Barrister does a bit of work without a ticket … Forgets just how many jobs were involved … Tells pork pies to the bar council … Disgraceful … Judge claims that practising certificates “protect the public” … Law graduate strikes Top End admission problem as a result of a copy and paste approach to assignments … Unintentional plagiarising … Forgets to be full and frank … Kate Lilly reports
A NSW barrister who worked for seven months without a ticket has been struck from the jam roll.
Christopher Dwyer surrendered his practising certificate in 2013, after which he continued to work, collected $22,240 in fees, and made a number of misleading statements to the council of the NSW bar n grill.
On September 30, the Court of Appeal found Dwyer guilty of professional misconduct, not a person of good fame and character, and not fit and proper enough to remain on the roll.
Justice Arthur Emmett delivered the judgment with a sound scolding, observing that Dwyer’s misconduct “[struck] at the heart of the obligation of candour that is expected of a legal practitioner”.
Dwyer surrendered his practising certificate on March 18, 2013. Between March and October, he conducted legal work on seven matters – including two ongoing briefs and five (possibly) new cases.
During this period, Dwyer continued to describe himself as a “barrister” or a “barrister-at-law.” He also accepted instructions from solicitors and used “chris.dwyer@counsel.net.au” in his email correspondence.
Emmett agreed that Dwyer had conducted himself as a barrister in each of the seven matters and was in breach of the licensing provision of the legal profession legislation
Dwyer told a number of pork-pies to the bar council between March 2013 and February 2014. These included:
Emmett observed:
“Mr Dwyer had performed that work and received fees only a short time before making the statutory declaration. He must be taken to have been aware of all of those matters when he made the declaration. It is therefore difficult to avoid the conclusion that the statutory declaration was deliberately false.”
In December, Dwyer was invited to comment on an adverse finding that he had practised law after March 18. The council had discovered just one matter, a case called Lord v McMahon. Dwyer addressed this case work, but failed to disclose his other briefs.
In January 2014, Dwyer made a submission in response to the council’s complaint. He wrote:
“Apart from working on Mrs Lord’s matter as required, I did not seek work as a legal practitioner, nor did I hold myself out as a legal practitioner.”
Dwyer eventually provided the bar with St George Bank statements, which revealed deposits relating to his other legal jobs. St George also provided a letter Dwyer had sent them, in which he described himself as a self-employed barrister. Dwyer provided his own copy of the letter to the council – but omitted this crucial work description.
Emmett was getting increasingly grumpy:
“Mr Dwyer has proffered no explanation for the differences between the version of the letter that he produced to the council and the version of the letter produced to the council by St George Bank. The only inference that can be drawn is that Mr Dwyer took deliberate steps to mislead the council by producing to it a version of the letter that did not refer to matters of which the council was not already aware.”
Weighing up these little slips, Emmett concluded that Dwyer was not a fit and proper person to remain on the roll.
Ultimately, Dwyer offered little in the way of resistance, having already consented to the substantive orders.
Emmett topped off his short judgment with a stern lecture about professional rectitude:
“Mr Dwyer’s conduct in contravening the Legal Profession Act and in misleading the council is conduct that would be regarded as disgraceful and dishonourable by his peers. Engaging in legal practice without a practising certificate undermines the system of regulation of Australian legal practitioners, the principal objective of which is to protect the public. The conclusion is inevitable that Mr Dwyer knowingly endeavoured to circumvent that system, exposing his clients to unacceptable risks …
Mr Dwyer’s conduct demonstrates a disregard for the law and a pattern of dishonesty. It is not the conduct of a person who is a fit and proper person to remain on the Supreme Court roll.”
Dwyer was ordered to pay the grill’s costs.
Council of the New South Wales Bar Association v Dwyer
A NT law graduate who used “copy and paste” to complete an assignment will have a second chance at admission.
Joy Onyeledo was pulled-up twice for academic misconduct while she was studying at Charles Darwin University.
The NT Supremes found Onyeledo had not made a full and frank disclosure of her plagiarism.
