How to deal with a Legal Services Commissioner complaint

In the 2007-08 financial year, the Legal Services Commissioner (aka the Bureau de Spank on this blog) received 2033 complaints (801 civil complaints, and 1584 disciplinary complaints).  That’s one for every 7 of the 13,837 lawyers who worked in Victoria as at the end of March 2008.  17% of them were characterised as mixed civil and disciplinary complaints.  One in 12 complaints was referred to the Law Institute for investigation.  Comparatively few prosecutions were brought.  In fact in only 1 in 25 complaints was the trigger for a prosecution arrived at, and a small fraction of those were or will be prosecuted.  Only 32 reprimands or cautions were issued by the Commissioner.  I take all this from the latest annual reports of the Commissioner (see my posts on the two previous annual reports here and here) and the Legal Service Board.  It makes me realise that mine is a skewed perspective, and that solicitors hire barristers to represent them in the complaints which are more complicated, more serious, or more anxiety-provoking.  Accordingly, much of what follows must be taken as advice in relation to the more serious end of the complaints spectrum.

Most of my clients want to avoid, above everything else, prosecution in VCAT.  Fair enough too.  All other outcomes remain hidden from public scrutiny.  Successfully defending a prosecution is a hollow victory: the allegations against you still get published in the reasons on Austlii, and the prospect of a costs order in your favour is virtually nil: Clause 46D, Schedule 1, Victorian Civil & Administrative Tribunal Act 1998.  It is the lawyers who do not do a good job of responding to the complaint who get prosecuted, rather than those who do the worst things. There is of course a limit to that proposition: do something bad enough (especially in relation to trust accounts) and you will be prosecuted, assuming that the Commissioner thinks she can prove it, regardless of how cooperative you are in the investigation.  The Commissioner has recently published guidelines in relation to her prosecutorial discretion: here and here.  Some of the factors she considers are:

  • whether the practitioner acknowledges his or her error and/or has shown remorse;
  • whether the practitioner made a mistake and is unlikely to repeat the conduct;
  • whether the practitioner cooperated during the investigation;
  • whether a guilty finding may entitle the complainant or others who may have been adversely affected to compensation.

Not doing a good job during the investigation phase manifests in two ways:

  • failing to take legitimate and forensically useful technical points; and
  • (where there are none) failing to realise that demonstrating a current understanding of the relevant law, admitting the error, expressing contrition, and taking the rap is always a better policy than being uncooperative.

In other words, there are times when pathetically spilling your guts is just as distasteful to watch as mindless obstructionism which only serves to reinforce the kind of allegation made against you.  There may not be all that many such times, but there are enough to make it worth engaging in the 15 due diligence disciplines I propose below under the heading ‘Nuts and Bolts’.  The trick is to identify the divide between legitimate technical points and being unhelpful in a way that will ultimately count against you.  It is an art which probably comes more naturally to litigators than others, though it must be said, not to all litigators…

Based on my observation of hundreds of disciplinary complaints, and their outcomes under the Legal Profession Act, 2004 and the Legal Practice Act, 1996, the most common errors are:

  • failing to ascertain what the allegations really are at the outset, and to carefully consider whether the allegations make out conduct which warrants discipline;
  • responding to what you imagine the complaint about, based on a projection of your own anxieties about your conduct, rather than what the complaint actually says (for some people, this mistake equates to acting for yourself);
  • not insisting on the keeping separate of the civil and disciplinary complaints, and not maintaining and exploiting the benefits of the separation;
  • failing to appreciate that ignorance of the existence of a norm which has in fact been breached is in fact an answer to an allegation of professional misconduct rather than an exacerbating factor (i.e. there is a kind of mens rea aspect to conduct warranting the more serious version of discipline);
  • failing to appreciate that a complaint can be made only against an individual, rather than a firm, and that subject to some — admittedly broad — statutory exceptions, there is no concept of vicarious responsibility for another’s professional misconduct;
  • getting the facts wrong as a result of working from memory rather than going back over the file, ascertaining the chronology and getting it right (making you look like an idiot to the Commissioner and a liar to the complainant);
  • sloppiness of expression;
  • succumbing to the temptation of making retaliatory allegations without an adequate forensic justification and slagging off your client by reference to confidential information obtained from the client which is not directly relevant to the complaint;
  • not explaining the law or the practices of the profession in your response, assuming that the complaint handler knows it;
  • not providing in the response one persuasive narrative capable of being read by itself and understood without cross-referencing documents.

One of the things the last Legal Ombudsman said in her exit interview with The Age was:

“I’ve found there are some lawyers who can’t seem to write a letter properly. Maybe it’s the schoolteacher coming out in me, but I do find it offensive to get spelling mistakes from a lawyer.”

If you have the misfortune to be charged with a disciplinary offence as a result of a complaint, it is worth knowing the fate of your correspondence.  It and the choicest contents will be pleaded in the charge itself, and it will be physically annexed to the charge.  (I have reservations about the legal propriety of the mode of drafting charges employed by the Commissioner, but apparently that is the way it has been done since time immemorial.)  At least some VCAT members take the view that it is unnecessary even to tender it; by virtue of its annexure to the charge it magics its way into evidence, presumably as admissions against interest, and that is certainly the Commissioner’s view.  In all likelihood, it will be the decision maker’s introduction to the case.  Before your counsel opens her mouth, the decision maker will have read much of the correspondence between you, the complainant and the Commissioner.  It is a cross-examiner’s picnic, a kind of fantastic cornucopia of prior inconsistent statements.

