ADMISSION IN THE FACE OF ACADEMIC MISCONDUCT:
PROTECTING PUBLIC INTEREST
Public interest is at the forefront of the suitability requirements for those seeking admission to the legal profession. Legal practitioners are imbued with an “institutional trust”, which demands indubitable public confidence that lawyers will act in the best interests of their clients and not prioritise self-serving behaviour. Lawyers have a fiduciary duty that is second only to their duty to the Court. Thus, a solicitor-client relationship is reliant on trust, and based on the assumption that the solicitor has rightfully attained their qualification and is in a deserved position of power. The failure to exhibit a high standard of candour and moral integrity is fundamentally inconsistent with the inherent requirements of a lawyer. It is therefore imperative that the public is protected from unsuitable applicants to the legal profession, namely law students who engage in academic misconduct while at university.
The Standing Committee of Attorneys-General draft National Model Bill, and the Council of Australian Government’s National Legal Profession Reform Taskforce resulted in Uniform Law that is largely consistent throughout Australia. As such, I will refer to leading case law authorities from various states as well as NSW to broaden the analysis in this paper. Firstly, I establish the importance of maintaining the integrity of the legal profession in relation to the requirements for admission to practice in NSW. I then identify plagiarism as the most pervasive means of academic misconduct, and examine the widespread causal consequences. Finally, I compare and contrast the suitability of those who buy and sell their notes, thus highlighting the necessity to protect the public from those we deem unsuitable to enter the legal profession.
UPHOLDING THE INTEGRITY OF THE LEGAL PROFESSION
Practising as a lawyer involves considered navigation of ethical decision-making and social responsibility. Members of the legal profession are held to a high level of moral intensity as the successful functioning of the legal system relies on the honesty and integrity of practitioners. The threat of disrepute is not only destructive of public confidence in the legal profession, but also in affiliated branches of law enforcement and overarching Government authority. It is therefore reasonable that admission to the legal profession requires more than the successful completion of a university degree. Rather, admission requirements that assess suitability consider an individual’s ethical predisposition and degree of moral intelligence.
The Supreme Court exercises a right to supervise the admission and continued certification of lawyers through the provision of a Practising Certificate, while the Legal Profession Admission Board (LPAB) is responsible for administrative operations. The Legal Profession Uniform Law 2014 (the Uniform Law) consolidates the principles valued in the profession, and outlines the high ethical standard “which engenders in the Court and client unquestioning confidence in the complete discharge of their professional commitments.” Part 9.2 of the Uniform Law empowers the Legal Services Council to make the Legal Profession Uniform Admission Rules 2015 (the Rules), which further outline the specific eligibility and suitability requirements for admission to the legal profession. The Supreme Court does not maintain inherent jurisdiction to examine the conduct of solicitors for the purpose of “self-aggrandizement”, but rather to protect vulnerable members of the public from misconduct.
For the LPAB to grant a compliance certificate for admission, it must first be satisfied that the applicant is currently a “fit and proper person” of “good fame and character”. As a practitioner’s paramount duty is to the Court and the administration of justice, applicants must provide frank disclosure statements in support of their personal and academic integrity. As the “heart of all of those duties is a commitment to honesty”, an applicant must disclose any relevant matter notwithstanding embarrassment or unfavorable detail. The Rules encourage an attitude of abundant disclosure. Case law further reaffirms that the level of detail required is not limited other explicitly worded requirements such as a police report. In determining what details are worthy of disclosure, applicants are instead urged to consider the overarching principle of fitness to practice. It is widely accepted that all admitting bodies across common law jurisdiction regard academic misconduct to be inherently adverse to an assessment of current fitness. It is commonly held that those who engage in academic misconduct at university possess undesirable characteristic traits that are indicative of future professional misconduct. Moreover, the admission of a lawyer who has engaged in academic misconduct undermines public confidence in the profession and consequently compromises the paramount duty to the administration of justice.
PLAGIAIRSM
Plagiarism is commonly understood to be the misappropriation of others words or ideas without adequately attributing authorship by way of referencing. The distinction between dishonest and intentional plagiarism as compared to an act of recklessness or carelessness is divisive within the legal community. However, case law illustrates that Australian Courts place considerable significance on intent. Re Humzy-Hancock and Law Society v Richardson distinguish between deliberate plagiarism and poor referencing or naivety. It was found in both cases that the latter did not prevent admission as a solicitor. Nonetheless, applicants who face a legal challenge to their fitness to practice are subject to extreme emotional stressors, costs and reputational damage. In Re Humzy-Hancock, Justice McMurdo determined that a lack of understanding caused by inadequate education reduces the culpability of the student. Furthermore, the lack of uniformity between law schools ultimately places the onus on universities to educate students on the degree of academic integrity required. However, the general consensus within the legal community is that academic misconduct is “reprehensible” and unequivocally intolerable. The failure to disclose an instance of plagiarism is perceived to be almost as significant as the misconduct itself; as such wrongdoings offend the inherent values of the legal institution and threaten public confidence.
