal profession must satisfy the court that they are a ‘fit and proper’ person at the time of their admission, as part of the admission process, to be successfully admitted to the legal profession.

Generally, whether an applicant is ‘fit and proper’ depends on the particular circumstances and facts of each case.

This article will provide an overview of the court’s role in relation to an application for admission and provide a broad overview of an applicant’s duty of candor to the court together with commentary concerning the outcome of a matter where an application was refused and the court’s general position on re-applying for admission after an application has been refused.

This article is general in nature and should not be construed as legal advice. If this article is relevant to you, you should seek independent legal advice as soon as possible. Potts Lawyers has experienced and competent litigation lawyers who offer a 20-minute obligation-free consultation to discuss your matter.

Read also: Admission to The Legal Profession: What You Should Know

 

The court’s role in determining whether a person is a fit and proper person

In the matter of Re JY[1] the Court cited previous cases which describe the Court’s role in determining whether a person is a ‘fit and proper’ person.

The Court’s role in determining who should be admitted is not punitive; it is to protect the public interest and the interests of the profession.  The question of fitness

“is not one of law to be determined by reference to previous decisions. The duty of the court is to determine in what manner the court should exercise its discretion in the particular circumstances of each case. Generalizations relating to questions of character and moral fitness… should not be treated as if they were propositions of law”.[2]

Section 35 the Legal Profession Act 2007 (Qld) (the ‘Act’) sets out the Court’s role in relation to applications for admission:

(1) The Supreme Court must hear and decide each application for admission in the way the court considers appropriate.

(2) Without limiting subsection (1), the court may—

(a) make an order admitting the applicant to the legal profession as a lawyer if the court is satisfied the applicant for admission is—

(i) eligible for admission to the legal profession under this Act; and

(ii) a fit and proper person to be admitted to the legal profession under this Act; or

(b) refuse the application if the court is not satisfied as mentioned in paragraph (a).

(3) The court’s order as mentioned in subsection (2)(a) may be made unconditionally or on conditions the court considers appropriate.

(4) In deciding the application, the court may rely on a recommendation of the board under section 39.

Despite the above, the Court has inherent jurisdiction to hear and determine admission applications for admission.

 

Suitability for admission to the legal profession

Section 31(1) of the Act only allows a person to be admitted to the legal profession if they are a ‘fit and proper’ person.

Section 31(2) of the Act states the factors that the Supreme Court must consider in deciding whether a person is a ‘fit and proper’ person:

(2) In deciding if the person is a fit and proper person to be admitted, the Supreme Court must consider—

(a) Each of the suitability matters in relation to the person to the extent a suitability matter is appropriate; and

(b) other matters that the Supreme Court considers relevant.

However, section 31(3) of the Act creates a discretion for the Supreme Court to consider a person to be ‘fit and proper’ despite a suitability matter because of the circumstances relating to the matter.

 

What are suitability matters?

Section 9(1) of the Act sets out the suitability matters for an application for admission. This article does not provide an exhaustive list of the suitability matters under section 9(1) of the Act. The most common suitability matters include:

• Whether the person is currently of good fame and character;
• Whether the person is or has been insolvent under administration;
• Whether the person has been convicted of an offence in Australia or a foreign country, and if so:
  1. The nature of the offense; and
  2. How long ago the offense was committed;
  3. The person’s age when the offense was committed.
• Whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:
  1. A relevant law;
  2. A corresponding law;
  3. A corresponding foreign law
• Whether the person
  1. Is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or
  2. Has been subject to disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt.

 

Approaching the court with good faith and candour

In the matter of Re JY, the Court also discussed and cited the importance of approaching the court with good faith and candor:

An applicant for admission must approach the Board and, in turn, the Court,

“with the utmost good faith and candour, comprehensively disclosing any matter which may reasonably be taken to bear on an assessment of fitness for practice”.

Notwithstanding that, a person guilty of a serious offense may demonstrate a change in character, a pre-requisite for admission remains

“a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice”.

Also relevant in this connection is this statement by Mahoney JA in Dawson v Law Society of New South Wales, cited with apparent approval in Livanes,

“Repentance is relevant, at least in the ordinary case, because it assists the conclusion that the applicant had left his previous standards or values and adopted more appropriate ones. Without that, his conduct in the future is unlikely to be acceptable”.[3]

 

What was the outcome in Re JY?

In Re JY, the Court decided to refuse this person’s application to the legal profession.

The Court held that:

There are encouraging signs that the applicant may have undergone a change in his attitude and behaviour. He has demonstrated a degree of commitment to the law and its values by working unpaid in a full-time role at the Aboriginal and Torres Strait Islander Legal service for eight months in 2015, until his mother’s illness intervened. In doing so, he has received useful mentoring from both Mr. O’Dea and Mr. Scott, who particularly have made clear to him the importance of the obligation of candour, and he has expressed willingness to continue to seek appropriate guidance from senior practitioners. Notwithstanding, the seriousness of the applicant’s past conduct in withholding information about his record of dishonesty and the recency of his recognition of the candour owed to the Court mean that the Court cannot presently be satisfied that he has demonstrated a change of character such that he could properly be found at this time a fit and proper person for admission as a legal practitioner.[4]

 

If a person’s application for admission to the legal profession has been refused can they re-apply at a later date?

Generally, an unsuccessful application for admission to the legal profession does not prevent an applicant from re-applying for admission in the future.

In the matter of an application by Jashneel Prakash for admission to the legal profession[5], where the applicant’s admission to the legal profession was refused, the Court held that:

The refusal of the application is of course without prejudice to the applicant’s ability to make a fresh application at a later time. We do not consider that the mere passage of time will be sufficient to allow the applicant to be admitted on a subsequent application. In our view, he needs to undertake work experience as a law clerk, under the daily supervision of an experienced legal practitioner, for a period of time, and to have the benefit of mentoring and supervision by that legal practitioner in that context – that is, in the context of undertaking legal work. There are two important aspects to this: the development of insight and understanding of the expectations of a legal practitioner by the applicant; and the availability of informed evidence from the supervisor to support a finding by the Court as to the applicant’s suitability. His subsequent application can then be supported by evidence from that legal practitioner who hopefully will be able to express a view that the Court can rely upon in relation to his insight and judgment and his understanding of the standards expected of a legal practitioner. We are not persuaded that a further adjournment of the present application is appropriate in the circumstances.[6]

 

Conclusion

Whether an applicant for an application to the legal profession is a ‘fit and proper’ person depends on the particular circumstances and facts of each case, as well as the requirements for admission.

It is clear that an applicant’s admission application should not be taken lightly or treated merely as a procedural aspect. It is still a court application that should be treated with the utmost seriousness and care.

It is critically important that if you are an applicant in this position you obtain independent legal advice as soon as possible. We offer a 20-minute obligation-free consultation to discuss your matter.

[1] [2016] QCA 324.

[2] Ibid at [20].

[3] Ibid at [25].

[4] Ibid at [27].

[5] [2022] QCA 224.

[6] Ibid at [35].