A.     The Art

I will deal with the last two bullet points in my list of the most common errors immediately, before you get bored and stop reading; that is,  I will deal with ‘the art’ before dealing with ‘the craft’.  If application of the craft does not assist you, you need the art.  What I usually find when acting for lawyers is that a complaint comes in and is published without the full details being drawn out at the outset.  The lawyer responds in a responsive rather than an assertive manner, saying, for example:

‘With regards to Mr Formerclient’s paragraph numbered 3.5, I deny the allegation, and say he is a liar.  Furthermore, with regard to his paragraph numbered 3.5, I refer you to the attached letter dated 19 July 20oo which speaks for itself (compare the later letter, attachment 4).’

Though the complainant may be able to follow the response, the complaint handler may do so imperfectly, for want of context which neither the complainant nor the respondent can appreciate the need for, being too close to the whole thing.  There are four problems with this approach:

  • it makes it difficult for the person you are trying to persuade to understand your position;
  • it gives the running to the complainant, and forces you into the — to my mind — backfooted language of admission and denials;
  • it fosters an undesirable adversarialism; and
  • perhaps most importantly, it fractures your own narrative and makes it difficult to ascertain and especially difficult to come back to after a while.

In my opinion, you should aim to respond substantively to the Commissioner once, in one elegantly written error-free letter premised on and demonstrating a correct understanding of the relevant law (or a persuasively argued version of it) which sets out your own version of the events in a plain, unvarnished and unemotional manner.

Your whole story (or, in complex matters, at least its outline) should appear in the letter.  That does not mean that there needs to be a chronology of the entire transaction. Often, that would be an error. In my opinion, the story should emerge, without reference to attachments, even if it is necessary to verify, and find the detail of, the story by reference to attachments.  In fact, I tend against attaching documents, preferring to summarise their effect.  If the Commissioner wants to see them, she will compel their production, and it is better to be sure documents are being produced under compulsion.  If you attach documents, make sure you do not miss out important documents.  Otherwise you will face questions about why the later-produced exculpatory file note was not earlier produced.

Rather than ‘denying’ the complainant’s version of a particular event, identify it in your own narrative and give your own version of it.  If it simply did not happen, say ‘I did not agree to act no win no fee, and nor did I say anything which could reasonably have led the complainant to believe I would do so’.  That is your response.  I do not think it is necessary to move into submissions about why you and not the complainant should be believed, or start piling on the circumstantial evidence in favour of your contention; that can wait until such time as the Commissioner informs you that she thinks there is a prima facie case, by which time you will probably have benefited from keeping your powder dry.

If you do it right, your reader-friendly narrative of only relevant matters will be the first such document, and the tables will be turned, so that it, rather than the scrappy complaint, becomes the focal point of the investigation.

The first thing I often do when retained to represent lawyers struggling with a complaint is produce a document of the kind I have referred to, drawing together the fractured and drawn out exchanges by correspondence. I often do a chronology, but if you are acting for yourself, that may not be necessary. Apart from collecting what I need to know in one place, it brings matters to a head and can put an end to the round of interminable correspondence exchanged at the glacial pace of every month or two in which the goalposts constantly shift, and the complaint heads further and further towards the too hard basket.  You should have three aims:

  • Do as little damage to the relationship which engendered the dispute as possible, and do as much to improve it as you can.  You will no doubt be surprised to learn that in more than 1 in 10 disciplinary complaints, the outcome was that the complainant was satisfied with the lawyer’s response and withdrew the complaint.
  • Escape prosecution and therefore adverse publicity (even if you have to cop a private reprimand or caution).
  • Get the whole thing over and done with quickly.  Complaints can easily take years to be resolved otherwise, and prosecutions years again to be completed (more than 4 in 10 disciplinary complaints take more than 4 months to resolve).

There is another reason for facilitating effective and quick disposition of your complaint.  Outraged as you may be to receive the complaint, it is desirable that bad conduct within the profession be brought to account.  Not only do you have an obligation as a member of the profession not to frustrate that process, but you have an interest in letting the Commissioner get on with her job of weeding out the rats in our ranks.  The poor old Commissioner is deluged by complaints.  Her complaints handlers have to handle scores if not hundreds of complaints at once.  The complainants and the respondents are each equally scandalised by the decisions she makes.  It is a difficult job.  Do the complaint handler a favour, and take the time to make it easy for her to come to terms with the complaint at the outset and then come back to it, as she will have to, in a month’s time, having had to deal in the meantime with scores of similar but different complaints. Also, if you need to obtain representation, you will cut down the costs of your lawyer coming to terms with the complaint.

On a related point, though there are some good people working in the Commissioner’s office, the complaint handlers are neither necessarily practitioners with decades of experience nor Supreme Court judges.  Nevertheless, they have to deal with complaints ranging from mental health law to caveats, sex offence trials to insolvency. What represents basic knowledge that you apply every day is very likely not even to occur to a complaint handler who has not practised extensively in your area.  It is worth explaining the law, and providing to the Commissioner the resources necessary for her to verify it.

B.     The Craft

There is some craft to apply before you get to the art, so I’m tackling this in reverse order.  Its application might result in getting rid of the complaint.  But more likely, it will result in a proper understanding of the complaint and of its implications and context.  Of course if you have done the due diligence, and there is a perfectly good substantive response to the complaint (and you are confident that the Commissioner will see that with the kind of clarity you see it) then just get on with it.  I am a cautious fellow, especially when dealing in other people’s professional reputations.  The problem is that many lawyers do not seem especially good at predicting the outcome of the complaint against them, and so if you think you might fit into that category, I counsel caution in the form of engaging in the disciplines proposed below.

