COMPLAINTS OF MISCONDUCT

What can be complained about?
Investigation of complaints

What can be complained about?

The LP Act sets out procedures for dealing with clients' complaints against and disputes with lawyers. There are limits to the sorts of complaints and disputes that can be dealt with under these procedures, but they do offer dissatisfied consumers a number of options.

UNSATISFACTORY CONDUCT

Unsatisfactory conduct refers generally to the less serious types of conduct that can be complained about. The LP Act (s.4.4.2) defines unsatisfactory conduct as "conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner".

It also includes:

contravention by a lawyer of the LP Act, or of the Regulations or Rules made under it (s.4.4.4(a));
charging excessive legal fees (s.4.4.4(b));
conduct in respect of convictions for serious offences or dishonesty (s.4.4.4(c));
conduct in becoming insolvent (s.4.4.4(d));
conduct in becoming disqualified from managing a corporation under the Corporations Act 2001 (Cth) ("Corporations Act")(s.4.4.4(e));
failure to comply with a condition of a practising certificate (s.4.4.5);
conduct of an Australian legal practitioner in failing to comply with an order of the Tribunal made under the LP Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under the LP Act or a corresponding law) (s.4.4.4(f)); and
conduct of an Australian legal practitioner in failing to comply with
a compensation order made under the LP Act or a corresponding laws (s.4.4.4(g)).

MISCONDUCT

Under common law (for an explanation of this, see: "Judge-made law" in Chapter 1*1 The Legal System), misconduct, for both barristers and solicitors, is conduct "which would reasonably be regarded as disgraceful or dishonourable by (the lawyer's) professional brethren of good repute and competency": Re a Solicitor [1972] 1 KB 302, 311.

The LP Act defines misconduct as including:

unsatisfactory conduct which amounts to a substantial or consistent failure to reach reasonable standards of competence and diligence (s.4.4.3(1)(a));
conduct either occurring in connection with the practice of law or otherwise which would justify a finding that the lawyer is not a fit and proper person to practise law (s.4.4.3(1)(b));
wilful or reckless contravention by a lawyer of the Act or the Regulations or Rules made under it (s.4.4.4(a));
charging excessive fees(s.4.4.4(b));
conduct in respect of convictions for serious offences or dishonesty (s.4.4.4(c));
conduct in becoming insolvent (s.4.4.4(d));
conduct in becoming disqualified from managing a corporation under the Corporations Act (s.4.4.4(e));
wilful or reckless failure to comply with a practising certificate (s.4.4.6); and
failure to comply with an undertaking given to a court or tribunal or the Legal Services Board or the Commissioner (s.4.4.6(b)).

Investigation of complaints

Complaints may be investigated by the Legal Services Commissioner or a person or body to whom investigation has been referred by the Commissioner. The LIV and the Bar have been prescribed as bodies that can investigate under such a referral.

The procedure for investigating complaints is set out in Part 4.4, Division 3 of the LP Act. Complaints about alleged misconduct or a standards breach of a lawyer can only be made to the Commissioner. Complaints should preferably be in writing, although the Commissioner may interview complainant personally and will arrange for the procedures to be explained to anyone making a complaint. This is a free service.

In investigating a complaint against a lawyer, the investigator may require the lawyer to provide a written explanation or to produce relevant documents (s.4.4.11). A lawyer who fails to provide the information requested within the specified time (this is normally 14 days, although follow-up reminder letters are sent before action is taken) may be guilty of unsatisfactory conduct or misconduct.

Depending on the seriousness of the matter, the Commissioner may:

take no further action; or
refer it to a hearing before the disciplinary tribunal at the VCAT.

The Commissioner may cause any matter to be investigated and referred to the VCAT without a complaint having been made against the lawyer. (See: "Advice and assistance", below for contact details.)

TRIBUNAL HEARINGS

Lower level: Tribunal constituted by an ordinary member. All but the most serious complaints will be dealt with at this level. The Tribunal will set the time and place of the hearing and has a wide power over the way it is conducted. Reasonable notice will be provided in advance to the lawyer concerned, the person who made the complaint (if any) and any other person who is considered to have an interest in the matter.
Upper level: Tribunal constituted by a judicial member (a Judge). This Tribunal presides over the most serous misconduct and may cancel, suspend, vary or attach conditions to the lawyer's right to practise for a specified period (s.4.4.17 LP Act).

The Tribunal may make a wide range of orders, including an order:

that no further action be taken;
recommending to the Supreme Court that the name of the practitioner be removed from the local roll;
that the practitioner's local practising certificate be suspended for a specified period or cancelled;
that a local practising certificate not be granted to the practitioner before the end of a specified period;
amending the conditions of the practitioner's local practising certificate or imposing further conditions, restrictions or limitations on the certificate;
that the practitioner pay a fine (maximum $10,000 for unsatisfactory conduct, maximum $50,000 for misconduct) (s.4.4.19(b));
reprimanding or admonishing the lawyer (s.4.4.19(k));
that the lawyer undertake a specified course of education or receive management or accounting advice (s.4.4.19(c));
subjecting the lawyer's practice to supervision (s.4.4.19(d));
that the lawyer not employ specified persons (s.4.4.19(m));
for costs. (In disciplinary matters the costs of a proceeding under Division 4 or 5 of Part 4.4 are in the discretion of the Tribunal. However, the Tribunal must not make an order for costs against the Commissioner unless satisfied that special circumstances make it appropriate to do so.),

or any orders it thinks fit.

SUSPENSION OF LAWYER'S PRACTISING CERTIFICATE

Note also that independent of any disciplinary complaint, the Legal Services Board may, in certain specified circumstances, suspend a lawyer's practising certificate.

REHEARINGS

If the Tribunal makes an order in respect of an application under section 4.4.13 (other than an interim order), a party may apply to the Tribunal for a rehearing of the application. An application for a rehearing must be made within 28 days after the day of the order.