Describe about the Australian Legal System of Law Firms.
The fact that is briefed by Hans Alabout, an Occupational therapist, discloses many important elements that are to be taken into consideration while making the admission. From the facts that are provided by Hans, it is evident that he was working in the rehabilitative unit of a hospital in the post of an Occupational Therapist. He was found to be guilty of misconduct before the Board of Professional Registration for touching female teenage patients inappropriately for four times in spate occasions. The allegation against Hans was for fondling the breasts of one female patient and touching the vaginal region and fondling of breasts of three other patients. For the said activity Hans lost his job as an occupational therapist. Now, he has completed the JD and PLT degree. He also wants to take admission as a legal practitioner. Now, our client Hans wants to know the admission procedure in Victoria.
From the discussion of the brief facts of the case, there lie several legal issues. The primary legal issue is that whether Hans would be able to get admission as a legal practitioner despite his past records of professional misconduct[1]. The other issues that are involved whether the previous professional misconduct by Hans would serve as any barrier to his endeavor of practicing as a legal practitioner.
The Legal Profession Act of 2007 through section 30 discloses the eligibility rules for the admission to the legal profession within the Legal Profession Act of 2007. Section through its first subsection provides that any person is considered as eligible for getting admission in the law profession only if such person is a natural person aging 18 years and above if he has attained the academic qualifications that are approved and the academic qualifications that are corresponding. Such person may be eligible for admission as a legal profession if that person has completed satisfactorily the requirements of practical training of law that is approved or the requirements of the legal training that are corresponding[2].
The Legal Profession Act of 2007 through Section 31 discloses the suitability for the purpose of admission as a legal practitioner. The Section in its first subsection discloses that any person is considered suitable for getting admission in the law profession only if such person is a proper and fit person for getting such admission. The Section through its second subsection discloses that for making the decision regarding the fitness of any person for admission in the law profession, the Supreme Court must take into consideration every matter of suitability that is appropriate to the person in question[3]. The Section in its third subsection states that the Supreme Court may consider any person to be proper and fit to get admitted in the law profession despite suitability matter as a result of the circumstances that is relating to that matter.
Section 26 of the Legal Profession Act of 2007 states the rules that are applied on the associates who are either convicted or disqualified persons. The Section in its first subsection makes the express statement that the law practice should not have any lay associate whom a legal practitioner or principle related to legal practice knows to be a person who is disqualified or a person who has been under conviction for any serious offense. Any person who has been convicted or disqualified, may on application to the society of law, get the approval to legal practice. Such approval must be subject to certain conditions that are stated. The society of law may refuse an application for approval to legal practice or may also impose certain conditions for such approval. For the doing the same, the society of law must serve the applicant such notice of information that is related to its decision to refuse the said application or impose certain conditions of approval[4]. The applicant may also make an application to the Queensland Civil and Administrative Tribunal for the review of such decision. Section 26 of the Legal Profession Act of 2007, through its subsection five, also mentions that any person who is disqualified or convicted of any serious offense must never seek to be a lay associate of a legal practice unless he or she first informs the law practice of such conviction or disqualification[5].
Section 9 of the Legal Profession Act of 2007 deals with the suitability matters. In relation to any natural person, several factors are taken into consideration for a suitability matter. The first factor is whether any person is in the present time of good character and good fame. The second element is that whether any person has been or is insolvent that is under administration[6]. The third element is that whether such person has been convicted of any offence either in Australia or in any other country and if that happens then the nature of such offence, the time when the offence was committed and the age of the person when such offense was committed, must be taken into consideration. The other element of suitability is whether any person is presently subject to any complaint, that is not resolved, or any investigation, or charge under any law that is relevant, or any corresponding law or any foreign law that is corresponding. The other element of suitability is whether any person is subject to any disciplinary action in any other profession of Australia or any foreign country.
Section 32 of the Legal Profession Act of 2007 declares its rules of consideration of suitability. The section makes its application in case any person makes the consideration of any matter that may affect adversely to his assessment as a proper and fit person to get admitted in the law profession. The person may make an application in the appropriate format to the Legal Practitioners Admissions Board, for making a declaration that the his previous conduct would not adversely affect to the Board’s assessment in relation to the fitness of that person to get admitted in the law profession[7]. On getting the application, the Board may either make the declaration as required, or refuse to make the declaration, or refer the application to a tribunal for getting a direction in case the Board considers that such direction is appropriate[8]. In case the Board refuses to make the declaration, it must render the applicant a notice regarding such refusal. The applicant, if wishes, may appeal before the Supreme Court against such refusal within the expiry of twenty-eight days from the day the notice is delivered to the applicant[9].
