#13089 - Regulation - Ethics

Regulation

Uniform Law – Part 5.2 Complaints

• Any person or body may make a complaint 266(1) However the DLA may only initiate a disciplinary matter complaint s 266 (2)

• A complaint can contain a consumer matter and a disciplinary matter s 268

• 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 unsatisfactory professional conduct or professional misconduct s 270

• The conduct must have occurred within 3 years before the complaint is made, however this can be waived if just and fair, or if it’s in the public interest s 272

• The DLA must conduct a preliminary assessment of a complaint s 276(1)

• The DLA can close the complaint, or part of the complaint: s 277

  • if it is vexatious, misconceived, frivolous or lacking in substance

  • Made out of time

  • Complainant has not responded to requests for further information

  • Subject matter is already being investigated etc

• The DLA must notify the respondent and allow them to make submissions s 279

Uniform Law – Part 5.4 Disciplinary Matters

• Definitions

  • Unsatisfactory professional conduct 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 laws s 296

    • How do you get from UPC to PM? If it’s ongoing

  • Professional misconduct includes: s 297

    • unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

    • conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice (have regard to the same factors as admission)

    • See case law (below)

  • The following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct s 298

    1. conduct consisting of a contravention of this Law, whether or not—

       1. the contravention is an offence or punishable by way of a pecuniary penalty order; or

       2. the person has been convicted of an offence in relation to the contravention; or

       3. a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention;

    2. conduct consisting of a contravention of the Uniform Rules;

    3. conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than this Law), whether or not the person has been convicted of an offence in relation to the contravention;

    4. charging more than a fair and reasonable amount for legal costs in connection with the practice of law;

    5. conduct in respect of which there is a conviction for—

       1. a serious offence; or

       2. a tax offence; or

       3. an offence involving dishonesty;

    6. conduct as or in becoming an insolvent under administration;

    7. conduct in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;

    8. conduct consisting of a failure to comply with the requirements of a notice under this Law or the Uniform Rules;

    9. conduct in failing to comply with an order of the designated tribunal made under this Law or an order of a corresponding authority made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Law or a corresponding law);

    10. conduct in failing to comply with a compensation order made under this Chapter.

• Determination by local regulatory authority

• The DLA may, in relation to a disciplinary matter, find that the lawyer has engaged in UPC (NOT PM) and may determine the disciplinary matter by making any of the following orders: s 299(1)

1. an order cautioning the respondent or a legal practitioner associate of the respondent law practice;

2. an order reprimanding the respondent or a legal practitioner associate of the respondent law practice;

3. an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice;

4. an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work;

5. an order requiring—

1. the respondent lawyer; or

2. the respondent law practice to arrange for a legal practitioner associate of the law practice— to undertake training, education or counselling or be supervised;

6. an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25000) to the fund referred to in section 456;

7. an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice.

• The DLA does not have the power to cancel a practicing certificate. VCAT does if they find a lawyer is guilty of UPC or PM

• If the DLA proposes to determine a disciplinary matter under this section, they must s 299(2)

  • Provide the respondent and complainant with details of the proposed determination and invite them to make submissions

  • Take into account these submissions

• If the DLA makes a determination, no further action is to be taken under this Chapter with respect to the complaint s 299(3)

• If the DLA has already determined a consumer matter under s 290, they can take this into account when making a determination about the disciplinary matter s 299(4)

  • The LSC (DLA) has a discretion to conduct internal review of its decision s 313

• Role of the designated tribunal

  • The DLA (LSC) may (discretion) initiate and prosecute proceedings against a lawyer if they are of the opinion that the alleged conduct may amount to UPC that would more appropriately be dealt with by the tribunal, or the alleged conduct may amount to PM s 300(1) Note** UPC becomes PM at the point that the possibility is raised that the result of the matter might be the cancellation or suspension of a practising certificate

  • Tribunal can determine proceedings without conducting a formal hearing, but most accord procedural fairness s 301(2)

  • For disciplinary matters: If the tribunal finds that the lawyer is guilty of UPC or PM, they may make any order they think fit, including any of the orders listed under s 299 and any one or more of the following: s 302(1)

    1. an order that the lawyer do or refrain from doing something in connection with the practice of law;

    2. an order that the lawyer cease to accept instructions as a public notary in relation to notarial services;

    3. an order that the lawyer's practice be managed for a specified period in a specified way or subject to specified conditions;

    4. an order that the lawyer's practice be subject to periodic inspection by a specified person for a specified period;

    5. an order that the lawyer seek advice in relation to the management of the lawyer's practice from a specified person;

    6. an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register;

    7. an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer;

    8. an order directing that the lawyer's Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled;

    9. an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period;

    10. an order that the lawyer not apply for an Australian practising certificate or Australian registration certificate before the end of a specified period;

    11. a compensation order against the lawyer in accordance with Part 5.5;

    12. an order that the lawyer pay a fine of a specified amount not exceeding $100000 if the lawyer is found guilty of professional misconduct.

  • Can make ancillary orders including s 302(2)

    1. 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; and

    2. an interlocutory or interim order, including an order of the kind referred to in subsection(1).

  • Can find a person guilty of UPC even though the complaint was regarding PM s 302(3)

  • It is intended that the jurisdictional legislation may provide a right of appeal against or a right of review of the tribunal’s decision s 302(6)

    • Whilst the Act in s 155 allows judicial review in the Supreme Court of the VCAT decision, no appeal process can be found

  • Are they guilty of PM? See below for case law considerations

• Removal from the Roll Policy – Legal Services Board

  • The Board may apply to the Supreme Court for an order that a local lawyer’s name be removed from the local roll

  • The inherent jurisdiction of the Supreme Court extends to removing person’s names from the Roll of Legal Practitioners

  • VCAT can make an order recommending removal s 302(1)(f)

  • Sections 23 and 41 of the LPULAA provide that the Supreme Court may order the removal of a lawyer from the roll on its own motion or on the recommendation of the DLA or the tribunal

    • But usually don’t on recommendation of the DLA or tribunal

  • In considering whether to apply to the Court for an order that a local lawyer’s name be...