Ali v New Zealand Law Society [2014] NZHC 1111

Ali v New Zealand Law Society [2014] NZHC 1111 [23 May 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-664[2014] NZHC 1111IN THE MATTER of the Lawyers and Conveyancers Act2006IN THE MATTER of an application by Roble Mohamed AliBETWEEN ROBLE MOHAMED ALIApplicantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 21 May 2014Counsel:Appearance:PN Collins for respondentRM Ali, applicant in personJudgment: 23 May 2014JUDGMENT OF FAIRE JThis judgment was delivered by me on 23 May 2014 at 11:30ampursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: New Zealand Law Society, AucklandAnd To: RM Ali, AucklandIntroduction[1] The applicant, Roble Mohamed Ali, applies to be admitted as a barrister and solicitor of the High Court of New Zealand. The applicant has the necessary qualifications prescribed by the New Zealand Council of Legal Education. He has produced a certificate to that effect from the New Zealand Council of Legal Education, dated 20 August 2013.[2] The New Zealand Law Society has declined to give the applicant a certificate for the purposes of s 51 of the Lawyers and Conveyancers Act 2006, that the applicant is a fit and proper person to be admitted as a barrister and solicitor of the High Court of New Zealand.[3] In accordance with r 6 of the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008, the New Zealand Law Society has filed a notice of opposition and an affidavit from Ms SL Inder, who is employed by the New Zealand Law Society as its regulatory solicitor and secretary to its Practice Approval Committee.The grounds of opposition by the New Zealand Law Society[4] The grounds pleaded in the notice of opposition are simply stated as theapplicant is "not a fit and proper person for admission".[5] The grounds advanced, however, are set out in greater detail in the affidavit of Ms Inder. They are that the applicant engaged in repeated instances of academic misconduct. They were notified in a letter sent by Ms Inder to the applicant on 11 June 2013 which set out the reasons for opposition as follows:The number of incidents of plagiarism both at the University of Waikato and the Institute of Professional Legal Studies – five in total;Despite receiving formal written warnings you failed to learn from the experience and you continued to plagiarise;You failed to comply with the penalties imposed;You failed to take responsibility for your actions;You were not open and honest with the IPLS director or the Law Society when questioned about the incidents.The reference to "IPLS" is a reference to the Institute of Professional Legal Studies.Applicant's background[6] The applicant is 25 years of age, having been born at Kuntawarey, Somalia on 1 June 1988. He came to New Zealand with his parents and siblings when he was aged approximately 6 or 7. The family immigrated from Kenya as part of refugee arrangements as a result of the civil war in that country. He attended primary and intermediate schools in Hamilton and completed his secondary education atHamilton Boys' High School. He was granted New Zealand citizenship on 12 September 2005. At the age of 19 he enrolled as a student at the University ofWaikato where the matters that are the subject of the New Zealand Law Society'sopposition occurred.[7] He advises that he moved to Auckland at the end of 2012, after completing both his Law and Arts degrees. He said he struggled to find any form of employment. However, with the assistance of Mr JA Farmer QC he says he was directed to an opening at Meredith Connell where he took up a fixed-term law clerk position to assist on a Ministry of Education case. There has been no confirmation of his work efforts at Meredith Connell. He says that he left the firm at the conclusion of the fixed term contract because all that was offered was a month-to- month employment arrangement which left him in an uncertain position as far as income was concerned.[8] He said that from there he took on a temporary contract in the Regulatory Affairs team at Fisher & Paykel Healthcare. This gave him work for three months, where he was involved in working on international registrations of medical devices. Once again, there has been no independent evidence as to his performance with this employer. He said that his employment was terminated with all of those in the team that he was working in as a result of financial constraints at Fisher & Paykel.[9] He says that he is currently enrolled at the University of Auckland in a commercial LLM course. He is currently acting as an employment relations consultant on a sub-contract basis. Fees are paid on a contingency basis. He is not happy with the arrangement and would like to have his work on a more formal footing and on the basis that he is performing the role of a lawyer. He says that he has recently been asked to represent Somalia as part of their national basketball team in a FIBA tournament in Kampala, Uganda in June of this year.[10] He acknowledges that he has made mistakes. He claims that he is now working every day to better himself. He says one of his objectives is to assist the Somali community.The statutory provisions[11] Applications for admission as a barrister and solicitor are dealt with in Part 3 of the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008.[12] Before dealing with the specific requirements that must be met for admissionas a barrister and solicitor it is appropriate to note, first, the Act's purposes and,second, the definition of the fundamental obligations of lawyers contained in the Act. These are set out in sections 3 and 4 of the Act.[13] Section 49, which is Part 3, prescribes the qualifications that must be met for a person who desires to be admitted as a barrister and solicitor. For the purposes of this application, I am required to consider the first category of person referred to in s 49, namely who:(a) have all the qualifications for admission prescribed or required by the New Zealand Council of Legal Education; and(b) are fit and proper persons to be admitted as barristers and solicitors of the High Court; and(c) meet the criteria prescribed by rules made under section 54.