458 #7 Legal Ethics: Admission and the Fit and Proper Person Test

Second Half Course Overview and Objectives

The second half of the Legal Ethics course shifts focus toward the specific rules and practical applications of the Lawyers and Conveyancers Act ($LCA$) and the Rules of Conduct and Client Care. Unlike the first half, which dealt with more theoretical foundations, this section is highly procedural and problem-question oriented, simulating the types of issues expected on the final exam.

Instructional Strategy for Exam Preparation

• Problem-Question Emphasis: The final exam is anticipated to be densely loaded with problem questions. Success in this format requires transitioning from theoretical understanding to the practical application of the $LCA$ and specific rules of conduct.

• Subjectivity in Ethics: Many ethical determinations, such as defining a "fit and proper person" or identifying misconduct, are not rigid but "vibes-based." These concepts are subjective and open to interpretation, shifting over time as societal standards evolve.

• Methodology: To master these subjectivities, the course will focus on extensive case law. By studying how courts have applied vague principles to novel fact patterns, students can hone their intuitive sense for legal ethics.

Roadmap: Lectures $8$ Through $12$

The subsequent five weeks will cover the following key substantive areas:

1. Lecture $8$: Competence, Client Care, and Professional Dealings: Covering a lawyer’s obligation to be competent, managing client relations (response times, terminating difficult clients), workplace professional standards (treatment of colleagues), and the regulation of legal fees (addressing whether there is a maximum allowable fee).

2. Lecture $9$: Confidentiality, Disclosure, and Privilege:

   • Confidentiality: The obligation to keep information learned as a lawyer private, including exceptions (e.g., imminent risk of serious harm).

   • Privilege: A narrower but stronger protection for documents and communications, particularly regarding litigation and settlement negotiations.

   • Disclosure: The flip side of confidentiality, involving mandatory reports to clients or authorities (e.g., knowledge of a future serious crime).

3. Lecture $10$: Conflicts of Interest: Covering conflict between different clients (especially in small markets like New Zealand) and personal conflicts of interest that might disqualify a lawyer from a case.

4. Lecture $11$: Advocacy Ethics: Rules governing behavior inside the courtroom. Special focus will be provided by guest speaker Jesse Fenton, a Crown Prosecutor from Crown Law, regarding the unique duties of prosecutors (who must be "best practice litigants") and defense lawyers.

5. Lecture $12$: Revision and Exam Preparation: A comprehensive review of the course material.

The Admission Process for Barristers and Solicitors

In New Zealand, completing a Law Degree ($LLB$) does not automatically confer the title of lawyer. There are several "final bosses" or hurdles before an individual is authorized by the state to practice law.

The Distinction Between Barristers and Solicitors

• Orthodox UK Model: Traditionally, the roles are separate. Barristers speak in court (litigation), while solicitors handle transactional work and direct client interaction. Solicitors usually must "hand off" complex litigation to barristers.

• New Zealand Fused Model: New Zealand does not have a strict artificial line. Individuals are admitted to the High Court as both a "Barrister and Solicitor."

• Modern Context: While most lawyers function as both, specialist litigation centers (e.g., Bankside Chambers or Shortland Chambers) still exist for those focusing exclusively on a barrister's role.

Practicing Certificates

• Admission: Once admitted to the High Court, the status is permanent unless the individual is "struck off" for misconduct.

• The Certificate: To actually practice (write legal advice or litigate), a lawyer must obtain an annual practicing certificate.

• Fees: This certificate serves as a primary funding mechanism for the Law Society. The fee is approximately $1,900NZD$ per year.

The "Fit and Proper" Person Test

While the admission process involves many procedural requirements (forms, referees, etc.), the core substantive check is a character assessment known as the "fit and proper" test.

Purpose and Ethics

• Gatekeeping: This test is the primary way the legal profession governs itself by controlling who enters.

• Public Protection: Because the Law Society cannot be in every room during lawyer-client interactions, they must be strict at the entry point to ensure that vulnerable clients (e.g., in family or criminal law) are protected from dishonest or unstable characters.

• Vibes and Subjectivity: The term "fit and proper" is described as a medieval, archaic phrase. It is not defined by a rigid rubric but by a holistic, subjective, and moral judgment made by the Law Society and the courts.

Legislative Factors: Section $55$ of the LCA

Under Section $55$ of the Lawyers and Conveyancers Act, the court can consider an exhaustive but non-prescriptive list of factors to determine if an applicant is fit and proper:

• Good character.

• Bankruptcy status.

• Previous criminal convictions (noting that the nature and relevance of the offense matter more than the conviction itself).

• Attempts to practice law without admission or a certificate.

• Unresolved complaints or disciplinary actions in other countries or other occupations (e.g., being struck off as a doctor).

• Contravention of laws regarding trust accounts.

• Physical or mental conditions that render an individual unable to perform the functions of a lawyer (though this is rarely invoked due to potential discrimination concerns).

