Solicitors, Plagiarism, and Fitness to Practise

Legal Sopabox blog avatar.Part V of the Solicitors (Amendment) Act, 1994 (also here) governs qualifying for admission as a solicitor in Ireland. Amending section 24 of the Solicitors Act, 1954 (also here), section 40 of the 1994 Act provides that

a person shall not be admitted as a solicitor unless

(e) he has satisfied the Society [ie, the Law Society of Ireland] that he is a fit and proper person to be admitted as a solicitor.

In the Australian state of Victoria, the equivalent legislation [section 1.2.6 of the Legal Profession Act, 2004] requires that the person be “currently of good fame and character”. Moreover, in both Ireland and Vitoria, there is elaborate machinery to strike a solicitor off for alleged misconduct. I learn from The Legal Soapbox (an entertaining Australian blawg, and one of my favourites) that the Victoria provisions have recently featured in case which is a cautionary tale for all students wishing one day to be admitted to practice as solicitors. The case is Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 250 (14 December 2007). It involved two students of Victoria University, OG and GL, who were found to have colluded on a university assignment and received marks of zero as a consequence. When they came to apply for admission to practice as solicitors, each made disclosures about the incident, but their letters were rather different. OG’s letter provided:

On or about 26 July 2005 I received a zero grade for an assessment component in a Marketing subject at University for a misunderstanding that occurred. I had a clash in my Law and Marketing subjects and as a result the Strategic Marketing & Management subject coordinator exempted me from attending tutorials.

I undertook an assessment component that was worth 15% of the total assessment for that subject, which was to be conducted as a group task for both the research component and the writing up of the assignment. However, I misunderstood this as a result of my non attendance at the tutorials, and whilst I conducted the research process in a group I mistakenly wrote up the assignment individually.

As a result of my misunderstanding the topic coordinator awarded me a zero mark for that assessment component. I subsequently still, successfully passed the subject.

No record of the event was recorded and at no time was it suggested to be plagiarism or the like. I did not go before the University Board, nor did I fail the subject for my misunderstanding. It was an internal matter with the subject coordinator.

On the basis of this letter, OG was admitted to practice. However, GL’s letter provided:

I wish to disclose the following to the Board.

In late July 2005, I was accused of colluding with another student on an assignment for the subject of Marketing Planning and Strategy. I spoke to the Topic Co-ordinator and Head Lecturer and stated that I did not collude with the other student. They did not accept my reasoning for why the assignments were similar.

My reasoning for why the assignments were similar was that it was a mere coincidence. The assignment was based on the findings of a group project completed a few weeks earlier, I was in the same group as the other student. The assignment called for developing a marketing strategy based on the product research in our group subject. There were only two possible strategies that could be used.

They advised that I could go the University Board to defend the matter but based on my reasoning, they were of the opinion that our appeal would be rejected. They also said that if I went to the University Board there would be a mark of [sic] my record. If the matter was dealt with by the Topic Co-ordinator and Head Lecturer, they would not put a mark on my record.

I decided to take the penalty of receiving a zero for the assignment and they said that the matter would not be taken further.

On the basis of this letter, GL was required to attend a hearing during which the allegations against OG came to light. GL was not admitted to practice, and the question in the case was whether OG should be struck off. I’ll let Soapbox take the story up from here:

The question for the Supreme Court of Victoria was then whether OG should be struck off the roll. In the event, the Court concluded that the most likely possibility was that the students had colluded in the preparation of the assignment, and that they had discussed the matter fully. OG had denied that the university had communicated the allegation of collusion to him, but the Court found the university had done so. They further found that OG knew that GL was disclosing the matter to the Board of Examiners. OG’s admission to practice was revoked.

There are a few lessons to be learned for young players from this case. If you’ve had allegations of plagiarism or collusion against you during your university studies, make sure you disclose it. And make sure your disclosure really is full and frank. Don’t compound one misdeed (plagiarism/collusion) with another (failure to be honest about the circumstances). GL would probably have been better off being totally frank about the collusion; it seems that he did not want “to rat” on a mate, and tried to protect OG, and that this in part contributed to his own failure to be admitted.

