REGULATORY FRAMEWORK

Question 1

LAW AS A PROFESSION

Answer 1

Although no single definition of a profession attracts universal acceptance, three core attributes commonly surface: special skill and learning, public service as the principal goal; and autonomy or self-regulation.

Question 2

WHY REGULATE THE LEGAL PROFESSION

Answer 2

• The legal profession enjoys a monopoly.
• Ensures that the public is protected.

Question 3

OBJECTIVES OF LEGAL PROFESSION UNIFORM APPLICATION ACT 2014 (VIC)

Answer 3

› Section 3 – Objectives
The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by—
a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and
b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and
c) enhancing the protection of clients of law practices and the protection of the public generally; and
d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and
e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and
f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained

Question 4

UNIFORM LAW LEGISLATION IN WA

Answer 4

• Legal Profession Uniform Law Application Act 2014 (Vic), Schedule 1 – Legal Profession Uniform Law
• Legal Profession Uniform Law Application Act 2022 (WA) (‘Application Act’)
  › Legal Profession Uniform Law Application Regulations 2022 (WA)
  › Legal Profession Uniform Law Application (Accreditation) Rules 2022 (WA)
• Legal Profession Uniform Law Application Act 2022 (WA)

Question 5

SECTION 6 OF LEGAL PROFESSION UNFORM APPLICATION ACT 2022 (WA)

Answer 5

Section 6 – Application of Uniform Law as law of the State
1) In this section – Legal Profession Uniform Law means the Legal Profession Uniform Law set out in the Legal Profession Uniform Law Application Act 2014 (Victoria) Schedule 1 as in force on 21 June 2021 …
2) The Legal Profession Uniform Law —
(a) applies as a law of the State; and
(b) as so applying, may be referred to as the Legal Profession Uniform Law (WA); and
(c) so applies as if it were an Act.

Question 6

NEEDS FOR ADMISSION

Answer 6

• Academic Qualifications
  › Bachelor of Laws
  › Juris doctor
• PLT
  › Graduate diploma in legal practice
   Course work
   Workplace experience – 75 days in WA.
  › articles of clerkship
• Admission as a barrister and solicitor of the Supreme Court of WA
• Continuing professional development.

Question 7

PRE-REQUISITES FOR COMPLAINCE CERTIFICATES

Answer 7

• Legal Profession Uniform Law (WA) Section 17 – Prerequisites for compliance certificates
  1) The prerequisites for the issue of a compliance certificate in respect of a person are that he or she—
  (a) has attained the academic qualifications specified under the Admission Rules for the purposes of this section (the specified academic qualifications prerequisite); and
  (b) has satisfactorily completed the practical legal training requirements specified in the Admission Rules for the purposes of this section (the specified practical legal training prerequisite); and
  (c) is a fit and proper person to be admitted to the Australian legal profession.
  2) In considering whether a person is a fit and proper person to be admitted to the Australian legal profession—
  (a) the designated local regulatory authority may have regard to any matter relevant to the person’s eligibility or suitability for admission, however the matter comes to its attention; and
  (b) the designated local regulatory authority must have regard to the matters specified in the Admission Rules for the purposes of this section

Question 8

FIT AND PROPER PERSON

Answer 8

• SCWA relies on advice of LPB.
• Onus is on person to est. fitness.
• Frugtniet v Board of Examiners [2002] VSC 140 per Pagone J:
  > …At the heart of all of those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self-interest or embarrassment….
  > …The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self-evident and essential…
  › …Revealing more than might strictly be necessary counts in favour of an applicant …

Question 9

CATEGORIES OF UNIFORM RULES

Answer 9

• Section 420 – Categories of Uniform Rules
  (1) The Uniform Rules may contain provisions designated respectively as—
  (a) Admission Rules; and
  (b) Legal Practice Rules; and
  (c) Legal Profession Conduct Rules; and
  (d) Continuing Professional Development Rules.
  2) Uniform Rules not so designated may be known as general Uniform Rules or by another designation specified in the Rules

Question 10

ADMISSION RULES

Answer 10

› Legal Profession Uniform Admission Rules 2015

Question 11

LEGAL PROFESSION CONDUCT RULES

Answer 11

› Legal Profession Uniform Conduct (Barristers) Rules 2015
› Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015

Question 12

CONTINUING PROFESSIONAL DEVELOPMENT RULES

Answer 12

› Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015
› Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015

Question 13

BEING A FIT AND PROPER PERSON

Answer 13

• Legal Profession Complaints Committee v Bachmann [2011] WASC 309 the Court said at [46]:
  › ‘Fitness to practise law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges. Fitness to practice is to be decided at the time of the hearing, not as at the time the relevant conduct was entered into.’

Question 14

In the matter of an application by RBI for admission to the Legal Profession [2022] QCA 156 - FACTS

Answer 14

› Applicant applied
› Satisfied requirements (i.e. PLT and degree).
› Disclosed Suitability matters:
 Traffic offences
 Summary offences commited
 2 charges of assault in circumstances of aggravation.
 Police protection orders against the applicant (1 still in place at time of hearing).
 Charge in respect to possession of cannabis.
› Affidavit she disclosed she was remorseful and had recovered from a personality disorder that led to these decisions.
› Application board asked her to provide a report from a psychiatrist in relation to her personality problem.
 Failed to comply.
 Provided a letter from GP that stated she didn’t have any mental health concerns currently.
› Board then issued notice for her to undergo assessment by a psychiatrist.
 Refused to comply.
› Subsequent affidavit, she discloses she never received treatment for a personality problem and that it was not a diagnosed personality disorder. She was merely referring to something she was feeling at that point in time.

