How to fail an ethics exam

Regrettably, the standing of lawyers in the eyes of the community has taken a beating in recent years.  A series of high profile cases provide some justification for the community view. Judges have perjured themselves in order to avoid traffic infringement notices. Barristers have not paid their taxes, and re-arranged their affairs so as to enable them to lead extravagant lifestyles while crying poor to their trustee in bankruptcy. Personal injury solicitors have wickedly put their own interests ahead of the interests of vulnerable clients.  In each instance, the community quite rightly regards the individual practitioners as having fallen short of the ethical standards required of the legal profession.

It is difficult to know whether the individual practitioners involved had always lacked the ethical compass that should have prevented their fall over the precipice of disgrace, or whether circumstances in their lives led them along the treacherous path of self-interest.

One can be more confident in the case of Hendrick Jan van Es in saying that he was doomed from the start, having recently had his name removed from the Local Roll of Lawyers after he attempted to cheat whilst taking the Ethics Exam which was a pre-requisite for undertaking the Bar Course conducted by the NSW Bar Association.  The cheating was bad enough.  The dissembling after he was caught, the absence of candour to the Court of Appeal convened to consider his fate, and the failure to appreciate the need for professional advice, nailed the coffin firmly shut.

The judgment of the NSW Court of Appeal in Prothonotary of the Supreme Court of New South Wales v Hendrick Jan van Es [2014] NSWCA 169 calls for no summary.  It should be read in its entirety by all practitioners, not as a reminder that cheating on an ethics exam is probably not the wisest way to commence one’s career, but as a reminder that full and frank disclosure, and appreciation of one’s predicament, are important first steps in the process of remediation when one’s conduct falls short of that expected of the profession.

POSTSCRIPT:  Mr van Es has obtained registration of two trademarks seemingly directed towards the legal industry.  The device mark for the Barrister's Wig is the negative image of the avatar of this blog's Twitter account.