The legal profession legislation requires applicants for and holders of practising certificates to disclose certain matters to the Council of the Law Society of New South Wales (Law Society Council). This article provides information about matters which must be disclosed and how and when disclosure must be made.
Solicitors are expected to be aware of the legislative framework that applies to them in NSW including the Legal Profession Uniform Law (NSW) (Uniform Law), the Legal Profession Uniform General Rules 2015 (General Rules) and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (Conduct Rules).
Disclosure obligations are set out in the Uniform Law and the General Rules and should be considered in the context of rule 43 of the Conduct Rules which says that “subject only to his or her duty to the client, a solicitor must be timely, open and frank in his or her dealings with a regulatory authority.”
A failure to comply with a disclosure obligation may result in disciplinary action.
Section 51 of the Uniform Law
Section 51(1) of the Uniform Law states that it is a statutory condition of every practising certificate that a solicitor notify in writing the Law Society Council within 7 days of:
- a charge with or conviction of a serious offence or a tax offence or
- a conviction of a summary offence; or
- a bankruptcy-related event; or
- being the subject of disciplinary proceedings as a lawyer in a foreign country.
Charges
Section 6 of the Uniform Law defines a serious offence as “an indictable offence against a law of the Commonwealth, a State or a Territory (whether or not the offence is or may be dealt with summarily); or “an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth, a State or a Territory if committed in Australia (whether or not the offence could be dealt with summarily if committed in Australia).”
A tax offence is defined in s6 of the Uniform Law as “any offence under the Taxation Administration Act 1953 of the Commonwealth”
Convictions
A conviction is defined in s6 of the Uniform Law as including “a finding of guilt, or the acceptance of a guilty plea by the court, whether or not a conviction is recorded”.
A conviction for a serious offence or a tax offence also constitutes an automatic show cause event and the provisions in Part 3.5 of the Uniform Law apply.
Importantly, having regard to the definition of conviction in the Uniform Law, you may still be required to notify the Law Society even if your matter is dismissed under s10 of the Crimes (Sentencing Procedure) Act 1999 or dealt with under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
Rule 15(2) of the General Rules prescribes the summary offences which are required to be notified to the Law Society for the purpose of s51(2) of the Uniform Law. There are a limited number of summary offences that are excluded from the general rule requiring notification under s51 (see rule 15(3)).
You must also disclose convictions in foreign countries at the time you apply for grant or renewal of your practising certificate under the provisions of rule 13(1) of the General Rules.
If you lodge an appeal in relation to your conviction, this does not alter your obligation to notify the Law Society.
Bankruptcy related event
A bankruptcy related event occurs when a person:
- becomes bankrupt under the Bankruptcy Act(or the corresponding provisions of the law of a foreign country or external territory); or
- has been served with a notice of a creditor’s petition presented to a court under s43 of the Bankruptcy Act; or
- presents (as a debtor) a declaration to the Official Receiver under s54A of the Bankruptcy Actof his or her intention to present a debtor’s petition or his or her presentation (as a debtor) of such petition under s55 of that Act; or
- his or her applying to take the benefit of any law (whether Australian or otherwise) for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for their benefit.
Disciplinary proceedings
If you become the subject of disciplinary proceedings as a lawyer in a foreign country, you must notify the Law Society in writing within seven days (s51 of the Uniform Law).
If you become the subject of disciplinary proceedings within Australia, or a foreign country, in the legal profession or any occupation, this is something that must be disclosed at the time you apply for the grant or renewal of your practising certificate under rule 13 of the General Rules.
Automatic show cause events
An automatic show cause is a bankruptcy-related event or a conviction for a serious offence or a tax offence (s86) and must be notified to the Law Society Council within seven days.
In addition to notifying the Law Society Council within 7 days, you must also within 28 days provide a statement about the show cause event which sets out the facts and circumstances of the event and that explains why, despite the show cause event, you consider yourself to be a fit and proper person to hold a practising certificate (show cause statement). You should also provide any documents which would support why you are a fit and proper person to hold a practising certificate.
If you are applying for a practising certificate, you must disclose any automatic show cause events that has occurred regardless of whether or not you have disclosed the matter to the relevant admission authority (s87 of the Uniform Law) and provide a show cause statement (rule 12 of the General Rules).