Most of what precedes this heading has been about disciplinary complaints.  They are the weird element of the whole thing, the bit lawyers do not necessarily intuitively ‘get’ how to deal with.  That is because they are neither criminal nor civil, and because compared with a criminal accused, the lawyer has few rights, and is compelled to state his position.  Part of the craft is understanding what is not a disciplinary complaint, and keeping it separate.  So I deal with civil complaints (which amount to costs disputes and professional negligence claims) as well as disciplinary complaints from here on, but mainly through the prism of thinking about disciplinary complaints.  Civil complaints are just normal disputes, and lawyers already ‘get’ how to deal with normal disputes.  To the extent that is not true, nothing I say is likely to change how they deal with them.

So it is necessary to interpose an introduction to the different kinds of complaints, and to explain the processes used to deal with them.

Three types of complaints

Under the Legal Practice Act, 1996, the punter could lodge a pecuniary loss dispute, a costs dispute, or ‘any other genuine dispute’.  Or he could lodge a ‘complaint’ alleging unsatisfactory conduct or misconduct.  The form allowed for the making of more than one of these by the one document.  Nevertheless, the theory was, I think, that the punter decided what he wanted to institute, and his intentions were to be ascertained from the document.

Now, under the Legal Profession Act, 2004, the punter can lodge a ‘civil complaint’ or a ‘disciplinary complaint’.  There are species of civil disputes which correlate with the three kinds of ‘disputes’ under the old Act: I will call them civil (costs) complaints, civil (pecuniary loss) complaints, and civil (other genuine dispute) complaints.  But the new Act suggests that the Commissioner has a role in ‘characterising’ the punter’s allegations in the manner she considers most appropriate.  The Court of Appeal said in Byrne v Marles [2008] VSCA 78 that the Commissioner’s decisions in this regard are reviewable at administrative law, and it is certainly something on which it can be profitable to make submissions.  The Supreme Court seems to have said in a second case also called Byrne v Marles ([2009] VSC 210) that one allegation may properly be characterised as, for example, both a civil (costs) complaint and a disciplinary complaint, or both a civil (pecuniary loss) dispute and a civil (other genuine dispute) complaint.

The ‘other genuine dispute’ has been the sleeper under the old and the new Acts alike.  What its content is is relatively unexplored.  Disputes about liens and files have been one kind of dispute recognised as within this category.

Under the old Act, the regulators sought to settle disputes, and if they failed, gave a notice to that effect, allowing either party to refer the matter to the Legal Profession Tribunal, and that was the only way to get there.  Now, the giving of the notice remains the only way to access VCAT’s Legal Practice List’s Legal Profession Act, 2004 jurisdiction to resolve civil complaints, and an application must be made within 60 days after the notice: s. 4.3.15(2), unless extended under s. 126(1) of the VCAT Act, 1998 (see, e.g., Sibonna Nominees v R Legal [2009] VCAT 893).  But VCAT’s concurrent Fair Trading Act, 1999 consumer-trader dispute jurisdiction, which does not depend on a notice from the Legal Services Commissioner that she failed to resolve the civil complaint, which need not be lodged within 60 days of anything, and which gives VCAT power to make compensation orders for as much as it likes, greatly undermines the significance of its Legal Profession Act, 2004 jurisdiction. VCAT’s Legal Practice List invoking its  consumer-trader dispute jurisdiction, bypassing the Legal Services Commissioner’s processes, is preferable will depend on the circumstances.

(Basically, VCAT has jurisdiction under s. 108 of the Fair Trading Act, 1999 to hear and determine ‘consumer trader disputes’, namely, according to s. 107’s definition, disputes and claims, including negligence claims,

‘arising between a purchaser or possible purchaser of goods or services and a supplier or possible supplier of goods or services in relation to a supply or possible supply of goods or services.’

‘Services’ has been defined so as not to require conduct by the supplier in trade or commerce.  See this post, and this one, and this one and this one.)

Civil and disciplinary complaints are radically different creatures.  The former are essentially private disputes between lawyer and client in which the Commissioner’s only role is to carry out an initial conciliation phase.  One exception to the non-investigative nature of the Commissioner’s role is that in a costs dispute, the Commissioner has a power to call for the file and have it costed on a non-binding basis as an aid to the conciliation: s. 4.3.5.

If a civil complaint is unresolved by the Commissioner, it remains to be worked out in a court or tribunal of competent jurisdiction (e.g. VCAT or the Federal Court or the Magistrates’ Court), without further assistance to the client from the State, and entirely separately from any disciplinary prosecution which might eventuate. Either that, or it just dies an unresolved death; there is neither an obligation nor an expectation that following the dispute resolution phase one of the parties will begin a litigious phase. If one of the parties chooses VCAT as the forum, and invokes VCAT’s Legal Profession Act, 2004 jurisdiction, that is not the end of the matter.  VCAT can only award $25,000 per complainant per complaint.  But regardless of the outcome of the VCAT hearing, once a civil (pecuniary loss) complaint has gone through VCAT, it seems that the punter can have another crack, a second bite of the cherry, in a court of competent jurisdiction: see s. 4.2.14(2) (and, by inference, s. 4.3.2(1)(c).  If the punter succeeded in VCAT, they can chase the balance of their losses the second time round.  To complicate matters, if the punter invokes VCAT’s concurrent consumer-trader dispute jurisdiction under the Fair Trading Act, 1999 in addition to, or instead of, VCAT’s Legal Profession Act, 2004 jurisdiction, that will probably be the end of it: VCAT’s decisions give rise to res judicata like other courts and tribunals.  I say ‘it seems’, and ‘probably’ because it’s not entirely clear and is a matter on which I do not think there is any authority.  Why, for example, given VCAT’s concurrent consumer-trader dispute jurisdiction, should an Anshun estoppel not operate on the following basis?

