21 January 2021
Ethics Check for Lawyers Series - Criminal convictions and the practice of law
Every year a certain number of solicitors find themselves on the wrong side of the criminal law, charged with offences including drug possession, drink driving or common assault. Not surprisingly, being convicted of a criminal offence can impact upon a solicitor’s right to practice and to remain on the roll. In this bulletin we explore disclosure obligations and strike off as a result of criminal convictions.
Criminal charges and convictions – disclosure requirements
Solicitors must notify the Law Society in writing within 7 days if they have been charged with a ‘serious offence’ or a tax offence. Solicitors must also notify the Law Society in writing within 7 days if they have been ‘convicted’ of a summary offence or a ‘serious offence’ or a tax offence.
The term ‘conviction’ includes a finding of guilt, or the acceptance of a guilty plea by the court whether or not a conviction is recorded.
Convictions for serious offences and tax offences are ‘Automatic Show Cause Events’ which means that solicitors must not only notify the Law Society within 7 days, but must also provide a written statement within 28 days explaining why, despite the show cause event, they consider themselves to be a fit and proper person to hold a practising certificate.
Failure to disclose may constitute professional misconduct or unsatisfactory professional conduct and can lead to refusal to grant the solicitor a practising certificate or cancellation or suspension.
What happens after disclosure to the Law Society is made?
The Council of the Law Society will investigate the matter and consider whether any discretionary conditions need to be imposed on the solicitor’s right to practice and whether to bring proceedings seeking removal of the solicitor’s name from the roll.
Striking off the roll as a result of criminal convictions
The Council of the Law Society can bring an application to the Supreme Court for removal of the solicitor’s name from the roll in the Court’s inherent supervisory jurisdiction.
A good example of such a case is Council of the Law Society v Parente  NSWCA33 (27 February 2019) which involved a solicitor who was ultimately struck-off after his car was searched, and a plastic bag containing 100 MDMA tablets, a litre bottle containing GBL, and $3,000.00 in $50.00 notes were found. A later search of his home also uncovered more drugs, and he was charged with a number of counts of supplying prohibited drugs to which he pleaded guilty.
The solicitor’s sentencing judge accepted that the solicitor was “hopelessly addicted to ice and other drugs”. However, despite his genuine remorse, no previous convictions, excellent prior character, excellent prospects of rehabilitation and unlikelihood of reoffending the seriousness of the offending led to a sentence of 4 years’ imprisonment with a non-parole period of 2 years.
In seeking an order to remove his name from the roll, the Council of the Law Society bore the onus of proof as to whether the solicitor was fit and proper to remain on the roll. It has been held that an order striking a solicitor off the roll should only be made where the solicitor is at least indefinitely if not permanently unfit to practice. The jurisdiction is protective not punitive. Protection in this context means protection of the public and other members of the profession who may deal with the solicitor and protection of the reputation of the profession and the public’s confidence in it.
The Court ultimately accepted the submission that the solicitor was not a fit and proper person to remain on the roll and held that there would be incongruity in accepting that a person still the subject of a 4 year sentence of imprisonment, albeit on parole, could be described as meeting the highest standards of integrity.
This flowed from the application of the principles explained in New South Wales Bar Association v Cummins  NSWCA 284:
The Legal Profession requires the highest standards of integrity;
Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers;
Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues;
The judiciary must have confidence in those who appear before the courts;
The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice.
Do criminal convictions always result in strike off?
Criminal convictions (even serious ones) do not always result in strike off.
In Parente the Court said that, “Three significant more recent cases illustrate that the modern profession can tolerate persons of otherwise good character who have once lapsed, even gravely, if satisfied that conduct was irrelevant to their professional qualities, or “out of character””.
The 3 cases were:
Ziems v Prothonotary (1957) 97 CLR 279 in which a barrister was convicted of manslaughter (as a result of drink driving) and was sentenced to 2 years in prison. He was initially struck off the roll, but the High Court reversed that order and instead suspended the barrister from practice for so long as he was in prison. The Court held that the conviction related to an isolated occasion and did not warrant any adverse conclusion as to the barrister's general behaviours or inherent qualities;
A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253 which concerned a solicitor who committed four offences of aggravated indecent assault on two children and after pleading guilty was sentenced to 3 months imprisonment, which on appeal was reduced to a recognisance to be of good behaviour for 3 years. The Court of Appeal found that the conduct manifested qualities of character which were incompatible with the conduct of legal practice. However, the High Court held that the conviction itself did not amount to professional misconduct as it was so remote from anything to do with professional practice and set aside the declaration that he was not fit and proper. The High Court said the Court of Appeal gave insufficient weight to the isolated nature of the offences, the powerful subjective case made on behalf of the solicitor as to his character and rehabilitation and concluded that, as the solicitor had not practised for more than five years, it would have been appropriate for the Court of Appeal to make an order for his suspension not extending beyond the present time; and
Prothonotary v P  NSWCA 320, which concerned a solicitor who pleaded guilty to importing a trafficable quantity of cocaine in her underwear, at the request of her then boyfriend – as their flight from Argentina approached Sydney. She was sentenced to 6 months in prison, but she was released after 3 months upon entering upon a recognisance to be of good behaviour for 3 months from the date of her release. The Court of Appeal accepted that the solicitor had been drug free for almost five years, and that the factual matrix of the case was such that the solicitor was not a risk to the public. The Law Society expressed the view that removal was not necessary. The Court concluded that in light of her proven rehabilitation, and the additional protection that she would have to apply to the Law Society for a practising certificate should she wish to resume practice, no protective purpose would be served by removal of her name from the roll.
Solicitors are required to maintain the highest standards of integrity in their personal lives as well as their professional lives. Conduct that happens in the personal lives of solicitors can have an impact on their right to practice law.
Solicitors need to be aware of their disclosure obligations and show cause obligations if charged with and/or convicted of criminal offences or tax offences.
Contact our Professional Conduct & Discipline Team
This article is general in nature. If you would like advice about your specific circumstances then please contact the author or one of our Professional Conduct & Discipline Team.
Authors: Jennifer Shaw & Alexandra Zoras