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.
Myer v Elman [1940] AC 282*
Lord Wright said that the Court’s jurisdiction to make an order for costs is enlivened where a practitioner has conducted himself or herself in such a manner that the conduct involves “a failure on the part of a solicitor to fulfil his duty to the court and to realise his duty to aid in promoting in his own sphere the cause of justice”.
Weaver v Law Society of New South Wales (1979) 142 CLR 201*
The term “Nothing in this Act contained shall prejudice, diminish, or affect the jurisdiction, powers and authorities which are exercisable by the Court over solicitors” as a provision specially preserving the inherent jurisdiction of [the Supreme Court] as an overriding jurisdiction in connexion with the discipline and control of its officers in proper cases.
Proceedings sui generis
Legal profession disciplinary proceedings are a special type of proceedings, the jurisdiction in respect of which is neither: (a) criminal, nor (b) comparable to ordinary civil proceedings involving a contest as to the private rights of disputing parties. Disciplinary proceedings are ‘sui generis’. They generally involve ‘a strong adversary flavour’ even if taking the form of an inquiry rather than proceedings on information (as noted in Law Society of NSW v Jackson [1981] 1 NSWLR 730 at 734B) but they are always concerned with the protection of the public. And because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceeding
The policy justification for treating the courts inherent jurisdiction as sui generis lies in its nature. It is the duty of judges to see that justice is administered in the courts. The imposition of this duty carries with it the power to act in protection of justice, if its fair and effective administration is threatened. Such power must encompass the authority to try summarily those accused of interfering in any manner with the administration of justice. It is therefore the peculiar character of the offence – that it strikes at the foundation of the administration of justice – which commends the summary mode of dealing with it.
Chamberlain v ACT Law Society (1993) 118 ALR 54 at 58, 59
Allowing fully for the important, statutory functions performed by the Legal Services Commissioner, the Legal Services Tribunal, the NSW Bar Association and the Law Society of NSW (under the Legal Profession Act 1987), ultimately it is the function of the Supreme Court of NSW to define and maintain the standards required of a practitioner of the Court
(g) Conduct of proceedings
Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251
Both the nature and purpose of disciplinary proceedings indicate that, unless and save to the extent that specific procedures are laid down by statute or by rules of court, and subject to the requirements of procedural fairness, they may be conducted in whatever manner the Court exercising disciplinary jurisdiction in the particular case considers appropriate to that case
(h) Court may depart from complainant’s approach
Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 30
Likewise, the fact that the Bar Association or Law Society might have a change of attitude as to the proper approach to the prosecution of disciplinary proceedings does not give rise to an estoppel precluding the Court from taking the course which it perceives the public interest requires
(i) Legal Services Commissioner
Legal Profession Act 2004, s 688 - Functions of Commissioner
• to receive complaints about unsatisfactory professional conduct or professional misconduct of Australian lawyers or Australian-registered foreign lawyers,
• to assist and advise complainants and potential complainants in making and pursuing complaints (including assisting complainants to clarify their complaints and to put their complaints in writing),
• to initiate a complaint against an Australian lawyer or an Australian-registered foreign lawyer,
• to investigate, or take over the investigation of, a complaint if the Commissioner considers it appropriate,
• to refer complaints to the appropriate Council for investigation or mediation in appropriate cases,
• to monitor investigations and give directions and assistance to Councils in connection with the investigation of complaints,
• to review the decisions of Councils to dismiss complaints or to reprimand Australian lawyers or Australian-registered foreign lawyers in connection with complaints,
• to take over investigations or to institute proceedings in the Tribunal against Australian lawyers or Australian-registered foreign lawyers following a review by the Commissioner,
• to conduct regular surveys of, and report on, the views and levels of satisfaction of complainants and respondent Australian lawyers with the complaints handling and disciplinary system,
• to monitor the refusal to grant, cancellation and suspension of practising certificates under Part 2.4 on grounds relating to fitness to practise (for example, in connection with acts of bankruptcy, the commission of indictable offences or tax offences or failures to give required notifications),
• functions conferred on the Commissioner under Division 7 of Part 2.4 and Part 4.7 of Chapter 4,
• to review the provisions and operations of Chapter 4 in accordance with section 494 (4),
• to monitor generally the exercise of regulatory functions by the Councils (other than the imposition of conditions on practising certificates),
• to review legal profession rules,
• to assist the Councils to promote community education about the regulation and discipline of the legal profession,
• to assist the Councils in the enhancement of professional ethics and standards, for example, through liaison with legal educators or directly through research, publications or educational seminars,
• to report on the Commissioner’s activities under this Act.