Section 33 of the Legal Profession Act of 2007, deals with the involvement of the Supreme Court and the tribunal in deciding the fitness of the persons to be admitted to the law profession. In the first subsection of Section 33, it is provided that if an application is referred to the said tribunal, then the tribunal may render any direction that it considers as appropriate.[10]
Section 34 of the Legal Profession Act of 2007, deals expressly with the application that is to be made to get admitted in the law profession. In the first subsection of the said section, it is mentioned that any person may make an application to the Supreme Court for being admitted to the law profession under the Legal Profession Act of 2007[11]. Such application must be done in accordance to the rules of admission and form that is approved.
In the case of Frugtniet v Board of Examiners [2002] VSC 140[12], the Court rendered the meaning and interpretation of proper and fit person, who is to be admitted in the law profession. The Court by the phrase ‘proper and fit’ meant that, any person must possess those qualifications that are required in making the discharge of the responsibilities of being a solicitor or a barrister. In the article named “ADMISSION AND PRACTICE REQUIREMENTS FOR LEGAL PRACTITIONERS”, the basic and the primary requirement that is essential for practicing as a legal practitioner is having the required degree of law[13].
In the case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321[14], the Court held that a legal practitioner after getting in the practice, must make the assumption of his or her duties towards the Court or towards the fellow practitioners and clients.
In the case of Incorporated Law Institute of NSW v Meagher (1909) 9 CLR 655[15], the Court held that the heart of the duties of any legal practitioner is to make the commitment to honesty irrespective of embarrassment and self interest.
In the case of New South Wales Bar v Murphy (2002) 55 NSWLR 23[16], the Court held that the administration of justice in any community, is governed by the force of law and it also depends on the working of the legal practitioners honestly, who may be relied to be meeting the higher standards of ethical behavior and honesty[17].
In the case of New South Wales Bar Association v Einfeld (2009) 259 ALR 278[18], the Court held that a legal practitioner is the executor and daily minister of the administration of justice while rendering the advice to their clients or certifying documents or making the presentation in the courts. In the journal named “Skills for Lawyers”[19], the basic requirements that are needed for a person who seek to become a legal practitioner are provided. In that journal, the things that are to be performed by a lawyer or legal practitioner are given in details.
The advice that is to be provided to Hans is that he must make any application under Section 32 of the Legal Profession Act of 2007 by stating the fact of his disqualification while he was working as an occupational therapist in the appropriate form to the Legal Practitioners Admissions Board. In the application, Hans must disclose all the materials facts that are associated with his disqualification. The application must be for getting the declaration from the Board that he is fit to be admitted in the legal profession[20]. The Board either may grant Hans such declaration or may refuse to grant such declaration. In case the Board refuses to grant such declaration, Hans may make an appeal to the Supreme Court within the expiry of 28 days from the date of such refusal by the Board[21].
Reference List
“Legal profession bill” [2007] legal profession bill
Ashley, louise, and laura empson. “differentiation and discrimination: understanding social class and social exclusion in leading law firms.”human relations 66.2 (2013): 219-244.
Australian broadcasting tribunal v bond (1990) 170 clr 321
Elkington, annabel [2010] skills of lawyers <https://apac-tc.hosted.exlibrisgroup.com/primo_library/libweb/action/search.do?ct=next+page&pag=nxt&indx=1&pagenumbercomingfrom=1&indx=1&fn=search&dscnt=1&scp.scps=scope%3a(law)&tb=t&vid=bond&mode=basic&ct=search&srt=rank&tab=default_tab&institute=&dum=true&vl(freetext0)=electronic%20sources&fromlogin=true&dstmp=1468299401214>
Flood, john. “institutional bridging: how large law firms engage in globalization.” boston college law review 54.1 (2013): 2014-9.
Frugtniet v board of examiners [2002] vsc 140
Gillers, stephen. “how to make rules for lawyers: the professional responsibility of the legal profession.” pepperdine law review 40 (2013): 365.
Hazard. Law of lawyering. Wolters kluwer law & business, 2014.
