Failing the Duty of Candour: it’s the cover-up, not the Conduct
In 1977, George Lucas released his iconic film Star Wars and, almost overnight, created a legion of devotees whose dedication to the film and its mythology went well beyond the fanatical. When Lucas remastered and re-issued the film in 1997, he made many changes, but the one that rankled the millions-strong fan-base was changing a scene in which Han Solo confronts a bounty hunter.
In the original release, Solo shoots the bounty hunter straight out, but in the re-release Lucas edited the film so that the bounty hunter shoots first and then Solo kills him. It would appear Lucas was moved to do this to avoid the perception that Solo–who had become the series’ star–was a cold-blooded killer.
Lucas reckoned without the ire of his fans, who felt the edit disrupted the mythology of the film. His real mistake, however, was to insist that he always intended the bounty hunter to shoot first, despite all of the evidence being clearly to the contrary.
Lucas attempted to cover up his sanitisation of the film, and it has cost him ever since. A fan-based movement derides his cover-up, releases edited versions of the film to show Han shooting first and badgers him relentlessly to release the original version again. Most importantly, Lucas’ reputation with his own fans has been permanently sullied.
What has this got to do with ethics? Well, just like Star Wars fans, those assessing the fitness and propriety of lawyers to hold practising certificates are more interested in the cover-up than the conduct. When disclosing matters which may affect a solicitor’s fitness to practice, the duty of candour is paramount. Leaving out even a minor transgression can prove disastrous, and pose more of a threat to a practitioner’s practising certificate than the conduct itself.
This was graphically demonstrated in the recent New South Wales Civil and Administrative Tribunal decision of Council of the Law Society of New South Wales v Jaruwan Tangsilsat. [1] In that case, a failure to declare relevant material, despite being reckless rather than deliberate, resulted in a finding of professional misconduct.
The Respondent, Ms Tangsilsat, was both a solicitor and a migration agent, and while renewing her practising certificate on-line failed to disclose that she had been the subject of disciplinary proceedings brought by the Migration Agents Registration Authority (MARA). She testified that this was the result of not scrolling through the entire renewal form and so failing to read the provision requiring her to declare the disciplinary action.
The tribunal was very clear that the conduct with which it was concerned related only to the failure to disclose the disciplinary proceedings, not any consideration of the MARA action or the allegations on which they were based. The Tribunal noted (at paragraph 9):
“It is arguable that some of those matters might possibly be relevant to a consideration of the respondent’s fitness to practice as a legal practitioner. However, they do not form part of any of the allegations of misconduct made by the applicant in these proceedings and we do not take them into account in any way as forming the basis of any determination concerning the fitness to practice of the respondent.”
The tribunal determined that Ms Tangsilsat did not appreciate her obligation of candour, and noted (at 26) that the duty of candour was well recognised. The tribunal also cited heavily from the NSW Court of Appeal’s decision in in Prothonotary of the Supreme Court of New South Wales v Montenegro[2], which in turn cited the following from Re Hampton[3], where the court said that a failure to disclose the past:
“…demonstrates want of understanding of the high degree of trust which the court, of necessity, must repose in a person whom it endorses as a fit and proper person to practise the profession of solicitor.”
The tribunal went on the conclude, (at 30) that the respondent, “…did not fulfil her obligation of candour and thereby demonstrated a want of understanding of the high degree of trust which must repose in a person who asserts that she is a fit and proper person to practise the profession of solicitor”. The tribunal considered that this amounted to professional misconduct, and the matter was referred to a stage 2 hearing to determine the consequences of this finding.
The lesson for all practitioners is that the failure to disclose even a minor transgression may well constitute professional misconduct, and when applying for or renewing a practising certificate full disclosure is a must. If in doubt about the need to declare something, call the Ethics and Practice Centre; this is not something which solicitors can afford to get wrong.
George Lucas may well have tarnished his legacy with his fans, but it won’t stop him making films. For solicitors candour is an existential issue–we cannot be officers of the court without it.
[1] [2018] NSWCATOD 138 (20 August 2018)
[2] [2015] NSWCA 409.