Question 15

In the matter of an application by RBI for admission to the Legal Profession [2022] QCA 156 - ISSUE AND FINDING

Answer 15

• Issue:
  › At present, is the applicant a fit and proper person to be admitted?
• Finding: At [27]:
  › ‘the applicant’s application for admission as a lawyer must be dismissed because this court cannot feel confident that she is, at present, a fit and proper person to be admitted. … the cumulative effect of all these matters is one for concern’.
  › At [28]: ‘Her affidavits, and correspondence with the Board, show inaccuracy and inconsistency in her approach, and an inability to deal in a mature, insightful or rational way with the issues her behaviour raises’.

Question 16

In de Braekt and Legal Practice Board of Western Australia [2019] WASAT 44 - FACTS

Answer 16

› Admitted 2003. Remove from roll in 2013.
› 2018 reapplied.
 LPB declined to issue a compliance certificate.
› Looked at professional misconduct that led to her being struck off in the first place.
 Included misleading magistrate course, made allegations of bias’ to a magistrate and found not basis for this, offensive and discourteous behaviour to police officers and to a court security officer.
 Applicant was also found to have made several false or without foundation statements in proceedings she was involved in including proceedings brought against her (including in a proceding against security guard she was discourteous towards).
* This was following the time she had been struck off.
 Also, after struck off she had committed several offences
* Using unlicenced vehicle 4 times
* Not authority to drive twice.
* Speeding infringement
› She had started seeing a psychiatrist in 2017 to help with matters that had contributed to her behaviour.
 Doctor provided evidence that she was capable, and she had made progress.

Question 17

In de Braekt and Legal Practice Board of Western Australia [2019] WASAT 44 - ISSUE AND FINDING

Answer 17

• Issue:
  › At present, is the applicant a fit and proper person to be admitted?
• Finding:
  › At [45]: Martin CJ said in Stokes: An applicant who has been previously struck from the roll must bear a much heavier and distinctly different onus to that borne by an applicant seeking admission for the first time. In the case of an applicant for readmission, the applicant carries the onus of proving that there is no significant prospect of repetition of the conduct of the kind which resulted in the removal of his or her name from the roll - see Gregory v Queensland Law Society Inc [2002] 2 Qd R 583 at [18].
  › At [47]: Ultimately, however, the issue whether the applicant is a fit and proper person to be admitted to legal practice; Dixon v Legal Practice Board of Western Australia [2012] WASC 79 (Dixon) (Full Bench). The conclusion that there is no significant risk of recurrence of disqualifying conduct is a necessary condition for readmission, but it is not a sufficient condition.
  › At [172]: The Tribunal has had regard to the evidence of Dr Skerritt. However, in light of the limitations on Dr Skerritt’s evidence and the other matters identified above, the Tribunal considers that there is a significant risk that the conduct which resulted in Ms in de Braekt’s name being removed from the Roll of Practitioners will recur, if she was admitted.
  › At [173]: The conclusion that there is a significant risk that the disqualifying conduct will recur, of itself, leads the Tribunal to conclude that Ms in de Braekt is not a fit and proper person to be admitted.
• Additional matters which the Tribunal considered that suggested that the applicant was not a fit and proper person to be admitted:
  › At [154]: Ms in de Braekt’s conduct did not demonstrate any remorse.
  › At [155]: The Kanapathy Orders had not been complied with, as at the date of the hearing.
   (Kanapathy was the security guard)

Question 18

Garber and Legal Practice Board of Western Australia [2018] WASAT 133 - FACTS

Answer 18

› LPB not satisfied they were a fit and proper person to be admitted
 Indiscretion of applicant engaged in prior to moving to Australia/WA, and some business conduct he engaged in once he arrived in Australia.
› Conduct:
 1984 – commenced practice in USA. Disbarred in 1991 for 13 counts of professional misconduct
* Bad faith, dishonesty and trust account violation
 Moved to Aus in 1999. In 2000 a warrant issued by a US district court for his arrest with respect to some embezzlement charges.
* Application for extradition was heard in Perth magistrates court. Ultimately dismissed because it didn’t meet relative legislative requirements.
 2010 fair work ombudsman instituted proceedings against a company that the applicant was the sole director and secretary of. Failed to pay 2 employees salaries.
* Court ordered wound up, had to pay penalties sum to Commonwealth consolidated revenue fund.
 Also noted a file note from a practitioner who had engaged with him during his workplace experience – practitioner noted concern about applicants ethical attitude.
› Applicant wanted to argue his Californian disbarrement should be given little consideration because it occurred over 20 years ago in a different jurisdiction.
 Also mentioned completed community service and working with numerous practitioners.
 Emphasised remorse.

Question 19

Garber and Legal Practice Board of Western Australia [2018] WASAT 133 - ISSUE AND FINDINGS

Answer 19

• Issue:
  › At present, is the applicant a fit and proper person to be admitted?
• Finding:
  › At [125]-[127]: [T]he Tribunal considers that he carries an onus of proving there is no significant prospect of repetition of the conduct of the kind which resulted in the removal of his name from the roll. … Unfortunately Mr Garber has given several different explanations for his conduct which resulted in his disbarment. This leads the Tribunal to conclude that Mr Garber does not have insight into the underlying misconduct, which in turn indicates to the Tribunal that there is some likelihood of a repetition of that misconduct.
  › At [139]: Mr Garber acknowledges that he failed to participate in the Fair Work proceedings in … but denied that he would exhibit similar conduct should he be faced with any investigation into his professional conduct in the future
  › At [141]: What is also of significance is the manner in which Mr Garber dealt with the Board. As we have already said, candour and frankness are necessary qualities to be a fit and proper person for admission.
  › At [157]: The character references indicate undoubtedly that Mr Garber has made a valuable contribution to the community. … In the light of the other findings of the Tribunal set out above, the Tribunal does not consider that those references on their own can justify a finding that Mr Garber is of good character.