Legal Profession Act 2004 s.4.4.17; deliberate plagiarism; legal practitioner guilty of professional misconduct being misconduct at common law; practising certificate cancelled.

Michael Keith McGarvie, Legal Services Commissioner

Legal Services Commissioner v Keough (Legal Practice) [2010] VCAT 108

1. The principal registrar is to amend the records of the Tribunal to show the applicant as "Michael Keith McGarvie, Legal Services Commissioner".
2. The Tribunal finds the respondent guilty of professional misconduct, also known as misconduct at common law, in that he submitted a research paper that contained deliberate plagiarism for assessment in a subject when seeking a degree of Master of Health and Medical Law at the University of Melbourne.
3. The Tribunal finds the respondent guilty of professional misconduct, also known as misconduct at common law, in that he submitted an article that contained deliberate plagiarism for publication in the Journal of Law and Medicine.
4. Subject to the following paragraph, the practising certificate currently held by the respondent is cancelled. The respondent is not to be granted another practising certificate that comes into operation before 1 October 2010.
5. The respondent may apply in writing to the Tribunal by 12 February 2010 to be heard as to the date upon which the six months period of disqualification is to commence.
6. The respondent is to pay the applicant's costs of this application, calculated on a party/party basis on County Court scale "D". The Tribunal certifies that it was reasonable for the applicant to engage counsel. The applicant is to prepare a bill of costs in taxable form. In the absence of agreement as to the amount of the costs, the costs are to be assessed by the Costs Court.

CHARGES BROUGHT BY THE LEGAL SERVICES COMMISSIONER:

1. Mr. Keough is an Australian legal practitioner. He pleaded guilty to two charges of professional misconduct brought against him by the Legal Services Commissioner. The charges arose out of a complaint lodged with the Commissioner by Dr. IRL Freckelton SC, a member of the Victorian Bar. Dr. Freckelton made the complaint in his capacity as editor of the Journal of Law and Medicine.
2. The first charge was that Mr. Keough was guilty of professional misconduct, being misconduct at common law, in that he submitted a research paper that contained deliberate plagiarism for assessment in a subject when seeking a degree of Master of Health and Medical Law at the University of Melbourne. The second charge was that Mr. Keough was guilty of professional misconduct, being misconduct at common law, in that he submitted an article that contained deliberate plagiarism for publication in the Journal of Law and Medicine.
3. Misconduct in a professional capacity, often described as misconduct at common law, has been defined consistently for many years as conduct in a professional capacity which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 where the definition was formulated in a case involving a medical practitioner; Re a Solicitor: ex parte The Law Society [1912] 1 KB 302 where the definition was adopted in a case involving a solicitor; Myers v Elman [1940] AC 282 where the definition was approved by the House of Lords and Grahame v AG of Fiji [1936] 2 All ER 992 where the definition was approved by the Privy Council; and Re a Solicitor [1960] VicRp 96; [1960] VR 617 where the definition was applied in Victoria.
4. Misconduct at common law continues to apply to Australian legal practitioners by virtue of the word "includes" in the definition of 'professional misconduct' in s.4.4.3(1) of the Legal Profession Act 2004.

