Disciplinary Matters Flashcards
295 Application of this Part
This Part applies to disciplinary matters.
296 Unsatisfactory professional conduct (UPC) - conduct; connection; competence
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
297 Professional misconduct (PM)
● (1) Includes:
○ (a) UPC where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; or
○ (b) conduct, whether occurring in connection with the practice of law or otherwise, 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.
S 298 Conduct capable of constituting unsatisfactory
professional conduct or professional misconduct
Without limitation, the following conduct is capable of constituting UPC or PM—
● (a) conduct consisting of contravention of this law, whether or not, (i) contravention is offence or punishable by PP order (ii) person has been convicted of offence in relation to contraction (iii) PP order has been made against person re: contravention
● (b) conduct consisting of contravention of Uniform Rules (which per s 420 include Legal Profession Conduct Rules, ie the Barrister’s Rules)
● (c) conduct involving Contravention of uniform legal profession act of another jurisdiction, whether or not person convicted
● (d) Charging more than a fair and reasonable amount for legal costs in connection with the practice of law
● (e) Conviction for (i) serious offence, (ii) tax offence (iii) offence involving dishonesty
● (f) conduct as or in becoming an insolvent under administration
● (g) conduct in becoming disqualified from managing a corporation under the Corporations Act
● conduct consisting in (h) Failure to comply with the requirements of a notice under this Act/Uniform Rules (i) Failing to comply with a VCAT order made under this Act or order made by corresponding authority under corresponding law (including failure to pay fine) (j) Failing to comply with a compensation order made under this Chapter
S299: Determination by local regulatory authority—
unsatisfactory professional conduct
(1) The designated local regulatory authority may, in relation to a disciplinary matter, find that respondent lawyer or legal practitioner associate of respondent law practice has engaged in UPC and may determine the disciplinary matter by making any of following orders:
● (a) Cautioning respondent or legal practitioner associate of the respondent law practice
● (b) Reprimand respondent or legal practitioner associate of the respondent law practice
● (c) Requiring apology from respondent/legal practitioner associate of “””
● (d) Require respondent or “” to re-do the work the subject of the complaint at no cost or to waive or reduce the fees for the work
● (e) Order requiring the (i) respondent lawyer, or (ii) the respondent law practice to arrange for the LPA, to undertake training, counselling, education or to be supervised
● (f) Fine up to $25,000 for respondent or LP associate of law practice
● (g) Order recommending imposition of a specified condition on the Australian practising certificate of the LP or LP associate of the respondent law practice
(2) If designated local regulatory authority proposes to determine a disciplinary matter under this section:
● (a) Must give respondent and complainant with details of the proposed determination and invite them to make written submissions to the LSC within a specified period
● (b) Must take into account any timely submissions, may but need not consider late ones
● (c) The designated local reg authority is not required to repeat the process if the designated local reg authority decides to make determination in different terms after taking into account any written submissions received during the specified period; and
● (d) Rules of procedural fairness are not breached if it doesn’t take into account late submissions (after getting no timely submissions) or makes decision without getting any submissions
● (3) If a determination is made, no further action is to be taken under this Chapter
● (4) If complaint concerns both consumer matter and disciplinary matter and LSC has already made determination of consumer matter under s 290, LSC can, in making a determination, can take into account any orders made in a related consumer matter, but not so as to make further orders under s 290.
300 Initiation and prosecution of proceedings in designated tribunal
(1) The VLSC may initiate and prosecute proceedings against a respondent lawyer in VCAT if the designated local regulatory authority is of the opinion that—
(a) alleged conduct may amount to UPC that’d be more appropriately dealt with in VCAT; or
(b) the alleged conduct may amount to PM.
(2) ASAP after deciding to initiate proceedings under this section, the LSC must give the complainant and the respondent to the complaint written notice of the decision.
301 Procedure of designated tribunal
(1) Proceedings in VCAT are to be dealt with in accordance with the procedures of VCAT.
(2) Subject to any procedural requirements, VCAT may determine proceedings without conducting a formal hearing, but is bound by the rules of procedural fairness.