It is not surprising that the legal profession is experiencing an unprecedented degree of criticism as instances of academic misconduct have reached “epidemic proportions”. The proliferation of information in the digital era and the anonymity that the Internet allows has resulted in new forms of plagiarism such as contract cheating and purloining. Those who seek legal services are often in a position of vulnerability or powerlessness. Thus, the public must be protected from those who engage in any form of plagiarism thereby proving they are unsuitable to enter the legal profession. Applications for admission are routinely denied on the assumption that past behaviour is a reliable predictor of future behaviour. Although instances of significant plagiarism involve a fundamental breach of honesty and integrity, external influences may also act as an aggravating factor. Plagiarism is often viewed as a cultural product of modern day university; “university creates a landscape in which plagiarism can flourish.” The perceived lack of accountability and consequences is particularly prevalent as modern society continues to evolve and deviate from traditional values. However, even minor instances of plagiarism that occur as, or are exacerbated by peer culture, an overwhelming pressure to achieve or poor time management undermine an individual’s future ability to adapt to the robust demands of the profession. It is therefore reasonable to assume that a student who displays dishonesty while at university would have the propensity to do so as an admitted practitioner, when the pressure is greater and the stakes invariably higher.
As seen within Re Livieri, an applicant who was found to have engaged in three instances of plagiarism and failed to disclose the truth on multiple occasions, students who engage in academic misconduct display a brazen attitude of ‘high risk high return.’ In deliberately concealing the truth and thereby misleading the court, Livieri acknowledged the gravity of attaining an academic advantage to which she was not entitled, but failed to understand the widespread consequences. It has been established that the failure to ascertain the seriousness of academic misconduct is in part caused by a lack of education. However, it can be more widely attributed to the common misconception that “a lawyer who has been admitted to the bar… may plagiarise to his heart’s content without negative consequences.” Paralegals and junior solicitors are increasingly immersed in a pervasive workplace culture that implicitly encourages plagiarism. It is not uncommon practice for a senior solicitor to publish the verbatim work of a more junior staff member without acknowledgement of authorship. Judicial plagiarism similarly involves the word for word appropriation of another’s work and has been dismissed as a “widely accepted practice”. While judicial judgments must rely on the doctrine of stare decisis, unattributed and identical replication falls significantly short of the ethical requirements bestowed upon a high-ranking legal professional. Thus, practices that occur on a day to day basis and are considered standard amongst the legal community inadvertently undermine the fundamental principles of academic integrity that are instilled within law students. As a result, the widespread perception that academic misconduct ceases to be a consideration post-admission trivializes the suitability requirements for admission and reinforces that a duty to protect the public transcends the admission process.
BUYING AND SELLING NOTES
In determining whether an incident constitutes academic misconduct, Courts look to see whether the pedagogical purpose of assessment has been undermined. It is necessary to make a clear distinction between behaviour that amounts to academic misconduct and genuine instances of cooperation that facilitate learning. In assessing an applicant’s fitness to practise, the Court focuses on the deontological requirements for admission. That is, whether the individual is concerned with the inherent rightness or wrongness of their actions, as compared to having a pragmatic concern for the consequences of that action. If publicised, the misbehavior of an individual can have a symbolic effect on public confidence, reflecting badly “not only on the integrity of the courts, but on the integrity of all those who practice before them and provide legal services.” The practice of buying and selling notes epitomises the changing and diversifying landscape of plagiarism in a digital era, and causes controversy as to the scope of academic misconduct.
The practice of selling University notes that are unspecific to an assessable assignment does not defeat the intended pedagogical purpose of assessment. Rather, a primary issue is the possibility that intellectual property is being exploited for profit, without approval and guaranteed accuracy. In Law Society v Richardson, the Law Society’s application to prevent Richardson from being admitted was partly due to his carelessness in sharing a copy of his draft assignment. Justice Crawford found that Richardson’s only mistake was entrusting his classmate and denied the allegation of collusion. However, it was found that a student who knowingly assists another in attaining an unfair advantage could be found guilty of engaging in academic misconduct themself. In applying the judgment in Richardson, it is possible that the court could find a student selling notes to be engaging in academic misconduct and thus unsuitable to practice.
The MyMaster cheating scandal in 2015 saw 70 students from 16 Australian universities face severe consequences for buying university materials online, a number of which faced expulsion. Buying notes is comparable to the act of contract cheating – commissioning another party to produce an assessment task that is then submitted as their own. Contract cheating is a clear example of academic misconduct, whereas students who are time poor or experiencing financial stress and cannot afford textbooks can easily justify buying notes. The MyMaster scandal revealed that the consequences of buying and selling notes is largely dependent on individual universities academic honesty and integrity principles.
In the interests of maintaining public confidence, applicants who express blasé indifference to the inherent requirements of the profession by engaging in academic misconduct must be prevented from admission. Most notably, the public must be protected from law students who engage in significant acts of plagiarism, as they are likely to engage in similar professional misconduct as admitted solicitors. Whilst buying and selling notes represents a more ‘grey area’ of the law, a prudent student would err on the side of caution, as the disclosure requirements for admission are vigorous. Thus, this paper exemplifies the paramount importance of protecting the public from those who are unsuitable to enter the legal profession.