COMPLAINTS AND DISCIPLINARY ACTION Flashcards
1
Q
WHAT CAN SANCTIONS INCLUDE
A
- s.302: Decisions of Disciplinary Tribunal
an order recommending that the name of the practitioner be removed from the roll
an order that a practicing certificate be suspended for a specified period or cancelled
an order that a practicing certificate not be granted to the practitioner before the end of a specified period
specified conditions be imposed on the practitioner’s practicing certificate
an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner
Fines (up to $100,000 - for professional misconduct)
Compensation orders
Supervision/management/orders
Further legal education
2
Q
CONDUCT CAPABLE OF CONSTITUTING UPC OR PM
A
- s.298: Conduct capable of constituting unsatisfactory professional conduct or professional misconduct
› conduct consisting of a contravention of the conduct rules
› charging of excessive legal costs in connection with the practice of law;
› conduct in respect of which there is a conviction for a serious offence, a tax offence, or an offence involving dishonesty
› insolvency of a practitioner (becoming bankrupt)
› becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;
› conduct in failing to comply with an order of the Disciplinary Tribunal
› conduct in failing to comply with a compensation order made under this Act or a corresponding law
› a failure to comply with any requirement under the Law
› a contravention of any condition imposed under the law
3
Q
WHAT IS UPC
A
S.296: unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
4
Q
WHAT IS PM
A
- S.297(1): professional misconduct includes—
(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
(2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
5
Q
TYPES OF COMPLAINTS
A
- Civil / consumer complaints (costs disputes less than $100,000 and financial loss)
› LPULAA s269 and s291 - Disciplinary matter
› LPULAA s270
6
Q
JURISDICTION TO MAKE COMPLAINTS TO
A
- Court’s inherent jurisdiction
› Power to admit practitioners to practice
› Power to discipline those practitioners (including suspend from practice and punish financially)
› Di Suvero v Bar Association of New South Wales [2001] NSWADTAP 9 at [34] - Regulatory Body:
› In WA = Legal Practice Board
LPULAA Ch 5 gives authority to manage some complaints
7
Q
HOW TO MAKE A COMPLAINT
A
- Must be made to or by the designated local regulatory body
› LPULAA s267(1) - Must be in writing and MUST identify:
› Complainant
› Practitioner / law firm
› The alleged conduct
LPULAA s267(2) - Must be made within 3 years
› Costs complaint = 60 days
LPULAA s272
8
Q
WHAT HAPPENS ONCE COMPLAINT MADE
A
- Must be investigated
- Lawyer has a duty to cooperate with the investigation
- Rules of natural justice apply
› Right to know whats been alleged, and the substance of those allegations.
9
Q
OUTCOMES OF CONDUCT INVESTIGATIONS
A
- LPB can dismiss the complaint
- IF satisfied reasonably likelihood the lawyer could be found guilty of UPC only, but the lawyer is otherwise considered generally competent and diligent:
› By consent, the LPB can issue a reprimand, fine, compensation order or order lawyer to implement a certain practice
› Otherwise LPB must refer matter to State Administrative Tribunal
10
Q
SAT SANCTIONS/OUTCOMES
A
- SAT sanctions/outcomes:
› If satisfied of UPC or PM, SAT may issue a variety of sanction orders BUT cannot strike lawyer off;
› Can compile report with findings and recommendations and refer matter to the full bench of the Supreme Court
› Only Supreme Court can make Order to strike off lawyer.
11
Q
OUTCOMES OF COST INVESTIGATIONS
A
- If costs complained about <$100,000 (indexed) then LPB can deal with the matter
- LPB will assist the client & lawyers through a mediation / conciliation process (LPULAA s288)
- If unresolved = parties referred to relevant tribunal or the courts.
12
Q
TYPES OF MISCONDUCT
A
- Misconduct in the course of practice
› Basically everything covered in this. - Misconduct outside the course of practice
13
Q
EXAMPLES OF CONDUCT IN COURSE OF PRACTICE
A
- MISLEADING THE COURT (OR TRIBUNAL)
› Kyle v Legal Practitioners’ Complaints Committee (1999) WASCA 115 - DISRESPECTING THE COURT
› Council of the New South Wales Bar Association v Slowgrove [2009] NSWADT 150 - TRUST FUND IRREGULARITIES
› Clifton v Council of Law Society of New South Wales [2021] NSWSC 111
› Ex parte Macaulay (1930) 30 SR (NSW) 193 - OVERCHARGING
› Legal Services Commissioner v McDonald [2018] QCAT 82 - CONFLICTS OF INTEREST
› Both personal, and between current and previous clients.
› Law Institute of Victoria v Gough (unreported, SC(Vic), Hansen J, 10 February 1995)
› Zaicos v Law Institute of Victoria (unreported, SC(Vic), Nathan J, 19 July 1995) - BREACH OF CLIENT CONFIDENTIALITY
› Legal Practitioners Complaints Committee v Walton [2006] WASC 213
› National Standards Committee v Shand [2019] NZLCDT 2 - MISLEADING ANOTHER LAWYER OR A 3RD PARTY
› Council of the Law Society of New South Wales v Wilson [2015] NSWCATOD 93 - DELAY OR NEGLECT
› A Legal Practitioner v Law Society of Tasmania (2005) 13 Tas R 448
› Legal Practitioners Complaint Committee v Eley [2007] WASC 148 - DISHONEST OR FRAUDULENT CONDUCT
› Council of Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 - FAILURE TO PROPERLY SUPERVISE
› Legal Services Commissioner v Lamplugh (Legal Practice) [2012] VCAT 279
› Law Society of New South Wales v Foreman (1991) 24 NSWLR 238
› ASCR 37 –
A solicitor with designated responsibility for a matter must exercise reasonable supervision over solicitors and all other employees engaged in the provision of legal services for that matter
14
Q
CONDUCT CONSTITUTING UPC OR PM
A
S 298.
15
Q
CONDUCT OUTSIDE THE COURSE OF PRACTICE
A
- PERSONAL CONDUCT = PROFESSIONAL CONDUCT??
› A Solicitor v Council of Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1
CRIMINAL CONDUCT
› Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
Driving under influence/dangerous driving causing death - DQ while in jail. Could reapply when he was released
› Council of the New South Wales Bar Association v Franklin (No. 2) [2014] NSWCA 428
Rape of wife
Struck from roll.
› Law Society of South Australia v Rodda (2002) 83 SASR 541
Didn’t disclose one of his charges (which was eventually dropped) because he though it was going to get dropped. - Professional misconduct.
- MISLEADING A REGULATORY BODY
› Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 - TAX INDISCRETIONS
› Victorian Legal Services Commissioner v Henderson [2017] VSC 202