I read an interesting piece by Gino Dal Pont in the Law Institute Journal a few months back about the requirement that a lawyer be of “good fame and character” ((2007) 81(10) LIJ 76 (sub req’d))…. see also Re AJG [2004] QCA 88 (15 March 2004).

I think the Court made the right decision in regard to OG. In some ways, he was very unlucky that GL was also a law student, and was honest enough to disclose the matter. If GL had written a letter which was similar to OG’s, perhaps they would have gotten away with it. And if GL had not been a law student at all, the matter would never have come to light. It’s a little scary. I don’t like the idea of people like OG practising. Does the disclosure process work? Insofar as it requires good faith on the part of the applicant, there is a problem, highlighted by OG’s case. If a person is dishonest, they will make a dishonest disclosure in an attempt to gain admission. At least by striking this guy off the roll, the Court has given a message that this kind of conduct will not be tolerated.

Another question: does this requirement of good fame and character make people trust lawyers more? Or think that we are ethical? Excuse me while I go into hysterics here. Despite all these requirements, lawyers are distrusted and widely regarded as unethical. (I keep thinking of the line from the Tom Waits song: “Killers, thieves and lawyers, God’s away, God’s away, God’s away on business, business.”) I wonder if it’s a bit like highly religious people. The highly religious proclaim high moral standards for themselves (and sometimes try to impose them on others). It’s quite easy, therefore, to find examples of hypocrisy amongst religious zealots because the standards are so high, and so it is with lawyers too. Perhaps we lawyers would be better off admitting that we are human, and that some of us are not good or ethical people. But then, on the other hand, I think it’s important to keep in mind that as lawyers, we hold a good deal of power and responsibility, and that we purport to uphold and advance the law. And I also think that it’s important to aspire to honesty and to get rid of lawyers who have shown a tendency to be dishonest. What do others think?

I couldn’t agree more, but I’d still like to make four brief points.

First, on the issue of student plagiarism, this is a serious academic offence (for example, the TCD policy on plagiarism is at section 68, page 116 of this pdf; Victoria University has a similarly strong policy against plagiarism; and the University of Leeds has an excellent set of resources about the issue). In Ireland, the Law Society requires Law Schools to confirm that applicants are in their view fit and proper persons to be admitted to practice. This is usually routine. Indeed, I have signed such letters myself in various academic/administrative capacities, but I can’t imagine certifying someone found to have committed such a serious academic offence as plagiarism, certainly not without disclosing the plagiarism to the Society. If the Law Society in Victoria has a similar practice of seeking certification from the universities, then the plagiarism should have come to light at that stage. If it doesn’t, it might consider introducing it. Perhaps Soapbox could enlighten me on this point in the comments below?

Second, I can’t help thinking that, whilst OG got what he deserved, GL might have been harshly treated. After all, he came clean and admitted his undergraduate error. If ‘fessing up doesn’t earn some brownie points, the incentive not to will be reinforced. However, as Soapbox points out, the Board took a dim view of the fact that he tried not to drop OG in it too. The Chairman of the Board referred both to GL’s collusion and his lack of candour (in particular, regarding OG) in his affidavits and evidence, and concluded (see [2007] VSC 250 [66]):

The decision of the Board is that it is not prepared to grant GL a certificate and I can indicate that that decision is based upon the latter of those two reasons which is to say the quality of the disclosure f[o]und in GL’s affidavit and the evidence he’s given from the witness box in going to his candour and the full and frank nature of the disclosures that he’s made.

In other words, if you’re going to come clean, come completely clean.

Third, on the issue of society’s trust in lawyers more generally, that has taken a battering recent weeks in Ireland (see, eg, here) and the very least we can expect is that requirements of good character are and will be enforced as vigorously as possible.

Finally, I love the Tom Waits reference; as a reward for those who have read this far, here‘s an entertaining YouTube tribute video of the song.