(j) Complaints
Legal Profession Act 2004, Chapter 4
Bannister
Jurisdiction of the tribunal is wholly protective not punitive
Foreman
Jurisdiction is protective and consistently educative
503. Complaints
A complaint may be made under this Part about an Australian legal practitioner’s (an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate) conduct
504. Making of complaints
(1) A complaint about an Australian legal practitioner may be made by:
(a) a client of the practitioner, or
(b) a Council, or
(c) the Commissioner, or
(d) any other person.
505. To whom complaint made
Complaints are made to the – the Commissioner is the Legal Services Commissioner appointed under part 7.3 of the LPA.
Although a complaint may be made to the Law Society or the Bar Council such complaints must be forwarded to the Commissioner. It is up to the Commissioner to determine if the complaint will be investigated by the Commissioner or the relevant Council (ie. Law Society or Bar Association).
506. Complaints made over 3 years after conduct concerned
A complaint may be made about conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred. However, a complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have occurred.
Complaints greater than 3 years may be dealt with where it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay, or the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint
507. Further information and verification
508. Practitioner to be notified of complaint
509. Submissions by practitioner
510. Preliminary assessment
511. Summary dismissal of complaints
The commissioner or the Bar Council may dismiss a complaint if the complainant does not give further information as required or if the complaint is vexatious misconceived, frivolous or lacking in substance note the additional bases for summary dismissal
512. Withdrawal of complaints
A complaint may, subject to this section, be withdrawn by the person who made it unless proceedings with respect to the complaint have been commenced in the Tribunal
513. Referral of complaints to Council
(k) Investigation of complaints
Legal Profession Act 2004, Chapter 4
525. Complaints to be investigated
Each complaint must be investigated
526. Investigation of complaints by Commissioner
The Commissioner may conduct an investigation into a complaint instead of referring it to a Council for investigation, or may take over the investigation of a complaint from a Council, if the Commissioner considers it appropriate
527. Investigation of complaints by Council
A Council must, subject to this section, conduct an investigation into each complaint referred to it by the Commissioner or made by the Council
528. Consultation and cooperation on complaints
Council must cooperate with commissioner or interstate council.
529. Monitoring by Commissioner of conduct of investigation
530. Directions by Commissioner about conduct of investigation
The Commissioner may give a Council directions on the handling of a complaint being investigated by the Council if the Commissioner considers that it is in the public interest to do so having regard to the seriousness of the complaint. The directions may include, for example, directions to pursue a particular line of inquiry or directions concerning the time for completing the investigation. Directions may not be given on the decision to be taken by a Council following the investigation
531. Appointment of investigator
An 'investigator' may be appointed to investigate a complaint as the agent of the commissioner or the Relevant Council. The powers of investigators generally are dealt with in Chapter 6.
531A. Authorised persons
The commissioner or the Relevant Council may appoint 'authorised persons' for the purposes of Part 4.4 who may exercise any or all of the functions of an investigator.
532. Independent investigation of certain complaints
Where it is satisfied that investigation by an independent investigator is in the interests of justice or in the public interest
533. Referral of matters to costs assessors
534. Conduct that may be investigated
The investigation may be extended based on the findings into other areas such as the conduct is:
(a)related to the subject-matter of the complaint and involves the complainant but is not within an allegation contained in the complaint, or
(b) the conduct is not related to the subject-matter of the complaint but involves the complainant, or
(c) the conduct is related to the subject-matter of the complaint but does not involve the complainant, or
(d) the conduct is not related to the subject-matter of the complaint and does not involve the complainant.
535. Modified complaints
The Commissioner or Council investigating a complaint may, during or after completion of the investigation, by instrument in writing, modify the complaint by omitting or altering any allegations or details in the complaint, or adding additional allegations or details to the complaint whether or not it is outside the 3 year time window.