1. Mr. Keough gave evidence that he is a sole practitioner who practises from his place of residence. He does not have any staff, but his wife assists him in his practice.
2. He said that his main area of practice is family law. He also handles criminal law cases and does some conveyancing. He has a great interest in health and medical issues, particularly as they relate to children. He tendered his curriculum vitae, which showed that he has published one book and a large number of articles, mainly in his field of interest.
3. Mr. Keough commenced a Masters' Degree in 2003. He was required to submit eight research papers of 10,000 words, two each year for four years. The research paper that gave rise to the first charge was submitted in May 2005.
4. He explained the method that he adopts to write research papers. He said that he collects articles relevant to his topic, usually from the Supreme Court library rather than the internet. He said that he photocopies the articles, and then uses the articles as the basis for his own paper. He described this step as the first stage.
5. In the second stage, he incorporates his own views. In subsequent stages he develops his own views and generally refines his paper. He then dictates the paper, has it typed, and finalises the paper.
6. Mr. Keough said that he changed the topic of his paper about four weeks before it was due for submission in May 2005, leaving himself with the almost impossible task of completing the paper on time. Mr. Keough said that he had a large amount of work in his practice at the time, that he was required to prepare and attend a meeting of the Human Research Ethics Committee at Austin Hospital of which he was a member, and that he had family obligations which made the task even more difficult.
7. Counsel for Mr. Keough accepted that about 50% of the paper submitted by Mr. Keough was extracted, first, mainly from an article by Michelle Oberman and Joel Frader entitled Dying Children and Medical Research: Access to Clinical Trials as Benefit and Burden which had been published in the American Journal of Law and Medicine in 2003 and, secondly, to a much lesser extent from an article by Lainie Friedman Ross entitled Children in Medical Research: balancing protection and access: has the pendulum swung too far? which had been published in the Autumn 2004 edition of Perspectives in Biology and Medicine.
8. Comparisons of both articles with Mr. Keough's paper were annexed to the charge brought by the Commissioner. The comparisons showed that the extracts were copied exactly, or with slight amendments. Mr. Keough's paper did not attribute the extracts to Ms Oberman and Mr. Frader, or to Ms Ross. Indeed, his paper did not mention them or their articles.
9. Mr. Keough said that he did not set out to plagiarise. He said that, when he submitted the paper, he did not appreciate the extent of his plagiarism. He said he now accepts that he did not get far past the first stage of his process for writing research papers.
10. Mr. Keough gave evidence that he received a good mark for his paper. This encouraged him to submit his paper for publication in the Journal of Law and Medicine. It was accepted for publication, and published at (2006) 13 JLM 370.
11. On 3 October 2007, in his capacity as editor of the Journal of Law & Medicine, Dr. Freckelton sent an email to Mr. Keough. The email stated that the attention of Dr. Freckelton had been drawn to similarities between the Oberman & Frader article and the article by Mr. Keough published in the Journal of Law & Medicine. The email requested "your urgent response about the level of similarity".
12. Mr. Keough responded on 8 October 2007. His response included the following passages:

"I used the article by Oberman and Frader as a basis for my paper, however, I did not adopt the paper as my own. I did include a lot of other material in my paper that was not included in the article written by Oberman and Frader. I had put my own interpretation on the material.

after having re-read both papers, I realise that I had not properly adhered to footnoting standards in a few places in the paper, which should have been acknowledged.

I can assure both yourself and Thomson [publisher of the Journal of Law and Medicine] that it was not my intention to plagiarise the work of Oberman and Frader and I apologise to yourself, Thomson and Oberman and Frader for any embarrassment or difficulties which may have arisen as a consequence."

1. Mr. Keough acknowledged in cross-examination that to say that he "had not properly adhered to footnoting standards in a few places" was an understatement, as his article substantially plagiarised the Oberman and Frader article.
2. Mr. Keough was asked in cross-examination why his response to Dr. Freckelton did not mention the article by Ross. He answered that Dr. Freckelton had enquired only about the Oberman and Frader article.
3. Dr. Freckelton sent another email to Mr. Keough on 10 October 2007. Dr. Freckelton alleged for the first time that "It is also apparent that you have made major and inappropriate use of another published article ... without any ascription to it, although not to the same degree, namely, that of LF Ross ...". The email concluded by informing Mr. Keough that Dr. Freckelton was in the process of notifying the Legal Services Commissioner about Mr. Keough's conduct. The complaint by Dr. Freckelton to the Legal Services Commissioner, also dated 10 October 2007, is in evidence.
4. The then Legal Services Commissioner wrote to Mr. Keough on 29 October 2007. She enclosed a copy of the complaint, and sought a full written explanation of Mr. Keough's conduct in relation to the subject matter of the complaint. The written explanation provided by Mr. Keough on 7 December 2007 included the following passages:

"I acknowledge that there is substance in Dr. Freckelton's complaint. My paper ... contained material taken from the paper by Oberman & Frader and also material taken from a paper by Lainie Friedman Ross ...

My behaviour in respect of the paper, the subject of the complaint, is aberrant in as much as it is behaviour which has not occurred in relation to any of over forty papers presented or published by me.

Since I was endeavouring to cover an area which was a composite of that dealt with by Oberman & Frader and by Ross, I used their work extensively for the purposes of preparing what was intended as a rough draft. Unfortunately, when the draft was printed and I was running out of time, I used the draft as the paper submitted.

At the time I wrote my paper I was conscious that I had made significant use of the work of others without acknowledging the source; strangely when I submitted the paper to the Journal of Law and Medicine I was not, or was no longer, conscious of the extent to which I had done so."

1. Mr. Keough's explanation also referred to mitigating factors, being the same factors about which he gave evidence at this hearing, namely the change of topic for his research paper, a large amount of work in his practice, preparation for and attendance at a meeting of the Human Research Ethics Committee at Austin Health, and family obligations. In cross-examination, Mr. Keough accepted that he did not have the same time pressures when he submitted his article for publication.
2. Mr. Keough said that he enjoyed his work on the Ethics Committee at Austin Health but, when his term on the committee expired, he was asked not to re-apply.