The Analytical Framework: Re Owen and Stanley

Two seminal cases establish the framework for analyzing character in admission.

Re Owen (High Court)

In Re Owen, the court established a four-part test for applicants with prior issues:

1. Forward-Looking Inquiry: The goal is not to punish past conduct (avoiding "double jeopardy") but to see if that conduct reveals a character flaw that makes the person currently unfit. The question is whether the "defect of character" indicated by a conviction is now "entirely spent."

2. Professional Onus: Courts tend to be more lenient toward errors made before admission compared to professional mistakes made after admission.

3. Circumstances of Youth: Explicit recognition is given to the immaturity of youth. Mistakes made at $18$ or $19$ are weighted differently than those made in mature adulthood.

4. Holistic Circumstances/Balancing Test: The court looks at the entire life of the applicant, including subsequent rehabilitation and positive contributions.

Facts of Re Owen: Owen was $30$ and had convictions for burglary, "cultivating cannabis," and driving offenses related to drug and alcohol addiction. He proved he had turned his life around and was found fit and proper.

Stanley v New Zealand Law Society (Supreme Court)

This is the most important contemporary case on admission. It confirmed the Re Owen framework but updated the language.

• Removal of "Defect of Character": The Supreme Court moved away from the phrase "fundamental defect of character," preferring to focus on whether the conviction remains "relevant" to the current standards of the profession.

• Facts of Stanley: The applicant was a $67$-year-old mature student with $7$ criminal convictions for driving, including $3$ drink-driving disqualifications between $1978$ and $2014$. His most recent offense occurred after he completed his law degree.

• The Decision ($3$-$2$ Split):

  • Majority: Admitted Stanley. They reasoned the offending was not directly connected to the practice of law (no dishonesty), he had been candid about his history, and several years had passed since the last offense without further issue.

  • Minority (Kalman): Dissenting. They argued that repeated drink-driving indicated a "contempt for the law" or an unresolved drinking problem that would affect professional judgment. They noted his age ($67$) suggested his character was less likely to change compared to a youth.

Case Studies in Admission Denials

Re OG: Academic Misconduct

Coming from the Supreme Court of Victoria, this case involves two students, OG and GL, who colluded on a $15\%$ individual assignment.

• GL's Approach: Admitted the misconduct, requested penance, and was candid.

• OG's Approach: Claimed the zero grade was a result of non-attendance, denied collusion, and eventually tried to blame GL (claiming GL hacked his computer).

• Outcome: OG was admitted but subsequently struck off because he had lied to the Law Society.

• Takeaway: The "antithesis of candor" is the biggest risk to admission. Academic misconduct is easily tracked and usually involves dishonesty, which is a red flag for the court.

Brown: Disciplinary Action in Prior Career

• Facts: Brown, aged $27$, was a former police officer who was accused of sexual impropriety and indecent assault involving women.

• Criminal vs. Employment: He was acquitted in two criminal jury trials. However, a police employment investigation involving $13$ women upheld allegations of inappropriate sexual relations.

• Assessment: The Law Society and Court viewed his police background as highly relevant because it involved contact with vulnerable people. Brown's lack of candor (trying to avoid disclosing the investigation) and continuing to deny evidence in interviews led to his rejection as fit and proper.

Lincoln: Patterns of Aggression

• Facts: Lincoln was a firearms advocate who became aggressive and resisted police when they tried to revoke his license in $2015$. He launched a campaign of legal harassment and Facebook abuse against a police officer and the officer's wife.

• Historical Pattern: It was discovered that he had a near-identical aggressive incident involving police in $1993$.

• Legal Reasoning: The court ruled that he had an "enduring frailty of character." His behavior (using legal processes for improper purposes like harassment) directly violated the Rules of Conduct and Client Care that a lawyer is expected to follow.

Ethics Committee Discussion: Market Solutions vs. Gatekeeping

During class discussion, a "market solution" to character policing was proposed:

• The Argument: Rather than gatekeeping at the start, let the market decide. If a lawyer is dishonest or a bad person, that information will spread, and clients will stop using them.

• The Rebuttal: Most people in the class ($Option~1$) supported character tests because legal clients are often highly vulnerable. The Law Society has a duty to ensure that once a person is in a room with a lawyer, they are safe, as real-time monitoring of all lawyers is impossible.

Summary of Key Principles for Admission

• Rehabilitation: Courts are moving toward a rehabilitative approach; past crimes are not automatic disqualifiers if enough time has passed and changes are proven.

• Nature of Offense: Crimes involving dishonesty (fraud, theft) are treated more strictly than those like cannabis use or driving offenses.

• Disclosure/Candor: Almost every case of rejection is compounded by a lack of candor. Being upfront about one's past is often the only way to prove a change in character.

• Holistic Evaluation: Admission is an objective and overall assessment involving prior conduct, character witnesses, family support, and medical/treatment evidence if applicable.

Next Lecture: Competence, Client Care, Professional Standards, and Fees.