In Lambert & Jackson  FamCA 357, a Family Court judge sitting in Sydney made the following orders:
‘1. There be a further listing before me on 24 May 2010… for the purposes of giving Ms Y an opportunity to make submissions as to why I should not send my prima facie findings to the Legal Services Commission (Queensland) for the purpose of him considering whether to initiate and prosecute disciplinary proceedings against Ms Y.
2. Any affidavit evidence upon which Ms Y wishes to rely for the purposes of her submissions … is to be filed … [by] 21 May 2010.’
Without having heard the solicitor’s side of the story, the judge considered that there was documentary evidence prima facie suggesting complicity in her client’s failure to disclose relevant matters and for allowing him to give evidence at trial which she knew to be false. The Commissioner would presumably only ‘consider whether to initiate and prosecute disciplinary proceedings’ in the sense of treating the referral as a complaint by a non-client (i.e. by the judge) or as a catalyst for an own-motion investigation, and the wording of the order makes the proposed course sound a bit more fearsome than might be desirable.
I have seen this a number of times. Judicial referrals seem to be on the increase. Federal Magistrates seem especially fond of referring people for investigation. At least two clients I can think of have been referred. Another two clients have been referred by VCAT members. Interestingly, not all of the referrals seem to result in investigations. Far from it, in fact.
The Commissioner at least sometimes, and probably always, treats the referrals not as complaints but as catalysts to commence own motion investigations. In Victoria, given that a complaint is a writing setting out the detail of the conduct alleged to amount to misconduct, and that an own motion investigation may only be conducted in the absence of a complaint, it is not entirely clear that treating these referrals as catalysts for own-motion investigations is appropriate.
The solicitor given the opportunity to show cause is placed in a difficult situation. Unless the solicitor vindicates him or herself, the Commissioner might well commence an own motion investigation regardless of whether or not the Court decides to refer. Or a party (e.g. in this case, the wife) or a party’s solicitor, or a party’s aunt, might make a complaint, taking the decision out of the Court’s hands, even if the Court considers the material not to justify a referral. I am not aware of any reason why the solicitor would be entitled, in showing cause, to rely on privileged information, or even confidential non-privileged information. The show-cause order affords an opportunity to speak and does not amount to any form of compulsion which might trump confidentiality.
Unless the solicitor can vindicate him or herself without recourse to professional confidences (as may be the case if the appearance of wrongdoing is attributable to a lie told by the client about the solicitor’s conduct, which might be denied without breaching any confidence, or disproved by non-confidential evidence (such as a passport indicating the solicitor was in Tahiti on the day he or she allegedly signed a letter he or she disputes the authenticity of) the solicitor might well choose not to take up the opportunity of showing cause, and confine her explanation to the confidential confines of a proper investigation. In that case, the solicitor may not care much about the effects of his or her conduct on her client’s litigation or reputation. But not only might staying silent until the confidential Legal Services Commissioner investigation afford a more comfortable experience for the solicitor (as well as delaying any publicity for a substantial period), it is far less likely to have deleterious consequences for the solicitor’s client in the client’s matrimonial proceedings.
In the case discussed in this post, though the judge seems to have contemplated making final orders in the lis between husband and wife prior to hearing from the solicitor, the possibility of the information disclosed in showing cause might well influence, or prompt, or even give grounds for, an appeal, or a re-opening of the final orders.
- Privilege and disciplinary investigations
- Judges’ referrals to the ATO, police, Legal Services Commissioners
- Legal professional privilege and disciplinary complaints by non-clients
- Making allegations against fellow practitioners
- New South Wales Law Society misconceivedly suspends sole practitioner’s PC peremptorily