Incorporated law institute of nsw v meagher (1909) 9 clr 655
Legal profession act 2007 – sect 26 associates who are disqualified or convicted persons(2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s26.h
Legal profession act 2007 – sect 30 eligibility for admission to the legal profession under this act (2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s30.html>
Legal profession act 2007 – sect 31 suitability for admission (2016) austlii.edu.au https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s31.html
Legal profession act 2007 – sect 32 early consideration of suitability (2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s32.html>
Legal profession act 2007 – sect 33 involvement of tribunal and supreme court (2016) austlii.edu.au https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s33.html
Legal profession act 2007 – sect 34 application for admission to the legal profession(2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s34.html>
Legal profession act 2007 – sect 35 role of supreme court relating to application for admission (2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s35.html>
Legal profession act 2007 – sect 39 role of the board relating to application for admission (2016) austlii.edu.au https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s39.html
Legal profession act 2007 – sect 9 suitability matters (2016) austlii.edu.au https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s9.html
Mcginnis, john o., and russell g. Pearce. “the great disruption: how machine intelligence will transform the role of lawyers in the delivery of legal services.” (2014).
Mcginnis, john o., and russell g. Pearce. “the great disruption: how machine intelligence will transform the role of lawyers in the delivery of legal services.” (2014).
Mclean, scott, “evidence in legal profession disciplinary hearings” (2009) 28 changing the lawyers paradigm
Moliterno, james e. “ethics 20/20 successfully achieved its mission: it protected, preserved, and maintained.” akron l. Rev. 47 (2014): 149.
New south wales bar association v einfeld (2009) 259 alr 278
New south wales bar v murphy (2002) 55 nswlr 23
Pont, g e dal, “admission and practice requirements for legal practitioners” [2015] admission and practice requirements for legal practitioners
Rhode, deborah l. “legal education: rethinking the problem, reimagining the reforms.” pepp. L. Rev. 40 (2012): 437.
[1] hazard. Law of lawyering. Wolters kluwer law & business, 2014.
[2] legal profession act 2007 – sect 30 eligibility for admission to the legal profession under this act (2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s30.html>
[3] legal profession act 2007 – sect 31 suitability for admission (2016) austlii.edu.au https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s31.html
[4] legal profession act 2007 – sect 26 associates who are disqualified or convicted persons(2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s26.h
[5] “legal profession bill” [2007] legal profession bill
[6] legal profession act 2007 – sect 9 suitability matters (2016) austlii.edu.au https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s9.html
[7] legal profession act 2007 – sect 32 early consideration of suitability (2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s32.html>
[8] mcginnis, john o., and russell g. Pearce. “the great disruption: how machine intelligence will transform the role of lawyers in the delivery of legal services.” (2014).
[9] mclean, scott, “evidence in legal profession disciplinary hearings” (2009) 28 changing the lawyers paradigm
[10] mcginnis, john o., and russell g. Pearce. “the great disruption: how machine intelligence will transform the role of lawyers in the delivery of legal services.” (2014).
[11] legal profession act 2007 – sect 34 application for admission to the legal profession(2016) austlii.edu.au <https://www.austlii.edu.au/au/legis/qld/consol_act/lpa2007179/s34.html>
[12] frugtniet v board of examiners [2002] vsc 140
[13] pont, g e dal, “admission and practice requirements for legal practitioners” [2015] admission and practice requirements for legal practitioners
[14] australian broadcasting tribunal v bond (1990) 170 clr 321
[15] incorporated law institute of nsw v meagher (1909) 9 clr 655
[16] new south wales bar v murphy (2002) 55 nswlr 23
[17] flood, john. “institutional bridging: how large law firms engage in globalization.” boston college law review 54.1 (2013): 2014-9.
[18] new south wales bar association v einfeld (2009) 259 alr 278
[19] elkington, annabel [2010] skills of lawyers <https://apac-tc.hosted.exlibrisgroup.com/primo_library/libweb/action/search.do?ct=next+page&pag=nxt&indx=1&pagenumbercomingfrom=1&indx=1&fn=search&dscnt=1&scp.scps=scope%3a(law)&tb=t&vid=bond&mode=basic&ct=search&srt=rank&tab=default_tab&institute=&dum=true&vl(freetext0)=electronic%20sources&fromlogin=true&dstmp=1468299401214>
[20] ashley, louise, and laura empson. “differentiation and discrimination: understanding social class and social exclusion in leading law firms.”human relations 66.2 (2013): 219-244.
[21] gillers, stephen. “how to make rules for lawyers: the professional responsibility of the legal profession.” pepperdine law review 40 (2013): 365.
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