1. Mr. Keough produced testimonials as to his character given by Ms J. Dixon SC, Ms. M. Taaffe and Ms C. Ben-Simon all of counsel; Ms L. Holt, a psychologist; and Mr. Solon Solomon, a Detective Sergeant of Police attached to the Homicide Squad. Detective-Sergeant Solomon also attended and gave character evidence. The testimonials, stated in summary form, were to the effect that Mr. Keough is conscientious, courteous, diligent, honest and of good reputation. All but one of the testimonials stated that the conduct of Mr. Keough was "out of character".
2. Mr. Keough also tendered a copy of the foreword to his book Child Representation in Family Law, published in 2000. The forward was written by Justice Mushin of the Family Court of Australia. The foreword said of Mr. Keough that "As a result of hard work, extensive research and the application of an ordered mind, he has, through this book, achieved a most worth while goal in the constant efforts to improve the interests of children who are going through the trauma of the breakdown of the relationship of their parents or other loved ones and have become the unwitting subjects of the wars raging around them".
3. Mr. Keough also tendered a thank you note written to Mr. Keough by Justice Kay of the Family Court on the occasion of his Honour's retirement. The note states that "I quickly learnt that if a file had your name on it the case would be properly prepared & presented."
4. Evidence was given by Mr. Keough's wife, Mrs Kelly Keough. Mrs. Keough said that her husband's conduct on this occasion was "out of character". She said that her husband is a man of the highest integrity and honesty.

THE SUBMISSION MADE ON BEHALF OF THE LEGAL SERVICES COMMISSIONER:

1. Counsel for the Commissioner submitted that the power of the Tribunal to make orders is primarily protective, but also serves a punitive function: Hanneberry v Legal Ombudsman [1998] VSCA 142 @ [22]; and Quinn v Law Institute of Victoria [2007] VSCA 122 @ [30].
2. Counsel submitted that the practising certificate held by Mr. Keough should be cancelled for 12 months.
3. He submitted that the extent of the plagiarism was so extensive that it must have been deliberate, as the guilty plea by Mr. Keough indicated. It was not an oversight involving a failure to attribute the work of others by inserting footnotes.
4. Counsel submitted that, shortly before Mr. Keough submitted his research paper to the University of Melbourne, Mr. Keough must have realised that the paper contained a large amount of plagiarised material. He submitted that Mr. Keough should have sought an extension of time to lodge his paper. If an extension was not granted, Mr. Keough should have withheld his paper and failed the subject.
5. Counsel referred to the explanation given by Mr. Keough to the Legal Services Commissioner concerning submission of the paper to the Journal of Law and Medicine. The explanation was that "strangely" when the paper was submitted for publication Mr. Keough was no longer conscious of the extent to which the paper made significant use of the work of others. Counsel submitted that the explanation was implausible, considering the relatively short period of time between submission of the research paper to the University of Melbourne in May 2005 and submission of the same paper to the Journal of Law and Medicine in November 2005.
6. Counsel for the Commissioner referred to the case of Michael Henry Pickering, a decision of the Solicitors' Board, No. 746 of 1991, given on 6 February 1992. Dr. Pickering was found guilty of three charges of misconduct in a professional capacity. Misconduct in a professional capacity in Dr. Pickering's case, and professional misconduct being misconduct at common law in the present case, are defined in identical terms and therefore relate to misconduct of the same kind.
7. Dr. Pickering published three articles, hence three charges. The first charge related to a paper prepared by Dr. Pickering entitled The Modern Relevance of Environmental Risk. Dr. Pickering spoke to the paper at a seminar, and distributed copies of the paper to those who attended the seminar. The Solicitors' Board found that at least 90% of the paper had been copied, with minor alterations, from a two-part article entitled Insurance of Environmental Risks written by Mr. R.S. Ashton and published in the Insurance Law Journal Volume 4, Numbers 5 & 6. Dr. Pickering did not attribute any part of his paper to Mr. Ashton.
8. The second charge related to a paper prepared by Dr. Pickering entitled Implications and ramifications of ISR wording variations and some side-effects of the Newcastle Earthquake - an overview. Dr. Pickering presented the paper at a seminar organised by the Australian Insurance Institute, and it was published in the Australian Insurance Institute Journal in October 1990. The paper included a section containing five paragraphs headed Insuring Against Earthquakes. The Solicitors' Board found that the five paragraphs, with minor amendments, were copied from an article entitled Earthquakes in Australia: Before Newcastle written by Mr. J.L. Irish and published in the Australian Insurance Institute Journal in February/March 1990. Dr. Pickering did not attribute any part of his paper to Mr. Irish. The Board accepted that the words copied by Dr. Pickering "formed a relatively small part of his whole paper".
9. The third charge related to an article prepared by Dr. Pickering entitled He who pays the piper, which was published in the Law Institute Journal in January/February 1991. The article was almost identical to an article with the same title written by Professor Roger Fisher, published in the Harvard Business Review, 64:2 March/April 1985. Dr. Pickering did not attribute any part of the article that he submitted to the Law Institute Journal to Professor Fisher. The Board found that "Dr. Pickering attempted to "pass off" Professor Fisher's article as his own work".
10. The Solicitors' Board cancelled Dr. Pickering's practising certificate from 27 February 1992 until 31 December 1992, a period of 10 months. The submission made on behalf of the Legal Services Commissioner that Mr. Keough's practising certificate should be cancelled for 12 months was based to a significant degree upon the order made in Dr. Pickering's case.
11. The Solicitors' Board in Dr. Pickering's case said @ 14 that "Upon analysis, the copying of articles written by another without acknowledgement of that other's authorship is, in the ultimate, directed either to self aggrandisement or to the enlargement of the professional practice of the author by the holding out of learning and competence." Counsel for the Commissioner contended that Mr. Keough, in submitting his research paper to the University of Melbourne sought to obtain a degree of Master of Health and Medical Law and thus promote himself as having expertise and knowledge in a field of legal practice. Counsel further contended that publication of the paper as an article in the Journal of Law and Medicine enhanced Mr. Keough's professional reputation.
12. Counsel for the Commissioner referred to two decisions of the Queensland Court of Appeal. In Re: AJG [2004] QCA 88 an applicant for admission as a solicitor of the Supreme Court disclosed a finding of academic misconduct. The finding was made because the applicant copied the work of another student when engaged in the Practical Legal Training course at Griffith University. The Court of Appeal was not satisfied as to the applicant's fitness for admission. After saying that "Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments", it adjourned the application for six months.
13. In Re: Liveri [2006] QCA 152 an applicant for admission as a solicitor had been found guilty of three counts of academic misconduct committed when studying for a degree in Law and Commerce at James Cook University. The findings arose out of assignments submitted in three subjects. In one assignment, she copied with minor adjustments an article from the internet, without attribution. In a second assignment, she quoted substantial commentary by Professor Sykes, without attribution. In a third assignment she quoted verbatim from a government publication, without attribution. The Court of Appeal found that the applicant lacked insight into the gravity of her conduct, and lacked fitness for admission. It adjourned the application to a date to be fixed, not within six months.
14. Counsel for the Commissioner submitted in substance that, if academic misconduct involving plagiarism can result in an applicant for admission being found not to be fit for admission, then plagiarism by a legal practitioner should result in a finding that the practitioner is no longer fit to practise. The outcome, according to the submission, is that the practising certificate held by Mr. Keough should be cancelled.

