Student misconduct and admission to legal practice - new judicial approaches

Abstract

The recent Victorian Supreme Court decision in Re Legal Profession Act 2004; re OG, a lawyer caused a stir among educators of legal ethics. This decision, like another decision in 2007, Re Humzy-Hancock, concerns student misconduct as a relevant matter for consideration in admission proceedings. It has been recognised for some time that student misconduct is significant evidence as to the character of an applicant in admission proceedings. In order to be admitted as a legal practitioner, the court must be satisfied that the applicant is 'a.fit and proper person' to practice, which involves in-depth inquiry into that person's moral character. Re OG indicates that we must now consider student misconduct to be relevant in any admission considerations and that non-disclosure of such incidents will be grounds for a person not to be admitted. In Victoria, the legislature has now codified consideration and disclosure of 'disciplinary action' against an applicant. However, Re Humzy-Hancock demonstrates that while the courts are taking an ever stricter line on disclosure as evidence of honesty of character, this does not mean that the court will not permit the applicant to defend his or her character with regard to the prior offence. Indeed, this article contends that the decisions discussed herein demonstrate that the courts in this area are intruding further than ever into what may be considered 'issues of academic or pastoral judgment'.