A friend sent me this interesting case, Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 250. It concerns both fitness to practice law and plagiarism at university.
In my first year of teaching, I was shocked to come across what appeared to be plagiarism (material which seemed to have been copied verbatim from the Internet). Fortunately, I didn’t have to decide whether it was plagiarism or not, and I could handball it to the people who deal with that kind of thing. I don’t know what happened in the end. But if plagiarism was established, I had never thought about the implications for the student’s admission to practice. This case provides a salutory warning for any law students who have been found to have colluded or plagiarised in the course of university assessment.
For the non-lawyers out there, when lawyers are admitted to practice, they have to tell the Admissions Board about every matter which may suggest they are not fit to practice (ss 1.2.6 and 2.3.3, Legal Profession Act 2004 (Vic)). This includes fines for parking and speeding, and public transport fines. And it seems that it also includes being frank about allegations of plagiarism or collusion during a lawyer’s university career.
The case involved two students, OG and GL, who were studying Business and Law at Victoria University. In the first semester of 2005, both students were studying Strategic Marketing and Planning. The first assignment for that subject was a group assignment, but the second assignment was to be completed individually, building on the material in the first assignment. The lecturers of the subject formed the opinion that OG and GL had colluded in preparing the assignment. Each were awarded zero marks for the assignment. Once they had graduated, the two students went on to complete a Leo Cussens course in order to qualify for practice. Each made disclosures about the incident with the Marketing Assignment, but they differed substantially. In his letter to the Board of Examiners, GL said:
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. …
By contrast, OG’s disclosure letter stated as follows:
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.
OG was admitted, as the Board of Examiners accepted this admission.
GL was required to attend hearings before the Board of Examiners before he could be admitted, and in the course of this, the allegations against OG came to light. By this time, OG had already been admitted to practice. In the event, GL was not admitted to practice on the basis of a lack of frankness in his admissions to the Board of Examiners.
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). It outlined the malleable nature of this concept, and showed that the boundaries are always changing. Previously, tax evasion was not a bar to practice, but now it is according to ss 2.4.26 and 2.4.27 of the Legal Profession Act 2004 (Vic). And as the case above indicates, plagiarism and collusion may provide bars to practice, depending on the circumstances: see also Re AJG [2004] QCA 88.
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?
The Legal Soapbox 
Oh good, I was hoping you would comment on this one. OG really comes across as an unattractive character, especially turning on GL at the end when GL had tried as hard as he could to keep OG out of it while he made a fair disclosure about himself. The Court was right to revoke OG’s admission on the basis that he clearly lied to the Court and pursued all sorts of unscrupulous tactics to avoid the consequences of his actions. I know, I know – I would have squirmed to avoid those consequences too! But there are lines you can’t cross and in future be trusted by the Court to be honest in prosecuting your client’s case, because there are always going to be temptations to cross lines for them too, to mislead the Court in little ways that will never hurt anyone and no one will ever find out about… Plagiarism and any form of deception, including theft or riding a tram without a ticket are, i would suggest, considered more serious in this situation than an offence like drug possession or assault which might not necessarily impact on your honesty.
I don’t know if the disclosure system is the best possible, but perhaps it proceeds on the same basis as those Customs declarations, with stupid questions like “Are you carrying a nuclear device or do you intend to engage in an act of terrorism whilst travelling in our country?” The question is not so much designed to elicit a positive response (who would agree to the proposition?), as to put people on notice and to give a foolproof ground to the authorities to chuck them out on the basis of false disclosure just in case nothing else can be made to stick.
A nice case note of a long case. There are more law students than lawyers. Society has no need at all for any particular lawyer who is already admitted to practice. A law degree is well regarded by employers. Stopping a young lawyer’s career at its outset is not exactly a death knell. Where a lawyer is found to have lied at a serious moment for self-advantage, and there are no exculpatory mental health issues, they should be struck off the roll unless there is a full and frank confession from the outset and very real reasons to believe that it will not be repeated. No difficulty in that question for me. Funnily enough, the answer seems clearer than in the case of theft of clients’ money.
Pingback: Cases, cases
Aimee and Stephen, you both raise interesting points.
First, I agree with you, Aimee, that dishonesty offences impact more on person’s fitness to practice than other offences.
Secondly, Stephen, I agree with your comments. There’s so many lawyers out there…if there was a scarcity, perhaps there would be a need to be more lenient.
I have never quite understood the obsession of the Law Institute and regulatory bodies with trust accounts. Yes, it’s a terrible thing to defalcate on trust accounts, but there’s more to ethical behaviour than that. And further, studies have shown that trust defalcations may occur not because a solicitor is dishonest, but because he or she is severely depressed.
I rang the Law Institute Ethics advisory line to report what I thought was unethical conduct on the part of a principal towards his articled clerk, and I was told that they only really dealt with trust funds. To my mind, the conduct of this man was far worse than defalcating a trust fund, and at the very least, he should never be allowed to have a articled clerk under his supervision again. But that might actually require making some tough decisions.
Trust account cases prove themselves, that’s why. They’re neat and numerical.
EXACTLY! No need to make fine moral judgments. Just look at the numbers, and fiduciary law does the rest for you.
By the way there was no point ringing the Ethics Advice Line to report someone. They give advice and do not accept complaints. The Legal Services Commissioner would have been the go.
Pingback: Like a wounded bull « The Legal Soapbox
Pingback: cearta.ie » Solicitors, Plagiarism, and Fitness to Practise