LPUL 2015 (NSW) Dispute resolution and professional discipline

Question 1

s 265 Complaints

Answer 1

What is a complaint?

A complaint may relate to any dispute or issue about any conduct to which this Chapter applies

Question 2

s 266 Complaints

Answer 2

Who may make a complaint?

(1) Any person or body may make a complaint.
(2) The designated local regulatory authority may initiate a complaint containing a disciplinary matter only.

Question 3

s 267 Complaints

Answer 3

How is a complaint made?

(1) A complaint is made to or by the designated local regulatory authority.
(2) A complaint must be made or recorded in writing and must—
(a) identify the complainant; and
(b) identify the lawyer or law practice about whom the complaint is made (or, if it is not possible to identify the lawyer, identify the law practice concerned); and
(c) describe the alleged conduct that is the subject of the complaint.

Question 4

s 268 Complaints

Answer 4

Matters in a complaint

(1) A complaint may contain either or both of the following—
(a) a consumer matter;
(b) a disciplinary matter.
(2) A dispute or issue about conduct that is the subject of a complaint can be both a consumer matter and a disciplinary matter.

Excludes govt clients

Question 5

s 269 Complaints

Answer 5

Consumer matters (including costs disputes)

(1) A consumer matter is a complaint about a lawyer or a law practice on the provision of legal services to the complainant by the lawyer or law practice and as the designated local regulatory authority determines should be resolved by the exercise of functions relating to consumer matters.
(2) costs disputes are consumer matters

Question 6

s 270 Complaints

Answer 6

Disciplinary matters
A disciplinary matter is so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to UPC or PM

Question 7

s 271 Complaints

Answer 7

Mixed complaints
If a complaint contains or may contain both a consumer matter and a disciplinary matter, the designated local regulatory authority may give priority to resolving the consumer matter as soon as possible and, if necessary and appropriate, separately from the disciplinary matter.

Question 8

s 272 Complaints

Answer 8

Time limits on making complaints
The complaint must be about something occurring within the immediate 3 years preceding the complaint, but the local regulatory authority may waive the time limits if it is in the public interest and if it is just and fair to deal with the complaint.

Question 9

s 273 Complaints

Answer 9

Withdrawing complaints
(1)  A complaint may be wholly or partly withdrawn by the complainant.
(doesn't prevent the investigation proceeding anyway though)

Question 10

s 286 Consumer matters

Answer 10

Prerequisite to resolution action by local regulatory authority
Despite any other provision of this Division, the designated local regulatory authority is not to take action towards resolving a consumer matter unless it is of the opinion that—
(a) at least one of the parties has made a reasonable attempt to resolve the matter and the attempt has been unsuccessful; or
(b) it would be unreasonable to expect the complainant to be involved in such an attempt.

Question 11

s 287 Consumer matters

Answer 11

Informal resolution of consumer matters
The designated local regulatory authority must attempt to resolve a consumer matter by informal means as soon as practicable.

Question 12

s 290 Consumer matters

Answer 12

Determination of consumer matters by local regulatory authority

(1) The designated local regulatory authority may resolve a consumer matter by making a determination that, in the designated local regulatory authority’s view, is fair and reasonable in all the circumstances.
(2) orders
(3) failure to comply with order c an be UPC or PM

Question 13

s 296 Disciplinary matters

Answer 13

UPC
For the purposes of this Law, UPC 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.

Question 14

s297 Disciplinary matters

Answer 14

Professional misconduct

(1) For the purposes of this Law, professional misconduct includes—
(a) UPC 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) not a fit and proper person
(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

Question 15

s 298 Disciplinary matters

Answer 15

Conduct capable of constituting UPC or PM

(see section for subsections, including (d) charging more than what is fair and reasonable for costs and (e) offences (i) serious offence, (ii) tax offence, (iii) offence involving dishonesty).

Question 16

s 299 Disciplinary matters

Answer 16

Determination by local regulatory authority—unsatisfactory professional conduct

ORDERS that can be made

Question 17

s 300 Disciplinary matters

Answer 17

Initiation and prosecution of proceedings in designated tribunal

(1) The designated local regulatory authority may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal if the designated local regulatory authority is of the opinion that—
(a) the alleged conduct may amount to UPC that would be more appropriately dealt with by the designated tribunal; or
(b) the alleged conduct may amount to PM.
(2) designated local regulatory authority must give the complainant and the respondent to the complaint written notice of the decision ASAP

Question 18

s 301 Disciplinary matters

Answer 18

Procedure of designated tribunal

(2) tribunal bound by rules of procedural fairness

Question 19

s 302 Disciplinary matters

Answer 19

Determination by designated tribunal—disciplinary matters

ORDERS that can be made

Question 20

s 321 Miscellaneous on complaints

Answer 20

Waiver of privilege or duty of confidentiality—complaints

(1) If a client of a law practice makes a complaint about the law practice or a lawyer, the complainant is taken to have waived legal professional privilege, or the benefit of any duty of confidentiality, to enable the law practice or lawyer to disclose to the appropriate authorities any information necessary for investigating and dealing with the complaint.

Question 21

Council of the Law Society of NSW v DXW [2019] NSWCAT 101

Answer 21

Interpreted s 266 & s300
Found that the Law Society lacked the power to commence these proceedings and the proceedings should be dismissed because there was no formal complaint made to begin the matter.