‘You already sued me on this cause of action once in VCAT.  Now here we are in the Federal Magistrates’ Court.  You could have and should have got rid of everything at once.  All you had to do was invoke the Fair Trading Act, 1999 and you could have chased all of your alleged losses there.  Now it’s too late; you had your chance.’

The take-home point is that you would not want to breeze through your complaint comforted that the most compensation which can be got through the whole process is $25,000.  That would probably be false comfort because of the two bites of the cherry regime, and because also of VCAT’s concurrent unlimited consumer-trader dispute jurisdiction which might be invoked by the complainant instead of or in addition to invoking VCAT’s Legal Profession Act, 2004 jurisdiction.

Disciplinary complaints, on the other hand, are investigated by the Commissioner, who has extraordinary powers of compulsion unavailable to just about any other regulator, including the police.  She can bust through professional confidence, client legal privilege (but not, I would suggest, such privilege as you may personally enjoy, as opposed to the privilege that your client enjoys and you have a duty to protect), and the privilege against self-incrimination (though a watered down statutory substitute may be claimed).  Only the Commissioner chooses whether to lay a disciplinary charge.  Once she finishes her investigation the complainant is relegated to the role of either witness or interested observer.  Similar distinctions between disputes and complaints under the Legal Practice Act, 1996 are explained in Harris v Jens [1999] VLPT 26, and Joyce v Richmond & Bennison [1998] VLPT 7.

It would be nice to be able to say that civil complaints are about money while disciplinary complaints are not.  Unfortunately, it is not quite that simple, because a disciplinary complaint can apparently contain a claim for compensation: see, for example, ss. 4.2.6(2)(e), s. 4.4.13(4) and 4.4.19(a) read with 4.3.17(1)(a).  It is a claim which will be determined only in two situations:

  • where the lawyer agrees to pay compensation as a condition of the Commissioner exercising her discretion not to prosecute (see s. 4.4.13(4)); and
  • where the disciplinary complaint gives rise to a prosecution which succeeds, at which point a compensation order may be made, somewhat similarly to an order under s. 86 of the Sentencing Act, 1991: see ss. 4.4.19(a) read with 4.3.17(1)(a).

As the LPLC’s policy insures against civil liability, and a compensation order made at the end of a successful prosecution is not a fine or penalty, it would in my opinion be worth making a claim on the LPLC in respect of any liability and defence costs associated with resisting such a compensation claim, even though it is mixed up in the disciplinary process which is otherwise not covered by the policy.

Some of the Commissioner’s predecessors refused to maintain separate files in relation to disputes (now civil complaints) on the one hand and complaints (now disciplinary complaints) on the other, which were embodied in the one complaint form.  Problems followed.  For a start, anything said or done in relation to attempts to settle disputes was inadmissible in evidence — a statutory, simplified, broadened version of without prejudice privilege now to be found in s. 4.3.11 of the Legal Profession Act, 2004 — leading to impossible confusion if disputes and complaints were not separated.  Secondly, many disputes were claims to which the LPLC’s policy responded (except to the extent what was claimed back were the lawyer’s fees), including in relation to defence costs, while most complaints were not, except to the extent that they contained a compensation claim, leading to complications in relation to the remuneration of solicitors appointed by the LPLC to defend the dispute.  One improvement in the new regime is that the Commissioner does go further than her predecessors in delimiting what is a civil complaint (and within that category, what is a costs dispute and what a pecuniary loss dispute), and what is a disciplinary complaint.   The Commissioner urges lawyers to deal separately with the civil and disciplinary complaints.  Too few lawyers follow her advice.  I generally write two different letters in response to the two different complaints.

Not everyone understands what an investigation of a disciplinary complaint by the Legal Services Commissioner involves.  Many solicitors seem to think there will be some hearing during the investigation phase, or some moment where they will have to confront the complainant.  Not so, at least in the case of disciplinary complaints.  What a disciplinary complaint almost always amounts to is publication of the complaint to the lawyer, a call under her power of compulsion for ‘a full written explanation of your conduct and any documents you think might assist me’, and then an exchange of correspondence in which opportunities are afforded to each party to comment on the other’s responses.  Sometimes the Commissioner will require some particular questions posed in her covering letters to be answered, but often she relies on the complainant to raise the points and then seeks a response to them. Sometimes she calls for and inspects your file. Then she draws her preliminary observations together into what is known in the game as a ‘Murray Letter’ (after Murray v Legal Services Commissioner (1999) 46 NSWLR 224) and gives you a final opportunity to state your case, as a natural justice mechanism.  Then the complaint handler makes a recommendation to the Commissioner who makes a decision, and sends it to you in the post.  If her decision is to charge you at VCAT, you will be getting more mail…

