Legal Ethics: Admission and the Fit and Proper Person Test

Roadmap for the Second Half of Legal Ethics

• Course Structure and Aim: The second half of the course transitions into a rules-focused curriculum, moving from general theories to the application of the Lawyers and Conveyancers Act ($2006$) and the Rules of Conduct and Client Care.
• Problem-Question Exam Focus: The final exam is heavily oriented toward problem-questions. Success requires applying historical case law to novel fact patterns to understand how "vague, vibes-based" principles are interpreted by courts.
• Lecture Schedule Overview:     - Lecture $7$ (Current): Admission to the bar and the "Fit and Proper" person test.     - Lecture $8$: Competence, Client Care, and Fees.         - Competence: Obligations to perform at a professional standard.         - Client Care: Responding to emails, terminating difficult client relationships.         - Professional Dealings: Treatment of other lawyers and workplace conduct.         - Fees: Determining "reasonable" fees and maximum charge thresholds.     - Lecture $9$: Confidentiality, Disclosure, and Privilege.         - Confidentiality: Keeping all client information secret (as seen in the Lake Pleasant case).         - Privilege: Stronger protection often attached to documents/litigation/negotiations.         - Disclosure: When a lawyer must reveal information (e.g., imminent risk of serious harm or awareness of serious crimes).     - Lecture $10$: Conflicts of Interest.         - Client-Client Conflicts: Managing competing interests within a firm (e.g., representing two different banks).         - Personal Conflicts: Relationships that compromise professional objectivity.     - Lecture $11$: Advocacy Ethics.         - Specialized rules for litigators, defense lawyers, and Crown prosecutors.         - Guest Speaker: Jesse Fenton, a Crown prosecutor from Crown Law.     - Lecture $12$: Course Review and Exam Preparation.

The Process of Admission in New Zealand

• Definition: Admission is the state authorization process verifying that an individual is qualified and fit to practice law.
• The Distinction of Roles:     - UK Model: Strict separation between Solicitors (clerk/transactional work) and Barristers (courtroom specialists).     - New Zealand Model: Lawyers are admitted as both "Barrister and Solicitor," though some may eventually specialize as barristers in chambers (e.g., Bankside or Shortland Chambers).
• Practicing Certificate:     - Even after admission, a lawyer cannot practice without a current practicing certificate.     - Cost: Approximately $\$1,900$ per year.     - Function: Funds the Law Society and regulates the right to provide legal advice or litigate.
• The Ceremony: A formal High Court event involving an oath to "truly and honestly conduct yourself," signing the roll, and appearing before a judge with a referee.

The "Fit and Proper" Character Test

• Legislative Basis: Section $55$ of the Lawyers and Conveyancers Act (LCA).
• General Nature: A highly subjective, holistic assessment of an applicant's character. It acts as a "gatekeeping" mechanism for the profession.
• Statutory Factors for Consideration (Non-exhaustive):     - Whether the person is of "good character."     - History of bankruptcy.     - Criminal convictions (nature and relevance are key).     - Engaging in legal practice without being admitted.     - Disciplinary action in other occupations (e.g., being struck off as a doctor).     - Trust account contraventions.     - Mental or physical conditions that render one unable to perform legal functions.
• Rationale for Character Policing:     - Public Protection: Ensuring the safety of vulnerable clients in private settings.     - Professional Reputation: Maintaining the "heroic ideal" that a lawyer can be trusted "to the ends of the earth" (Bolton Law Society quote).     - Misconduct Prevention: Preventing individuals from bringing the profession into disrepute.

The Legal Analytical Framework: Re Owen and Stanley

• Re Owen (High Court): Established the primary four-part framework for character assessment:     1. Forward-Looking Inquiry: The test is whether a past character defect is "entirely spent." It is not double punishment for past deeds.     2. Onus on Post-Admission Conduct: Greater scrutiny is applied to mistakes made after becoming a lawyer.     3. Circumstances of Youth: Recognition that immature errors (e.g., at age $18$ or $19$) should not necessarily bar life-long careers.     4. Holistic Review: Examining the entire history, including subsequent rehabilitation and steady employment.
• Stanley (Supreme Court): The seminal New Zealand case on admission.     - Language Update: Replaced the medieval-sounding "fundamental defect of character" with a focus on whether a conviction is "relevant to whether someone meets the standard."     - The Ruling: A $3-2$ split in the Supreme Court admitted the applicant.

Case Study: Stanley ($2020$)

• Applicant Stats: a $67$-year-old mature student.
• Offending History: $7$ driving convictions between $1978$ and $2014$, including $3$ drink-driving disqualifications. The most recent occurred after completing his law degree.
• Law Society Interview: The Wellington branch opposed admission, doubting Stanley's introspection regarding his alcohol dependency.
• Majority View (Admitted):     - Driving offenses are not "directly connected" with legal practice (unlike fraud).     - Stanley was candid and disclosed everything.     - A $7$-year gap existed since the last conviction (rehabilitation via time).
• Minority View (Chief Justice Winkelmann - Dissented):     - Multiple convictions show contempt for the law and poor judgment.     - Lack of independent medical assessment regarding alcohol recovery.     - Age factor: At $67$, the minority was less convinced by the "circumstances of youth" or potential for radical character reform.

Case Study: Re OG (Academic Misconduct)

• Context: A Victoria (Australia) case widely followed in New Zealand regarding law school cheating.
• The Facts: Applicant OG colluded with friend GL on a $15\%$ individual assignment. Both received zero marks.
• The Contrast in Candor:     - GL: Disclosed the misconduct fully in his admission letter.     - OG: Claimed the zero was due to a "misunderstanding of non-attendance" and denied plagiarism.
• The Outcome: OG was admitted but later struck off when the lie was discovered. The court ruled his lack of disclosure was the "antithesis of his obligation of candor."
• Key Takeaway: Academic misconduct is highly relevant because it involves dishonesty in a legal context.

Case Study: Brown (Prior Career Disciplinary Action)

• The Facts: A former probationary police officer (aged $19-20$). He was acquitted of criminal indecent assault charges in two jury trials.
• Employment Investigation: Despite the acquittal, a police internal investigation involving $13$ women found two counts of sexual impropriety.
• The Outcome: Brown was denied admission.
• Key Takeaway: Misconduct in a previous profession that involves contact with vulnerable people is a major red flag. Brown's continued denial of the facts during his Law Society interview demonstrated a fatal lack of candor.

Case Study: Lincoln (Aggressive Behavior)

• The Facts: A firearms advocate arrested for resisting a police officer in $2015$. He launched a harassment campaign against the officer's wife and filed vexatious legal claims.
• History: A similar aggressive incident with police occurred in $1993$.
• The Ruling: Found not fit and proper. The court identified an "enduring frailty of character."
• Analysis: The court mapped his behavior against the Rules of Conduct and Client Care, noting he would likely breach rules against using legal processes for "improper purposes" or causing "unnecessary distress."

Summary of Character Principles

• Honesty/Candor: Often more important than the original offense. Hiding a minor crime can be worse than the crime itself.
• Rehabilitation: Success depends on proving the defect is "spent."
• Relevance: Fraud and trust-account-related crimes are harder to overcome than non-legal crimes like driving offenses.
• Pattern vs. One-off: Courts are more lenient with isolated mistakes than historical patterns of behavior.