Once the show cause statement is received, the Law Society Council must determine whether or not the person is fit and proper to hold a practising certificate. The Law Society Council may then vary, suspend, cancel or refuse to renew a practising certificate (s89 of the Uniform Law).
The Law Society Council may also vary, suspend or cancel, or may refuse to renew, a certificate if a person fails to provide a show cause statement (s89(2)(a) of the Uniform Law).
If the Law Society Council determines that a person is a “a fit and proper person (or can be considered such a fit and proper person if [it] is satisfied that doing so is warranted in the circumstances), it … must take no further action in relation to the show cause event; but …may impose a discretionary condition that it considers appropriate in the circumstances” (s89(3) of the Uniform Law).
As part of its consideration of whether a person is fit and proper to hold a practising certificate despite an automatic show cause event occurring, the Law Society Council is not limited to just the automatic show cause event; and “may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the automatic show cause event concerned” (s89(4) of the Uniform Law).
What do I need to disclose when I apply for a practising certificate or apply to renew my practising certificate?
Section 45(2) of the Uniform Law says that the Law Society Council “must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate” subject to s45(4). The matters relevant to a consideration of whether a person is fit and proper to hold a practising certificate are set out in rule 13 of the General Rules.
Accordingly, when applying for an Australian practising certificate in NSW, applicants must address each of the matters referred to in rule 13(1) of the General Rules (see rule 12). Solicitors should familiarise themselves with rule 13 before commencing an application for grant or renewal and the disclosure obligations under the Uniform Law and General Rules.
You can view the matters listed under Rule 13 here.
Matters not specifically referred to in rule 13 of the General Rules and which would not reasonably affect your fitness or whether you are of good fame and character are not required to be disclosed.
How to notify the Law Society Council
For charges, convictions or a bankruptcy related event, you may notify the Law Society Council by using the relevant form on the Law Society’s website. The form should be sent to [email protected] along with any relevant documents for consideration.
If you are an applicant for a practising certificate, you should lodge your Statement of an ‘Automatic Show Cause Event’ form with your application for a practising certificate.
Disclosure made in accordance with rule 13(1) of the General Rules, should be made at the time you apply for renewal or grant of your practising certificate with your application form.
In relation to any other matter, including foreign disciplinary proceedings, you should notify the Law Society Council through the Professional Standards Department at [email protected]. Please contact the Professional Standards Department by telephone on (02) 9926 0110 if you need assistance with providing information in writing or if you have any questions in relation to the disclosure provisions.
What happens if notification is not provided?
Failure to disclose a matter required to be disclosed under the Uniform Law is a serious matter and may constitute professional misconduct or unsatisfactory professional conduct. In some cases failure to disclose a matter may lead to refusing an application for grant or renewal of a practising certificate, or cancellation or suspension of your practising certificate.
In Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144, White JA stated at paragraphs 81 and 82:
“An applicant for admission, or in this case for the renewal of a practising certificate, has a duty of candour. The content of that duty extends to a requirement that an applicant disclose material facts in their application for renewal. Deliberate or wilful concealment is professional misconduct (A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 252; [2004] HCA 1 at [30]; Prothonotary v Comeskey [2018] NSWCA 18 at [57]-[63]).
The same conduct, even if not deliberate, may still support a conclusion that an applicant is not a fit and proper person to engage in legal practice if the conduct reveals a lack of appreciation of the content and importance of the applicant’s duty of candour (Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 at [74]-[76]).”
If you become aware that you have not disclosed a required matter to the Law Society Council, you should make the notification as soon as possible to the Professional Standards Department at [email protected].
What happens after notification?
You may be required to provide further information or submissions as to why you are a fit and proper person to hold a practising certificate or engage in legal practice.
The Law Society Council will consider whether or not you are a fit and proper person to hold an Australian practising certificate and whether any conditions need to be imposed on your practising certificate. You will be afforded procedural fairness as part of this process and have a right of review if any action is taken in relation to your practising certificate or your application for a practising certificate is refused (see s100 of the Uniform Law)
Please contact the Professional Standards Department by email to [email protected] or on (02) 9926 0110 for further information or assistance.