What happens at the end of a complaint?  Well, the Commissioner might settle the whole thing, in a sense.  Though the Commissioner will tell you that you can’t settle a disciplinary complaint, if you (or the LPLC) comes to what the Commissioner considers to be a reasonable compromise of a civil (costs) complaint or a civil (pecuniary loss) complaint, that might itself be seen as an appropriate manifestation of insight into the wrongdoing and of contrition, such that the Commissioner exercises her discretion against prosecution.  In fact, the Commissioner can make taking no further action conditional on the payment of compensation, though she cannot require the payment of compensation.  This is true even in cases of misconduct which the Commissioner is theoretically obliged to prosecute if she is satisfied there is a reasonable likelihood of success at VCAT.  Because of the great fuzziness between what is properly characterised as misconduct and what as unsatisfactory conduct, in reality the Commissioner has a discretion in all but the worst cases of wrongdoing (though if the Commissioner believes she can prove dishonest conduct, she would be likely to prosecute).  Because of this real world dynamic, it is often useful to have a civil dispute to negotiate over.  It changes the dynamic of the whole affair.  It provides a reason for talking with the complainant.  Things can be patched up with a former client under cover of the statutory negotiation privilege.  If compensation for something other than your own legal costs is sought, it also provides an opportunity to get free representation through the LPLC.  So when you are discussing with the Commissioner how the complaint should be characterised, you should be astute to the undesirability of railing unthinkingly against classification as at least partly a civil complaint.

But if the whole thing does not go away, the possible outcomes under ss. 4.2.10, and 4.4.13 are:

  • the complaint is withdrawn (in which case the Commissioner may commence an own motion investigation: see s. 4.4.8);
  • the complaint is summarily dismissed by the Commissioner without investigation: see s. 4.2.10;
  • the complaint is investigated and the Commissioner is satisfied that there is no reasonable likelihood of a professional misconduct or unsatisfactory conduct finding at VCAT, in which case she must dismiss it;
  • the complaint is investigated and the Commissioner is satisfied that there is a reasonable likelihood of a professional misconduct finding at VCAT, in which case she must commence disciplinary proceedings against you there;
  • the complaint is investigated and the Commissioner is satisfied that there is a reasonable likelihood of an unsatisfactory professional conduct finding at VCAT, but not so satisfied in relation to professional misconduct, in which case she:
    • may commence disciplinary proceedings against you at VCAT, or
    • (if you consent) reprimand or caution you, regardless of how ‘clean’ you are;
    • (if you’re squeaky clean in the s. 4.4.13(3)(c) sense) take no further action against you, either conditionally on you agreeing to pay compensation (though she cannot compel you to do so), or not.

If a complaint is made out but no charges are laid, the Commissioner gives no publicity to her findings.  There is nothing to stop the complainant publishing it on the internet or otherwise boasting about their success, but I have never seen it happen.

The due diligence

I turn to the nuts and bolts of the matter.  Complaints and their investigation are a highly regulated affair.  All is not as it seems from reading the Legal Profession Act, 2004.  The common law has a role to play. For example, ‘professional misconduct’ is taken to mean everything that it has always meant at common law as well as everything which is said about it in the Act.  There is a substantial body of law made by the Legal Profession Tribunal and now VCAT which is nowhere comprehensively and accessibly digested but ignorance of which results in an imperfect understanding of what the people who matter think the Act means.

Just as it is important to deal frankly and cooperatively with legitimate complaints, so too do you have a duty to yourself to give yourself good advice about whether the complaint is one which the Commissioner has power to deal with.  What follows is an attempt to provide a series of prompts for you to give yourself advice.  The order of the headings roughly equates with an appropriate order for thinking about things.

1.     Tell others

Tell your spouse and get it over and done with the day you receive the complaint.  I have seen practitioners who are about to be struck from the roll of practitioners riddled with anxiety arising from having failed to keep their wives abreast of the situation.

Get another lawyer involved too, as a reality check.  You don’t have to retain them, but it is almost always desirable to do so.  There is always the Law Institute’s Members’ Advocate, Geoff Gronow.  There is a danger in relying too heavily on another lawyer’s opinions, however, if they have not had an opportunity to go through all the relevant facts dispassionately.

Lawyers get prosecuted for burying their head in the sand and not responding to the Commissioner all the time.  If you need more time than the fortnight within which a resonse is always demanded by the Commissioner’s initial letter, explain why and get more time.  The Commissioner is very reasonable in this regard.

2.    Identify what is being complained about

Complaints are often written in the heat of the moment and are broad-ranging.  Some of the allegations are unlikely to be of interest to the Commissioner.  The Commissioner will usually identify what she believes the complaint to be about in the covering letter.  It is wise to frame your response by reference to the words of that letter, unless (i) the Commissioner’s version is an innacurate summary of the complaint, to your disadvantage, or (ii) to do so would just be a transparent device to avoid giving a full and frank response.

If there is any uncertainty about the precise demarcation between the different kinds of civil complaints and the disciplinary complaint/s, certainty should be pursued in due course by corresponding with the Commissioner (see ‘Getting particulars’ below). Complaints as published are often quite unclear.  Allegations of conflict of interest in particular are often thrown around by complainants who naturally have no idea what they are talking about.  You are entitled to understand the allegation.  Is it a conflict between self-interest and duty, between interest of an associate and duty, or a conflict of duties between concurrent clients or a past and current client?  There is a useful discussion of this, in the context of a disciplinary charge, in Law Society of NSW v JLO (No 2) [2008] NSWADT 221 at [62]ff.

Avoid spilling your guts about what you think the complaint should be about and so project onto the scrappy and incomprehensible document which may be published to you.  Respond clinically to the complaint as it is formulated.  There is of course a point at which doing so becomes an act of bad faith, but you ought not to be criticised for responding to the complaint.  As I have already said, the inability to read the complaint dispassionately and objectively, devoid of all the context you know to surround the facts recounted in it is the best reason for involving someone else in your response.