Justice Judith Kelly ordered a six months adjournment, to allow Onyeledo to acquire “the requisite understanding of her ethical obligations in relation to plagiarism and in relation to making full and frank disclosure of relevant matters to the court”.
Onyeledo applied for admission to the NT Supreme Court in July last year. On the same day, she disclosed two findings of academic misconduct that had been made against her.
The first incident related to an assignment in her Trusts subject. The lecturer had provided a sample answer to assist students with one of the questions. Amazingly, Onyeledo submitted the sample answer verbatim.
In her affidavit, she explained that a friend had told her the sample answer was for students to use, and that the lecturer had instructed them not to reference his own material.
It was later pointed out to her that the lecturer had expected students to write the answer in their own words.
On the second occasion, Onyeledo received a zero for an assignment in Indigenous Peoples and the Legal System.
Her lecturer discovered that most of her assignment was based on another author’s original work – from which she had quoted extensively, without proper referencing. In fact, the paper had a 90 percent similarity rating.
Onyeledo said:
“I explained to the board that I wasn’t familiar with the law referencing style, and that I was under pressure as the assignment was due to be submitted alongside other assignments.”
In a second affidavit, filed two days later, she explained further:
“Plagiarising in these two units was not intentional. It was a big mistake that I deeply regret. I did not do my research properly, I was ignorant of the law referencing style and, I also struggled a lot with paraphrasing as English is not my first language. I’m aware that ignorant is not an excuse in law, I have learnt my mistakes I promise it will never happen again.”
The Legal Practitioners Admission Board referred the matter to the Supreme Court on December 9 last year. After this, Onyeledo filed yet another affidavit, in which she provided further details of her circumstances. In relation to her “Indigenous Peoples” assignment, she explained it had been her intention to paraphrase the direct quotes.
“At that time, I was undertaking 4 units and working part-time to partly support myself. Throughout my undergraduate time I was undertaking work with teenagers with challenging behaviour and people with disabilities for Life Without Barriers.
That assignment was due at about the same time as a number of other assignments, putting significant pressure on me to complete them all. As a first draft of this assignment, I cut and pasted material from various sources, with the intention of then paraphrasing the content into my own words … It was never my intention to claim the work of the sources as my own.”
In court, the Northern Territory Law Society raised a number of concerns in relation to the “Indigenous Peoples” assignment, including:
The law society submitted Onyeledo “had not been full and frank in her initial disclosure” and this behaviour indicated a “reckless laxity of attention to necessary principles of honesty”. Accordingly, she was not a fit and proper person for admission.
Justice Kelly was “not convinced” that Onyeledo had made a full and frank disclosure to the board or to the court and that she was not a fit and proper person for admission.
Nonetheless, HH was prepared to make a kind assessment of Onyeledo’s conduct:
“In my opinion, the applicant has not made a deliberate attempt to conceal the specifics of her academic misconduct from the board or the court …
I consider it likely that the initial inadequacies in disclosure were not, as the law society submitted, indicative of ‘reckless laxity of attention to necessary principles of honesty’, but rather reflect a lack of understanding of the stringent nature of her obligation of disclosure to the board and to the court.”
Kelly also accepted that Onyeledo had not intended to pass off the work as her own. HH observed the “Indigenous Peoples” assignment had contained references to the sources that were quoted, “albeit woefully inadequate ones”.
HH explained:
“I consider it more likely than not that the applicant’s academic misconduct is attributable to her poor grasp of essay writing and referencing skills and, as she deposed, to her running out of time and submitting an assignment that was essentially incomplete.”
Kelly observed that “courts must guard against those who do not demonstrate that they can appropriately and honestly reference their sources”.
HH recommended that Onyeledo undertake a further course on legal ethics before reattempting admission.
“Correct referencing is essential to the ability of courts and academic institutions to test arguments and verify sources, as well as demonstrate that people have honestly declared work that is not their own and attributed it to the original source … If applicants were not required to demonstrate these skills, the ability of courts and academic institutions to function would be severely hindered.”
Kelly ordered the proceedings to be adjourned for at least six months – to allow Onyeledo to demonstrate “the requisite insight into legal citation, referencing, and plagiarism”.