536. Application of Chapter 6
Section 591 Provides that the rules of procedural fairness apply in relation to the investigation of complaints, and procedures of the commissioner and the Bar Council under Chapter 4.
Section 660(2) allows also an investigator to require 'any associate or former associate of the lawyer or any person who has or has had control of documents relating to the affairs of the lawyer' to give the investigator access to the documents or information relating to the lawyer's affairs reasonably required by the investigator.
It is an offence to fail to comply with a requirement under s660(l) or (2): s660[3].
Obstructing or misleading an investigator without reasonable excuse, is an offence: s674.
It is professional misconduct
• for an Australian legal practitioner to fail to comply with any requirement made by an investigator in the exercise of powers conferred by Chapter 6 s671(1).
• for an Australian lawyer whether or not the subject of the investigation concerned, to mislead an investigator or the Bar Council in the exercise of any power or function under Chapter 6, or to fail, without reasonable excurse, to comply with a requirement under s660: s676.
(j) Penalties
S540 LPA Less’ Serious Matters – Unsatisfactory Professional Conduct
The penalties available to the Commissioner or a Council are also contained within Part 4.5 of the LPA. These however only apply in cases of unsatisfactory professional conduct.
The Commissioner or Council may do any or all of the following:
(a) caution the practitioner,
(b) reprimand the practitioner,
(c) make a compensation order under Part 4.9 if the complainant requested a compensation order in respect of the complaint,
(d) determine that a specified condition be imposed on the practitioner’s practising certificate.
Failure to attend as required by the Commissioner or Council to receive a caution or reprimand is capable of being professional misconduct.
s562 ‘More’ serious matters – Professional Misconduct
For more serious matters where the decisions have been made to refer the matter to the Tribunal proceedings are conducted under Part 4.8 of the LPA. Part 4.8 sets out the procedure and the orders (penalties) that may be imposed if the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct.
• removal from the roll;
• suspension of a local practising certificate;
• reprimanding the lawyer;
• imposing a fine –
o $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct and
o $75,000 in the case of professional conduct: s562(7)
• imposing conditions on a local practising certificate;
• requiring the lawyer to complete a specified course of further legal education;
• requiring the practitioner to use the services of an accountant or other financial specialist in connection with the practitioner's practice.
Failure by a person to comply with an order of the tribunal under the LPA 2004 is capable of being unsatisfactory professional conduct or professional misconduct: s596(l). A person who fails to comply with an order of the tribunal is not entitled to apply for the grant or renewal of a local practising certificate while that failure continues: s596(2). A compensation order made by the tribunal is enforceable under s87 of the Administrative Decisions Tribunal Act 1997.
(l) Ethical rulings and assistance
One of the functions performed by the Bar Council and Law Society Ethics Committees, is to provide a facility through which legal practitioners can seek and obtain guidance in the form of ‘rulings’ on particular ethical questions which have arisen, or may arise, in the course of practice.
In the context of disciplinary proceedings such rulings can have a beneficial effect for a barrister who has acted in accordance with a ruling. A positive, but erroneous, advice from the Association may constitute a defence to a charge of misconduct: Law Society of NSW v Moulton [1981] 2 NSWLR 736 at 757B-C.
For a Bar Association or Law society ‘ruling’ to operate as a defence it must have been based on all material facts and the barrister who invokes it must have acted in accordance with it.
(m) Administrative Decisions Tribunal
Legal Profession Act 2004, Chapter 4
551. Commencement of proceedings
It permits the commissioner or the Bar Council to commence proceedings in the tribunal in relation to a complaint without commencing or completing an investigation, where the commissioner or council is 'satisfied that, having regard to the nature of the subject matter of the complaint and the reasonable likelihood that the tribunal will find that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, action should be taken under the section
552. Time for commencing proceedings
A disciplinary application may be made to the Tribunal at any time within 6 months after the Council or Commissioner decides that proceedings be commenced in the Tribunal with respect to the complaint concerned. Council may in writing request an extension.
553. Hearings
The Tribunal is to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal.
554. Joinder
The Tribunal may, subject to its rules and the rules of procedural fairness, order the joinder of more than one disciplinary application against the same or different Australian legal practitioners
555. Variation of disciplinary application
The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances.