[14] The specific issues raised by the New Zealand Law Society's oppositionconcern the question of whether the applicant is a fit and proper person to beadmitted as a barrister and solicitor. In this case, the New Zealand Law Society has declined to provide a certificate certifying that the applicant is a fit and proper and person to be admitted as a barrister and solicitor of the High Court pursuant to s 51 of the Act. Section 55 sets out the matters that the court may take into account. The relevant provisions provide:55 Fit and proper person(1) For the purpose of determining whether or not a person is a fit and proper person to be admitted as a barrister and solicitor of the High Court, the High Court or the New Zealand Law Society may take into account any matters it considers relevant and, in particular, may take into account any of the following matters:(a) whether the person is of good character:(3) Subsection (1) does not limit—(a) the grounds on which it may be determined that a candidate is not a fit and proper person for admission as a barrister and solicitor; or(b) the criteria that may be prescribed by rules made under section 54.[15] The requirements of ss 49 and 55 of the Lawyers and Conveyancers Act 2006, although more prescriptive, repeat the requirements for admission as a barrister and solicitor that were contained in s 46 of the Law Practitioners Act 1982. Relevant to this application is the requirement that the candidate is of good character and fit and proper person to be admitted.[16] In this case, the Law Society relies specifically on s 55(3)(a) and submits that a case of academic misconduct is an appropriate basis to conclude that a candidate is not a fit and proper person for admission as a barrister and solicitor.The authorities[17] Mr Ali and Mr Collins referred to a number of authorities which discuss the requirement that an applicant is required to satisfy, that is, that the applicant is of good character and is a fit and proper person to be admitted as a barrister and solicitor.[18] In re Lundon, an authority often referred to on both restoration to the roll andin relation to the analysis of a person's fitness for admission, Court of Appeal said:1 what we are called upon to do is to decide whether upon the evidence we would be justified upon valid and substantial grounds in holding out to the public that the applicant is a fit and proper person to stand in the ranks of an honourable profession to whose members ignorant people are frequently obliged to resort for assistance in the conduct of their affairs, and in whom they are in the habit of reposing unbounded confidence. The relations between a solicitor and his client are so close and confidential, and the influence acquired over the client is so great, and so open to abuse, that the Court ought to be satisfied that the person applying for admission is possessed of such integrity and moral rectitude of character that he may be safely accredited by the Court to the public to be entrusted with their business and private affairs.[19] In Singh v Auckland District Law Society the Auckland District Law Societyopposed the applicant's application.2 He had acted as a lay advocate before the Refugee Status Appeals Authority and in that context had assisted appellants in the manufacture of evidence and was grossly incompetent. The court said, in referring to good character that the person must be of unquestionable integrity, probity and trustworthiness.3 In relation to the requirement of fitness, the candidate must prove:4 that he or she will properly discharge his or her duties to the Court and to his or her clients; and that he or she is a person who may be accredited to the public by making an order admitting him or her to practice.[20] In re M a full court had to consider the position of an applicant who had certain criminal convictions from the past.5 The full court noted that faced with the evidence of the criminal record alone, it would answer the application undoubtedly,"no". However, it received positive evidence of the applicant's recent years and,after considering her cross-examination, the court was satisfied that both the public and responsible members of the profession would accept that the applicant was a suitable candidate for admission. This case is helpful for its reference to four features, which are often relied upon as relevant in the assessment as to whether a person is a fit and proper person for admission.1 Re Lundon [1926] NZLR 656 at 657 –658 (CA).2 Singh v Auckland District Law Society [2002] 3 NZLR 392.3 At [28], citing Bolton v Law Society [1994] 2 All ER 486 (CA) per Sir Thomas Bingham MR at 491(h).4 At [29].5 Re M [2005] 2 NZLR 544 (HC).[21] They are, first, that the focus is necessarily forward looking. The court'sfunction is not to punish the applicant for past conduct. The court is required toconsider the applicant's worthiness and reliability in the future.[22] Second, the onus is upon the person who has erred. That will be a heavier one where the candidate has transgressed following admission and is applying for readmission.[23] The third feature is that due recognition must be given to the circumstances of youth were errors of conduct occur, and there is evidence of immaturity.[24] The fourth is that it is important to look at the facts of the case in the round and not simply to just pay regard to the previous conviction or other disqualifying conduct.[25] In Re Owen application was made by man of thirty-eight years of age.6 He had had an unfortunate history, including an expulsion from school, abusing alcohol and drugs, a list of petty convictions and a more serious conviction at the ages of twenty-five and twenty-seven. At the age of twenty-eight he was convicted of wilfully setting fire to a property. In his mid-thirties he was convicted of four driving offences, including driving whilst disqualified. In this case, there was considerable evidence of the applicant's reformation from the time of his offending. It was regarded by the full court as so complete there was no risk of him returning to his previous conduct.