3.    Ascertain when the controversial conduct allegedly occurred

Complainants are not always very particular about this, but it is fundamental to know when things are said to have happened:

a.  as a matter of the most elemental natural justice — for example if you were in Positano at that time, it was probably someone else in your office who did what you are alleged to have done;

b.  so as to identify whether any of the limitation periods in the Act for the bringing of complaints might be argued, and also to consider the limitations situation in relation to any related negligence claim you believe may be lurking behind the complaint;

c.  so as to identify the legislation in force at the controversial times.

Costs disputes are supposed to be brought within 60 days after the costs were payable, or 30 days after the provision of an itemised bill following a request for one.  So long as you have not got in first with a suit for fees, the Commissioner has a discretion to receive costs disputes up to 4 months and 60 days after the dates mentioned.  The complainant has to satisfy her there was a ‘reasonable cause for the delay’.

All other complaints must be made within 6 years after the controversial conduct is alleged to have occurred: s. 4.2.7(1).  This is different from the limitation period for tortious professional negligence, since that cause of action does not accrue until some not insubstantial damage is first suffered as a result of the controversial conduct, often some time afterwards.

Disciplinary complaints about conduct longer ago than 6 years ago may be received by the Commissioner if satisfied there was a reasonable cause for the delay and it is otherwise in the public interest to do do.

The Commissioner has recently published a policy about these kinds of extensions.  Effluxion of time such as to prejudice the lawyer’s ability to respond to the complaint is clearly identified as a relevant consideration.  The policy makes clear that decisions to accept a complaint out of time are reviewable in administrative law.  The policy does not discuss investigations commenced on the Commissioner’s own motion under s. 4.4.8, and the policy about that kind of investigation published by her is silent about time limits.  There is, however, no time limit within which the Commissioner may commence an own-motion investigation (and no obligation on her to notify the lawyer investigated of the investigation).  An own-motion investigation can only be commenced, however, in the absence of a complaint about the subject of the investigation, or where a complaint has been withdrawn.

(Complaints usually gather new allegations to them as they go along, like a snowball.  Getting particulars of unclear complaints and then aspiring to one kick-arse response are tools to be used to avoid this.  There is not much else you can do to prevent the snowball’s progress.  Each time new allegations are thrown into the mix, however, you need to run the due diligence over them, especially in relation to the 6 year limitation period.)

4.     Ascertain what legislation applies

The Legal Practice Act, 1996 was repealed on 12 December 2005, when the Legal Profession Act, 2004 commenced.  The transitional provisions are in schedule 2 of the Legal Profession Act, 2004.  For present purposes, suffice it to note that civil and disciplinary complaints ‘made’ on or after 12 December 2005 are dealt with under the new Act, even if their subject matter is conduct allegedly engaged in before then: cl. 6.6.  Obviously, conduct in 2003 will fall to be assessed against the Legal Practice Act, 1996 even if the complaint will be dealt with under the Legal Profession Act, 2004 because it was lodged in 2006.

It is then necessary to go to the version/s of the Act which applies to the controversial conduct, usually the version of the Act at the time of the controversial conduct.    This is especially important if the controversial conduct relates to trust accounts or costs, but because the legislative history of the new Act and Regulations alike is complicated and bedevilled by retrospective amendments, I recommend finding the version in force at the relevant time as a discipline in every case.  Basically, parliament did not get everything right at the outset, and the longer ago the controversial conduct, the more likely you are to stumble across a loophole which is invisible in the latest reprint of the Act.  I stumbled across a pearler just the other day, and have the highest hopes for it.  Luckily, getting to the Act/s as in force at the relevant time is achievable through the Victorian Law Today bit of this webpage.  Do some intuitive navigation until you press ‘Click Here to View Version History’ at which point you should see something like this:

After noticing that the dates are rendered in the American fashion, download the relevant version of the Act onto your desktop by clicking on it and work from that.  The same process may have to be gone through with the Regulations.

You then may need to get a copy of the Law Institute’s conduct rules or trust accounting rules as they applied at the relevant time, if there is an allegation of breach of the rule.  The latest conduct rules commenced on 30 September 2005.  The latest trust rules commenced on 1 November 2003.  Both may be downloaded here (LIV home page — regulation — acts, regulation and forms).  Earlier versions of the rules used to be on the Law Institute’s website, but are now to be found only in a folder behind the desk at the LIV Library.

If not all of the conduct alleged occurred in Victoria, consider the extra-territorial provisions of chapter 4. The Commissioner may investigate complaints about conduct in another state or territory or overseas, subject to limitations: s. 4.1.4, especially where the conduct consists of being convicted of certain crimes, becoming insolvent, and being disqualified from managing companies: s. 4.1.5.

5.     Identify the complainant

Lawyers are entitled to know the identity of their accuser: s. 4.2.8(2)(b).  It must be one of the most elemental aspects of natural justice.  Confusion often arises when lawyers make complaints in relation to matters affecting their client.  They have standing to make the complaint themselves, though by virtue of their confidentiality obligations to their clients and former clients, they would often have to seek the client’s permission to use confidential information from the retainer.  Furthermore, to the extent that greater reticence might be exercised before contacting a complainant than a mere witness, it is important to know who is the complainant.

If the Commissioner entitles her correspondence ‘Middletons OBO Phillip Glass v.  Stephen Warne’, you can assume that the complainant is Phillip Glass.  Recently, however, the correspondence named a lawyer as the complainant, and the Commissioner told me that he was the complainant personally and not as agent for his former client.  That could not have been right, since the complainant claimed as compensation against my client the lawyer’s fees for dealing with the mess it was claimed my client caused, and so I rang the lawyer and asked.  Sure enough, he told me the client was the complainant.