1. Senior counsel for Mr. Keough stated that Mr. Keough "did not set out to plagiarise, but plagiarise he did".
2. He said that Mr. Keough has shown remorse. He pointed out that Mr. Keough made significant admissions at an early stage, and had pleaded guilty to the charges.
3. He said that no client of Mr. Keough had suffered loss. He acknowledged that Mr. Keough had caused embarrassment to the supervisor of his research paper, to Dr. Freckelton and to the publisher of the Journal. He added that Mr. Keough had apologised to them and to Oberman and Frader, although not to Ross.
4. Senior counsel submitted that there was no need for specific deterrence, as Mr. Keough already had been deterred by a decline in his professional reputation, by the shadow that now hangs over his publishing career, by his inability to continue to serve on the Ethics Committee at Austin Health, and by the financial consequences of the present proceedings.
5. He sought to distinguish Dr. Pickering's Case on the basis that it involved three instances of plagiarism, on different topics, committed over a longer period of time.
6. He sought to distinguish Laveri's Case on the basis that Mr. Keough was insightful as to the consequences of his misconduct. This was demonstrated, he said, by Mr. Keough's admissions, by Mr. Keough's appreciation that he had caused embarrassment to others, and by his apologies.
7. Senior counsel submitted that Mr. Keough's practising certificate should not be cancelled. He said that Mr. Keough was admitted to practice in 1985, and had not previously been found guilty of a disciplinary offence. He referred to the character evidence. He stated that cancellation of Mr. Keough's practising certificate would have adverse consequences for Mr. Keough, his family, his staff, his clients and the community he serves.

