Regulation Notes

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...

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