LPUL 2015 (NSW) Dispute resolution and professional discipline Flashcards
s 265 Complaints
What is a complaint?
A complaint may relate to any dispute or issue about any conduct to which this Chapter applies
s 266 Complaints
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.
s 267 Complaints
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.
s 268 Complaints
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
s 269 Complaints
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
s 270 Complaints
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
s 271 Complaints
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.
s 272 Complaints
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.
s 273 Complaints
Withdrawing complaints (1) A complaint may be wholly or partly withdrawn by the complainant. (doesn't prevent the investigation proceeding anyway though)
s 286 Consumer matters
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.
s 287 Consumer matters
Informal resolution of consumer matters
The designated local regulatory authority must attempt to resolve a consumer matter by informal means as soon as practicable.
s 290 Consumer matters
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
s 296 Disciplinary matters
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.
s297 Disciplinary matters
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
s 298 Disciplinary matters
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).
s 299 Disciplinary matters
Determination by local regulatory authority—unsatisfactory professional conduct
ORDERS that can be made
s 300 Disciplinary matters
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
s 301 Disciplinary matters
Procedure of designated tribunal
(2) tribunal bound by rules of procedural fairness
s 302 Disciplinary matters
Determination by designated tribunal—disciplinary matters
ORDERS that can be made
s 321 Miscellaneous on complaints
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.
Council of the Law Society of NSW v DXW [2019] NSWCAT 101
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.