1. The Tribunal accepts most of the submissions made on behalf of the Commissioner.
2. Mr. Keough was required to submit a research paper to the University of Melbourne by a date in May 2005. The Tribunal has no reason to doubt the evidence of Mr. Keough that he did not set out to plagiarise. The Tribunal finds, however, that in the weeks leading up to the date for submission of his paper, first, Mr. Keough found himself with insufficient time to complete his paper by the due date; secondly, that Mr. Keough made a conscious decision to submit a research paper which included a large amount of plagiarism; and, thirdly, as Mr. Keough admitted, he submitted the plagiarised paper by the due date.
3. If Mr. Keough was unable to complete his paper on time, the proper course was either to seek an extension of time or not to submit a paper and therefore fail the subject.
4. The Tribunal does not accept the evidence of Mr. Keough that "strangely", when he submitted his paper for publication in the Journal of Law and Medicine, he was not aware, or no longer aware, of the extent to which he had made use of the work of others without acknowledgement. The Tribunal regards that evidence as implausible, in view of the relatively short period of time between submission of the paper to the University in May 2005 and to the Journal in November 2005.
5. The comments of the Solicitors' Board in Dr. Pickering's Case @ 14 that "the copying of articles written by another without acknowledgement of that other's authorship is, in the ultimate, directed either to self aggrandisement or to the enlargement of the professional practice of the author by the holding out of learning and competence" have application in the present case.
6. The Tribunal considers that Dr. Pickering's Case provides guidance to the Tribunal as to the orders to be made in the present proceedings.
7. Dr. Pickering's Case and the present case have much in common. In Dr. Pickering's Case, the Solicitors' Board remarked @ 14 that "The Board does not believe that a solicitor of the academic standing and experience of the solicitor in this case, who is the author of many published articles and the holder of many degrees and other qualifications in various fields, could fail unintentionally, when copying substantial portions of the work of others, to include a proper attribution of the authorship and also to seek permission for the use of such work for his own purposes". Those remarks are apposite in the present case.
8. On the other hand, there are significant differences. Dr. Pickering set out to plagiarise, whereas the Tribunal has no reason to doubt that Mr. Keough did not set out to plagiarise. Also, Dr. Pickering's plagiarism was more extensive than that of Mr. Keough.
9. The Tribunal also is influenced by the decisions of the Queensland Court of Appeal in Re: AJG and Re: Liveri, where plagiarism caused the Court of Appeal to take strong measures against law graduates who had yet to be admitted to practise as solicitors. The Tribunal acknowledges that Ms Liveri was found to have lacked insight into the gravity of her conduct, unlike Mr. Keough.
10. The Tribunal takes account of the fact that Mr. Keough made admissions at an early stage; that he admitted both charges; and that this is the first time, since he was admitted to practise in 1985, that he has been found guilty of a disciplinary offence.
11. The Tribunal considers that, in relatively small measure, it should take into account a need for punishment and a need for specific deterrence. The need for general deterrence is much greater. To repeat what was said in Re: AJG, "Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments".
12. The character evidence is accepted by the Tribunal, without hesitation. It also accepts that Mr. Keough has exhibited remorse, and that he is aware of the embarrassment caused to others. The Tribunal acknowledges that Mr. Keough has apologised to those affected, other than Ms Ross. It also acknowledges that cancellation of Mr. Keough's practising certificate would adversely affect his family, his staff and some of his clients.
13. Having taken all of these factors into account, the Tribunal will deprive Mr. Keough of a practising certificate for six months. Subject to what appears in the following paragraph, there will be orders that his current practising certificate (which otherwise would expire on 30 June 2010) is cancelled as from 1 April 2010, and that he not be granted another practising certificate that comes into operation before 1 October 2010.
14. As Mr. Keough has not had an opportunity to address the Tribunal as to the date from which his practising certificate is to be cancelled, Mr. Keough may apply in writing to the Tribunal by 12 February 2010 to be heard as to the date upon which the six months period of disqualification is to commence.
15. The Tribunal will not impose a fine, as deprivation of his practising certificate will impose a significant financial penalty upon Mr. Keough.

1. Counsel for the Commissioner sought an order that Mr. Keough pay the Commissioner's costs of the proceedings. The Tribunal is obliged to make such an order in the absence of "exceptional circumstances": clause 46D of Schedule 1 to the Victorian Civil & Administrative Tribunal Act 1998. Senior counsel for Mr. Keough did not contend that there were exceptional circumstances.
2. Mr. Keough is to pay the Commissioner's costs of this application, calculated on a party/party basis on County Court scale "D". The Tribunal certifies that it was reasonable for the Commissioner to engage counsel. In the absence of agreement as to the amount of the costs, the costs are to be taxed by the Costs Court.