[26] In Pou v Waikato Bay of Plenty District Law Society the appellant had been the subject of misconduct at university, where he had admitted using the university computer system account of a supervisor and charged his own use to that account.7The amount involved was $15. In addition, he was found guilty of misconduct in relation to accessing adult websites on the university computer and was fined $300. He did not disclose these matters to the Law Society. Once again, there was6 Re Owen [2005] 2 NZLR 536 (HC).7 Pou v Waikato Bay of Plenty District Law Society HC Rotorua CIV-2004-463-511, 10 May 2005.considerable evidence of a reformation for the court to conclude that he had satisfied the test of good character and was a fit and proper person to be admitted.[27] There have been three cases known to counsel since the commencement of the Lawyers and Conveyancers Act 2006 dealing with opposed admissions. Only two are relevant to the present situation. In Re Burgess the applicant had, four years prior to his application, been convicted on six charges relating to welfare or benefit fraud from which he had received approximately $14,000 to which he was not entitled.8 He was repaying that amount at the time of his application. The court found that:(a) the offending was more serious than a single youthful indiscretion;(b) there was no suggestion of any offending since early 2004 and a period of seven years had elapsed by the time of the hearing;(c) the applicant had acknowledged his offending at the outset of the application process and made a full disclosure; and(d) he was making an honest attempt to reply the debt.[28] The court considered that the applicant had learnt his lesson and that the"frailty or defect is now spent". The application was granted.[29] The second case, re Gazley was decided on the papers and again, although it bears some similarity to the instant case because of the way it was determined, does not give direct assistance.9 Mr Gazely was involved in a single incident of joint work with another student. His indiscretion was discovered. A penalty was imposed, which included a written warning and a reduction of the marks for the particular assignment from 74% to 50%. The deputy-dean of the law school described the behaviour as serious and unable to be condoned, but added that it was not done as a sinister intention to deceive. As already recorded, the matter was determined on the papers.8 Re Burgess [2011] NZAR 453.9 Re Gazley HC Wellington CIV-2011-485-1776, 26 October 2011.The conduct which is the reason for the opposition[30] The first incident occurred in 2008. It related to copying of work from different sources without full and accurate referencing of the source material. Itoccurred in a university paper described as "POLS 103/08B, International Relations". As a result, the applicant appeared before the University Students'Disciplinary Committee. A decision letter was issued, dated 18 November 2008, which has been produced. In it the applicant received a formal warning, a reduction in the grade given for the particular assignment and was required to consult a student learning support tutor. He was advised of his rights to appeal. He advised the court that he accepted the findings and the decision.[31] The second incident occurred in 2009. Once again, there was a hearing before the Student Discipline Committee and a decision letter was issued on 10 December 2009. That letter records that the particular assignment that was the subject of the plagiarism complaint was copied verbatim from websites in almost its entirety. It was a paper described as "PHIL – 106/109B, Social and MoralPhilosophy". The applicant received a formal warning. The paper was disallowed:that is, failed. He was required to provide a written undertaking to the secretary of the Student Discipline Committee concerning future compliance. He was also subjected to formal monitoring of his future assessments in the following terms:This means that the convenors of all of your future papers will be advised that you have two findings of misconduct for plagiarism, that you have given a written undertaking to be scrupulous in acknowledgement and citation in the future, and they will be asked to scrutinise your work carefully and if they find any incidence of plagiarism they will be required to refer this to the Secretary of the Student Discipline Committee. This provision is to remain in place for all future study.The decision recommended that he consult with an undergraduate advisor concerning his workload. He was advised that:any further findings of misconduct for plagiarism would be regarded as extremely serious and could result in a period of exclusion from the University.[32] The third incident occurred in 2012. Again, the matter came before the Student Discipline Committee. It found that an assessment had been predominantlycopied and pasted from a variety of sources which were neither acknowledged nor referenced correctly. The assessment was prepared for a university paper describedas "SOCY202-12A Popular Culture". The decision letter gave the applicant a formal warning. The particular work was failed. The decision required an undertaking to be given. It advised that there would be monitoring of future assessments. It notified him that convenors of all future papers will be advised that he had three findings of misconduct for plagiarism and that he had given a written undertaking to be scrupulous in acknowledgement and citation in the future. Such persons were to be asked to scrutinise his work carefully and were required to refer it to the Secretary of the Student Discipline Committee if there was any incidence of plagiarism discovered.