6.     Ascertain whether the complainant has standing

There are differences between the old Act and the new in relation to standing to bring a complaint.  One thing is the same: anyone — the Dalai Lama included — can make a disciplinary complaint about conduct which might be thought to be none of their business.  If a busybody makes a complaint, appropriate protections for your client’s or former client’s confidences is something which you might need to guide the Commissioner towards thinking about.  As far as I am aware, the relationship between the law of professional confidence and privilege, and the complainant’s right to know what is going on in his complaint is very murky.  It is clear that the Commissioner can compel you to divulge privileged information.  What she then does with it is not your problem, but your client’s.  It would be sensible, and you might well be obliged, to put your client on notice of the risk to the sanctity of their confidences, so as to give them an opportunity to discuss any concerns with the Commissioner or even to seek an injunction if so advised.  Neither you nor the Commissioner may know the relationship between the complainant and the client.  If there is some abuse going on, the client deserves an opportunity to identify it and put a stop to it.

The person who may lodge a civil (pecuniary loss) complaint or a civil (other genuine dispute) complaint is the person to whom the lawyer provided legal services, and the loss must arise as a result of an act or omission in their provision.  In other words, ‘the client’ as ordinarily conceived of, regardless of who was paying, and not non-clients even if tortious duties of care may have arisen in the lawyer towards them.

The person who may lodge a civil (costs) complaint is the person charged with the fees in dispute, but beneficiaries of a trust and/or of a deceased estate where the solicitor has provided legal services to the executor / trustee may do so too (as to which, see this post).  Formerly, beneficiaries were entitled to lodge pecuniary loss disputes as well.

7.    Ascertain whether the complaint is appropriately brought against you

Civil complaints may be brought against individuals as well as other entities such as incorporated practitioners, and firms.  A civil (costs) complaint, being a contractual dispute, would ordinarily have to be brought against the person with whom the complainant contracted, and so could not generally be brought against an employee solicitor in a law firm.  A civil (pecuniary loss) dispute, is really a statutory form of professional negligence claim and so should be brought against the persons who owed the duty of care said to have been breached.  That will generally be the person who contracted with the client, but the person who actually does the work may owe a duty of care in tort as well: Baxter v Obacelo (2001) 205 CLR 635.

Complaints can only be brought against Australian lawyers, i.e. individuals who have been through an Australian admission ceremony, and registered foreign lawyers: sections 4.2.3(2),  4.1.3, and 2.8.8.  It is their status at the time of the alleged conduct which is relevant, not at the time of the complaint, so handing in your practising certificate will not stymie an investigation (though it might be a smart move for other reasons if the alleged conduct is serious enough, by which I mean very very serious, and there is a risk that it will be suspended anyway).

The starting point is that there is no vicarious liability in the law of professional discipline, just like in the criminal law: Myers v Rothfield [1939] 1 KB 109 at 127; Re a Barrister & Solicitor (1979) 40 FLR 1 at 22, 27; Dal Pont, Lawyers’ Professional Responsibility (3rd ed., 2006) at [23.80].    That is not to say, however, that a failure to supervise, or a failure to do personally that which ought not be delegated, may not be investigated, since they themselves may amount to unsatisfactory conduct or professional misconduct.  But the complaint must be so framed by the Commissioner.  Consider the spectacular failure of the prosecution in LN v Legal Services Commissioner [2007] NSWCA 130, discussed by Richard Acland here.

There are some substantial statutory inroads into the general common law principle.  In particular, principals (e.g. partners, legal practitioner directors) are presumptively taken to have contravened provisions of the Act which a law practice (e.g. a law firm, incorporated practitioner) is shown to have contravened, but there are ways provided for displacing the presumption: s. 7.2.12.  In relation to legal practitioner directors of incorporated legal practices, see s. 2.7.11.  There are other provisions.  It is terribly complicated.  Be careful.  But it is worth getting to the bottom of.

8.     Ascertaining your relevant priors

While on the topic of your own characteristics’ relevance, let me say that it is worth being aware from the outset which of your ‘priors’, if any, are going to be relevant, and understanding how.  It might affect whether you notify the LPLC so as to attract free legal representation (if there is a claim the policy responds to), whether you go to the expense of obtaining representation or advice, and how you play the negotiation with the Commissioner in relation to the outcome, in particular, whether you are willing to consent to a reprimand or a caution or to the payment of compensation.  And it might also affect whether you push the Commissioner along if there are long delays in her investigation of the complaint, or wait patiently while the 5 years elapses and the slate is wiped clean.

The relevance of priors is twofold:

  • substantiated complaints within the last 5 years mean that the Commissioner does not have the option of taking no further action against you if she is satisfied that an unsatisfactory conduct finding by VCAT is reasonably likely but she is not so satisfied in relation to a professional misconduct finding (see s. 4.4.13(3)); and
  • (well down the track) prior VCAT findings of unsatisfactory conduct and misconduct will be brought to bear against you in determining the penalty (if any) if a prosecution succeeds against you at VCAT, by a process similar to that in a criminal case.

The first point means you are more likely to be prosecuted than otherwise if you have this kind of prior.  But in practice, I doubt that it is frequently an important consideration in deciding whether to prosecute.  If the Commissioner finds a complaint made out (in the sense of being satisfied that it is reasonably likely that VCAT will discipline you), and you’ve done something similar before, I suspect that will be significant, more or less regardless of how long ago you did it the first time.  If the prior is quite different in character, I suspect it will be only a relatively insignificant factor in deciding whether to prosecute.  If the Commissioner does not consider you worth prosecuting, then all she need do is — with your consent — reprimand or caution you.  It would be a rare solicitor who said ‘I do not consent to a caution.  Dismiss the complaint or prosecute me.  Your choice’ (though I have seen it happen!).

