Since lawyers are privileged to have a much better understanding of the law than the average person on the street, the question arises: should they be held to higher standards?
Specifically, should lawyers who commit criminal offences be given harsher penalties?
Lawyers in all states in Australia must follow a code of ethical behaviour – and law students hoping to get admitted must generally be of good character.
In order to become a lawyer in NSW, the Legal Profession Act specifies that a candidate must be a “fit and proper person” which includes consideration of whether he or she:
- Is of good fame and character
- Has ever been insolvent under administration
- Has a criminal record
- Has ever practised law either in Australia or overseas when not admitted
- Has been the subject of an unresolved complaint, investigation, charge or law
- Is or has been the subject of any disciplinary action
- Has had their name removed from any local, interstate or foreign roll
- Has contravened any law about trust money or trust accounts
- Is the subject of an order disqualifying them from being employed by, or a partner of an Australian legal practitioner or incorporated legal practice
- Is unable to currently satisfy the inherent requirements of practice
It is important to note that failing one or more of these criteria does not mean automatic rejection – for example, it may be possible to become a lawyer even with a criminal record.
This will depend largely on the offence itself, when it was committed and what the candidate has done since.
But what happens when a lawyer breaks the law?
Lawyers who commit criminal offences face the same punishments as everyone else, and they may also be subject to disciplinary sanctions, including being ‘struck off’ the list of practising lawyers in the most serious of cases.
A lawyer from one Sydney law firm that practises in criminal cases was recently ‘struck off’ for a range of violations, including misleading conduct and misappropriation.
Unfortunately, some unscrupulous lawyers are even prepared to use their knowledge of the law to avoid retribution for their actions.
One well-known South Australian case involved a barrister, Eugene McGee, who many believe misused his knowledge of the law to unfairly avoid justice.
After a lunch with his mother and brother – with a bill showing three bottles of wine and a stubbie of beer were purchased – McGee drove back home.
But on his way, he had a fatal crash with a cyclist – Ian Humphrey.
As a prominent barrister, McGee would have known that fleeing the scene was against the law – but he would also have known that drink driving was an even more serious charge, as was death by dangerous driving, which comes with a maximum penalty of ten years imprisonment.
He did not turn himself in until six and a half hours later.
He could not be breath-tested by police at this time, as it was outside the ‘2 hours’ allowed by legislation.
Significantly, the jury was never told that McGee was a prominent drink driving lawyer.
The first person he called after the crash was a lawyer who is experienced in defending clients charged with ‘dangerous driving occasioning death’.
Ultimately, McGee was found guilty in court of driving without due care and failing to stop and give assistance after an accident.
He ended up with a $3100 fine and his licence was cancelled for one year.
He still practices as a lawyer, as his crime was not deemed enough to disqualify him from practising.
Unethical advocates, unfortunately, can lead the profession into disrepute.
For lawyers to flout the law or, even worse, to use their knowledge to commit crimes and avoid detection or conviction, can erode public trust in the legal system.
After all, why would anyone have faith in a legal system when its advocates flagrantly disregard its rules?
Unfortunately, many lawyers are placed to know exactly how to get away with bad behaviour.
While the majority of lawyers would never dream of acting this way, there is a small minority that do.
Fortunately, many of the bad lawyers have had to face the music: one Sydney lawyer, who scammed nearly $2 million from his clients, most of them speaking little English, was sent to prison when his case was heard in court.
His practising certificate was suspended because of his misappropriation of trust monies, and for misleading the Investigator during the investigation.
The NSW Law Society publishes a Register of Disciplinary Action where you can look up solicitors to see if they have been struck off or faced any other kind of disciplinary proceedings.
But if you are looking for a lawyer, keep in mind that not all lawyers are the same.
Take the time to look at their client testimonials, and ask around for recommendations, to make sure that you hire a professional and capable lawyer.