Issues:

• What is the essential character of the jurisdiction exercised by the Tribunal and the Court?
• Why is it ejustem generis?
• What is the actual procedure involved in the complaints process, and what can you do to get help or protection?

Desired Outcomes:

• A clear understanding that the whole of the disciplinary apparatus is protective and not punitive. 
• An understanding of the elements in the process and the ways in which a practitioner with a problem can seek help.

(a) Standard of proof

Briginshaw v Briginshaw (1938) 60 CLR 336

Whilst the civil, rather than the criminal, standard of proof applies in disciplinary proceedings, the degree of satisfaction for which the civil standard calls may vary according to the gravity of the fact to be proved; that is, the civil standard of proof (on the balance of probabilities).

Struck off – very comfortable with the result
Caution – very low threshold

Re Evatt: ex parte New South Wales Bar Association [1967] SR (NSW) 236*

As a general rule, the party having carriage of disciplinary proceedings bears the onus of proving that the practitioner the subject of disciplinary proceedings has been guilty of misconduct

(b) Standard – fitness to remain on the Roll

Current fitness not fitness at the time of the crime

Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 444

In regulating standards the Court may crystallise its thinking by asking whether a legal practitioner whose character or conduct is under review can properly be held out as a fit and proper person to be a practitioner of the Court

NSW Bar Association v Cummins (2001) 52 NSWLR 279

If the [decision maker] is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order. Suspension is achieved by orders under [the relevant statute]. Removal from the roll is appropriate only when a legal practitioner is unfit to practice, and suspension for a particular period is not appropriate.  The legal regulator is entitled to rely on the presumption of continuance to discharge the burden of proof which remains on it, and the lawyer is required to adduce evidence if he or she needs to rebut the presumption.  Once it shown at the time to not be fit and proper then decision maker can rely on that and it is up to the applicant to show how things have changed.

NSW Bar Association v Somosi [2001] NSWSC 285

Conduct not occurring in the course of professional practice may demonstrate unfitness if it amounts to incompatibility with the personal qualities essential for the conduct of practice. There may not even have been any criminal conviction with respect to that conduct. This is particularly so where the conduct over a long period shows systematic non-compliance with legal and civic obligations

(c) The disciplinary apparatus

The complaint-handling and disciplinary system in most jurisdictions is three-tiered.

Regulatory Authorities

Regulatory authorities include professional associations (i.e. law societies and bar associations) and statutory authorities (e.g. the NSW Office of the Legal Services Commissioner). Functions of regulatory authorities include admitting people to legal practice, issuing practising certificates, making practice rules, receiving complaints against lawyers, resolving consumer disputes and investigating conduct matters.

Disciplinary Authorities

Disciplinary authorities are courts, tribunals and panels.

Court’s “Inherent Jurisdiction”

When a lawyer is admitted to practise, their name is entered on the Roll of Legal Practitioners of the Supreme Court in their State or Territory: they become an “officer of the Court”. As such, they are subject to the “inherent jurisdiction” of that Court. In other words, the Supreme Courts retain inherent jurisdiction over the regulation of lawyers in Australia. This means there is always a right of appeal to the Supreme Courts as well as the ability to bring actions at first instance in the Supreme Court in certain circumstances.

(d) Nature of disciplinary proceedings

Disciplinary proceedings are most often brought for the purpose of removing a solicitor or barrister’s name from their respective rolls, as a result of a finding that the practitioner is not a fit and proper person to engage in legal practice. This is generally regarded as being to protect and educate the public and the profession

• To protect the public Clyne not punish the offender Harvey
• To educate the public on what they can expect from a legal practitioner Walsh, Foreman
• To educate the profession on the standards required of them Walsh, Foreman
• To protect the reputation of the profession Foreman

Walsh v Law Society of New South Wales (unreported) Dec 97 (Beasely JA)*

Proceedings are not punitive but protective of the public

Beazley JA couched the importance of education of the practitioner in the following terms: “Whilst a practitioner’s expressed intention not to re-offend is relevant to mitigation, it will have little weight unless accompanied by an understanding of the wrongfulness of the conduct which was the subject of the disciplinary charge.”

Harvey v Law Society of New South Wales (1975) 7 ALR 227; (1975) 49 ALJR 362 at 364

Although disciplinary proceedings profoundly affect those the subject of them, and may involve a punitive element, such proceedings are ultimately designed to be protective of the public rather than to punish particular practitioners and, accordingly, orders going beyond what is necessary to protect the public may be appellable.

Clyne v The New South Wales Bar Association (1960) 104 CLR 186

The High Court expressed the view that it was bound to protect the public

(e) No unilateral right to have name removed from Roll

Re Leaver and Legal Practitioners Act (1966) 83 WN (Pt 1) (NSW) 278*

A legal practitioner has no absolute right at any time to have his or her name removed from the Roll of Practitioners at his or her own request.

Disciplinary proceedings cannot, thus, be avoided. A complaint having been made, it must generally be dealt with on the merits even if a determination is facilitated by concessions properly made on one side of the record or the other

(f) Court's inherent jurisdiction

Legal Profession Act 2004, s 590

The inherent jurisdiction and powers of the Supreme Court with respect to the control and discipline of local lawyers are not affected by anything in this Chapter, and extend to:
(a) local legal practitioners, and
(b) interstate legal practitioners engaged in legal practice in this jurisdiction.