[33] In relation to the fourth and fifth incidents, the applicant was found to havecopied another trainee's work on two separate occasions as documented in a letterdated 5 June 2012 from the National Director of the Institute of Professional LegalStudies. It included an instance of copying during the applicant's course work on the topic of professional responsibility. The director's conclusion contained in the letter addressed to the applicant was:I have carefully considered your response prior to making my decision. You give as a reason for your actions, the fact that you were in effect prioritisingyour masters' papers over the IPLS work you were doing. Frankly, I don'taccept this in any way as a justification for your action and I am pleased you start off by saying that you are not trying to justify it. You enrolled in the IPLS course knowing full well that you were also studying. Once you realised that your workload was too high you clearly should have asked to transfer your course to another more convenient time. We allow this and it is made very clear to trainees that it is an option. However, you chose not to do this and instead put yourself in the situation where you were under pressure of time and workload. You made the decision to cut corners and you did this with full knowledge of the consequences that were possible.I don't accept that you in any way would act differently should the situationhappen again. Your actions in repeating the same conduct when advised against it and your lack of any remorse when discussing the situation with your instructor leads me to believe that you are not ready for the rigours and moral courage required for the practice of law. As such your grade of NYC for PR is confirmed. At this stage, I am not willing to allow you a further opportunity to sit a supplementary assessment.[34] To the applicant's credit, he acknowledged his shortcomings in all fiveincidents and advised the court that he regretted his actions and said that he had certainly learnt his lesson.The applicant's references[35] The applicant has produced three character references. Whilst they are important for what they say, and although in two of the cases there is some referenceto the applicant's difficulties over plagiarism, I am not satisfied that the referees had the benefit of full understanding of the applicant's position. One of the refereescame from a District Court judge, whose opinion this court certainly values. When asked whether the judge was made aware of the problems with the university, the applicant acknowledged that the judge had not been. An important piece of information that should have been disclosed to the judge when the reference was sought was not given. If the references were to have any real value I would have expected them to have been given against a full knowledge of the plagiarism findings that exist in this case.Analysis[36] In the past one might make allowances for the applicant's conduct during thetime of his studies and when he was clearly under pressure. I am not satisfied that he has displayed to the court a change in his attitude in a way where the court can have confidence that in the future he will display the utmost honesty and integrity that is required for a barrister and solicitor of the High Court.[37] It is for the applicant to establish that he is of good character and is a fit and proper person to be admitted as a barrister and solicitor. The court is concerned about the applicant's performance in the future. The function of the court is not topunish the applicant for his past conduct. There is a repeated pattern of plagiarismculminating in the applicant's actions with his legal professional studies. I acceptMr Collins submissions that this is an aggravating feature because it occurs as part of the steps that the applicant was taking with a view to commencing practice in the law. These recent events distinguish his position from those cases that I have analysed where applications have been granted after a period of reform on the parton the applicant has been proven. There is, here, no evidence that he has changed his ways. There is no evidence of support from his recent employers or from those whom he has been associated with in his employment work. I am concerned there has not been a full disclosure to those who he invited to complete references for the purposes of this application.[38] I simply have no independent verification that the applicant will not, in the future, be tempted to fall into dishonest practises, or that he can be trusted to cope with the pressures and, perhaps even, the temptations that the type of work that he will encounter as a lawyer, should he be admitted.[39] This is not to say that the position is irretrievable. It is over to the applicant to conduct his present life in a way that discloses that he acknowledges the importance of being a trustworthy and honest person, in whom both the public and the court can be satisfied that he will attain the standards required of a person to be admitted as a barrister and solicitor.[40] The court certainly hopes the applicant has learnt his lesson from his past indiscretion and now knows what is required of a person who seeks admission as a barrister and solicitor. He should be encouraged to discuss his position with the Law Society and a legal practitioner so that, after an appropriate period, if his track record justifies it he may succeed in obtaining a certificate from the law society as to character so that an application for admission can proceed.Conclusion[41] The application for admission is refused.Costs[42] The applicant's financial position is not strong having regard to the fact thathe has been a student and has had difficulty in obtaining employment. I make no order for costs because I do not want to see any impediment to his taking theopportunity of establishing a good track record and at some later stage renewing his application for admission as a barrister and solicitor.____________________Faire J