556. Nature of allegations
A disciplinary application in respect of a complaint cannot be challenged on the ground that the allegations contained in the application do not deal with all of the matters raised in the complaint or deal differently with matters raised in the complaint or deal with additional matters
557. Substitution of applicant
Tribunal can nominate whether the Commissioner or Council is the appropriate applicant regardless of who initiated the proceedings
558. Rules of evidence
For the purpose of conducting a hearing into a question of professional misconduct, the Tribunal is to observe the rules of law governing the admission of evidence despite any contrary provisions of section.
Rules of evidence do not apply for unsatisfactory professional conduct
559. Parties
The following persons are entitled to appear at a hearing conducted by the Tribunal:
• the Australian legal practitioner against whom the complaint has been made,
• the relevant Council,
• the Commissioner,
• the Attorney General.
• The complainant for certain aspects
560. Hearings to be conducted in public
Creates a presumption that all hearings will be open to the public, unless the tribunal decides to make an order under s75 of the Administrative Decission Tribunal Act 1997.
561. Procedural lapses and defects in appointments
562. Determinations of Tribunal
SEE PENALTIES ABOVE
563. Interlocutory and interim orders
564. Consent orders
565. Compliance with determinations and orders
Persons and bodies having relevant powers or functions under the LPA 2004 must give effect to any order of the Tribunal made under section 562 or 564 and enforce any order of the Tribunal made under any of those sections.
566. Costs
567. Notification of progress and result of proceedings before Tribunal
568. Early termination of proceedings before Tribunal
Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal
569. Other remedies not affected
(n) Appeals
Legal Profession Act 2004, s 729A Appeals against orders and decisions of Tribunal
• An order or other decision made by the Tribunal under this Act may be appealed to the Supreme Court by a party to the proceedings in which the order or decision was made.
• The appeal is to be:
o by way of rehearing, and
o not by way of a new hearing (a de novo hearing).
• Despite subsection (1), an appeal does not lie to the Supreme Court under this section against any of the following decisions of the Tribunal except by leave of the Supreme Court:
o an interlocutory decision,
o a decision made with the consent of the parties,
o a decision as to costs.
• No appeals lie under Part 1 or 1A of Chapter 7 of the Administrative Decisions Tribunal Act 1997 to an Appeal Panel against an order or other decision of the Tribunal under this Act.
• Subsection (1) includes original decisions made by the Tribunal and decisions made by the Tribunal in the review of reviewable decisions, but does not include:
o decisions of the Tribunal under section 385 (2), or
o decisions of the Tribunal of a class prescribed by the regulations.
(o) Obligations of practitioners to assist enquiry - candour
Re Veron: ex parte Law Society of New South Wales (1966) 84 WN (Pt 2) (NSW) 136 at 141-142
The proposition that party having carriage of disciplinary proceedings bears the onus of proof (Re Evatt) does not always sit comfortably with judicial pronouncements to the effect that a legal practitioner the subject of disciplinary proceedings has a professional obligation to assist the Court or Tribunal hearing the proceedings in the conduct of its investigations
Malfanti LPDR 4 of 1993
Whatever its foundations, the duty to assist the conduct of disciplinary proceedings does not extend to an obligation to give evidence on oath in answer to a charge of misconduct in respect of which no prima facie case has been established
New South Wales Bar Association v Liversey [1982] 2 NSWLR 237
The lawyer needs to be honest and frank. There also needs to be cooperation and candour on the part of the lawyer who is being investigated
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 230-231
In this context care needs to be taken to distinguish between cases in which the evidence of a practitioner is not accepted and those in which there is an affirmative finding that he or she has deliberately lied or sought to mislead the Tribunal of fact.
Where a legal or medical practitioner gives a false or misleading account concerning his or her conduct to a disciplinary investigatory body, such behaviour may itself constitute professional misconduct
Smith v New South Wales Bar Association (No 2) (1992) 66 ALJR 605
A finding that the practitioner has deliberately given false evidence to a disciplinary tribunal must be based upon something more than a rejection of the practitioner's evidence.
Allowance must be made for the possibility that the evidence was not deliberately false but rather, for example, the product of an honest difference of recollection, or opinion, or the witness's failure to appreciate the significance of questions put to him or her for response.