(3) It is intended that jurisdictional legislation may determine whether VCAT is bound by the rules of evidence in conducting a hearing in relation to an allegation of PM, but VCAT is otherwise not bound by those rules in relation to matters arising under this Chapter.
302 Determination by designated tribunal—disciplinary matters
● (1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, VCAT finds that the lawyer is guilty of UPC or PM, VCAT may make any orders that it thinks fit, including any of the orders that LSC can make under section 299 in relation to a lawyer and any one or more of the following:
○ (a) Order that the lawyer do or refrain from doing something in connection with legal practice
○ (b) Cease to act as a notary public in relation to notarial services
○ (c) lawyers Practice be managed for specified period in specified way or subject to certain conditions
○ (d) Practice be subject to periodic inspection by specified person for “” period
○ (e) Seek advice from specific person re: management of the lawyer’s practice
○ (f) Order recommending lawyer’s name be taken off the roll: SC then has power to do. Can do on recommendation or on own motion (see note below)
○ (g) Order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer
○ (h) order directing that PC RC be cancelled or suspended for specified period
○ (i) order directing that PC/RC not be granted before end of specified period
○ (j) order that lawyer not apply for a PC or RC before end of a specified period
○ (k) Compensation order against the lawyer under Pt 5.5
○ (l) That lawyer pay a fine not exceeding $100,000 (but only for PM, for UPC limited to $25,000 limit)
● (2) Subject to s 303, can also make ancillary or other orders:
○ (a) an order for payment by the lawyer of expenses associated with orders under this section, as assessed or reviewed in or in accordance with the order or as agreed
○ (b) Interlocutory or interim orders, including order of kind referred to in (1)
● (3) VCAT can find person guilty of UPC even if complaint alleged PM
● (4) If makes fine payment order, a copy of the order may be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount of the fine and the order may be enforced as if it were an order of the court.
● (5) To avoid doubt, the power of the VCAT under subsection (1) to make any of the orders that the LSC can make under section 299 extends to making orders of that kind in relation to a lawyer whom the tribunal finds is guilty of PM.
● (6) It’s intended that jurisdictional legislation may provide right of appeal against or right of review of VCAT’s decision.
303 - Costs
● (1) If finding of UPC or PM - must make an order for costs (including costs of LSC and the complainant) against the lawyer unless VCAT satisfied that exceptional circumstances exist
● (2) Can order costs against the lawyer even where found NG of UPC or PM (including costs of complainant and LSC) where:
○ (a) Sole of principal reason why LSC instituted proceedings in VCAT was failure of lawyer to cooperate with the LSC; or
○ (b) There’s some other reason warranting the making of an order in the particular circumstances
● (3)(a-(b) Can order LSC to pay costs of lawyer, but only if satisfied lawyer is
NG of PM or UPC and VCAT considers that special circumstances warrant the making of the orders.
● (4) Can order costs on an interlocutory or interim basis against (a) lawyer or (b) person, body or fund nominated in relevant jurisdictional legislation for the purposes of this section.
● (5) Costs can be for (a) a specified amount or (b) unspecified, but must then specify the basis on which the amount is to be determined
● (6) Must also specify the terms on which costs must be paid
● (7) intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal’s decision.
304: Compliance with orders of designated tribunal
Persons and bodies (other than the Supreme Court) having relevant functions under this Law must give effect to the orders of the designated tribunal under this Law.
Note
Sections 23 and 461 provide that Supreme Court may order removal of the name of a lawyer from the Supreme Court roll on its own motion or on the recommendation of the designated local regulatory authority, the designated tribunal or a corresponding disciplinary body.
305: Power to disregard procedural lapses
(1) VCAT may order that a failure by the VLSC to observe procedural requirement in relation to a complaint is to be disregarded, if satisfied that the parties to the proceedings have not been prejudiced by the failure.
(2) This section applies to a failure occurring before proceedings were instituted in VCAT in relation to the complaint as well as to a failure occurring afterwards.