The Commissioner’s practice is that the 5 years is counted between the date of the decision in the earlier complaint and the date of the decision in the current one.  So what is a ‘substantiated complaint’?  It is a VCAT decision finding unsatisfactory conduct or professional misconduct made out against you (regardless of whether any penalty was imposed) or a complaint in respect of which the Commissioner was satisfied that an unsatisfactory conduct prosecution would succeed at VCAT, but which was not prosecuted.  If the Commissioner was satisfied in relation to misconduct, she must have prosecuted, since she is obliged to do so in that situation, and whether the complaint was substantiated will depend on the outcome of the prosecution and any appeals.  If she was satisfied in relation to unsatisfactory conduct, however, any of the following consequences may have followed:

  • prosecution (in which case, again, whether it was substantiated will depend on the prosecution’s outcome, and any appeals);
  • reprimand or caution; or
  • no further action, either on condition that you pay compensation, or not.

The take-home point is that ‘priors’ are not limited to VCAT / Legal Profession Tribunal adjudications, and even complaints which were made out, but in respect of which no further action was taken, count.  See NS-B v Legal Ombudsman [2001] VSC 164.  Though the Act does not say so, I have always assumed that the kind of complaint which counts is only a disciplinary complaint, and I am sure that is a safe assumption.

In relation to the second way in which priors are relevant (at VCAT, once you have lost), Vice-President Ross recently said this in Legal Services Commissioner v VB [2009] VCAT 718:

‘The past findings of misconduct are relevant but I have not accorded them any great weight as they took place some time ago (1999) and the misconduct on that occasion is not the same as the issues which bring the practitioner before the Tribunal on this occasion.’

9.     Check the jurisdictional limit

Under the new Act, a civil (costs) complaint may not be lodged in respect of more than $25,000 in costs (it was $15,000 under the old Act).  What that means, if decisions under the old Act are anything to go by, is that the costs of the whole ‘matter’ which is the subject of the complaint, including barristers’ fees and disbursements, but not including interest, must be less than $25,000; otherwise the complainant may not lodge a civil (costs) complaint.  I suspect that logic applies regardless of how many complainants jointly lodge the same civil (costs) complaint. The take-home point is that if the costs of the controversial ‘matter’ are greater than $25,000, but the disputed costs are only, say, $7,000, you need to bring to the Commissioner’s attention that the complaint is beyond her jurisdiction.

Civil (pecuniary loss) complaints may claim any amount of compensation.  For them, there is no jurisdictional limit.  If they go to phase 2 in VCAT’s Legal Practice List’s Legal Profession Act, 2004 jurisdiction, the most VCAT may order in compensation is $25,000 per civil (pecuniary loss) complaint, but $25,000 does not represent a jurisdictional limit (like $100,000 does in the Magistrates’ Court); rather it is a compensation cap.  In other words, your client can run a civil (pecuniary loss) claim against you for $1 million in VCAT, but can only get an order for compensation for $25,000.  The client seems to be able to run the whole case again in the Supreme Court, however, and chase the remaining $975,000.  Since VCAT has unlimited Fair Trading Act, 1999 jurisdiction in relation to lawyer-client disputes, however, and the form of the application to VCAT is no longer dictated by the form of the complaint lodged with the legal regulators (as used to be the case under the old Act), the $25,000 limit is relevant only if the complainant is clueless enough not to invoke the Fair Trading Act, 1999 jurisdiction, and VCAT does not decide to exercise it anyway.

10.     Check for a sufficient connection with legal practice

Occasionally, the conduct complained of may not have been engaged in in the course of legal practice.  Sexual outrages are an example.  But issues pop up from time to time about whether solicitor-migration agents were engaging in legal practice, and likewise executors of wills, attornies acting under power, and company directors who happen to be solicitors.

Civil complaints are straightforward enough.  There must be ‘legal costs’ in issue for a civil (costs) complaint.  Section 1.2.1’s definition of ‘legal costs’ has a ‘for the provision of legal services’ element to it.  The definitions of what I call civil (pecuniary loss) complaints and civil (other genuine dispute) complaints also have a ‘provision of legal services to the [complainant]’ element to them.

Disciplinary complaints are more problematic.  Conduct otherwise than in the course of legal practice may be investigated, but the power to do so has its limits.  First of all, the definition of professional misconduct is taken to include that concept at common law.  The common law test is whether competent and reputable peers would, if properly informed, regard your conduct as disgraceful or dishonourable.  Conduct unconnected with legal practice, but which tells upon suitability for practice is within the common law definition. That is reinforced (or possibly codified) by s. 4.4.3(1)(b), which includes within the concept of professional misconduct:

‘conduct of an Australian legal practitioner, 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 practitioner is not a fit and proper person to engage in legal practice’.

But both of these are serious versions of wrongdoing.  There is no concept of unsatisfactory professional conduct at common law.  It is an invention of statute.  It has an inclusive definition in s. 4.4.2 one of the elements of which is:

‘conduct … 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 [lawyer]’.

This is a frequently employed instance of unsatisfactory conduct.  There are many examples of conduct specifically said to be capable of amounting to unsatisfactory conduct which will ordinarily be unassociated with legal practice (e.g. becoming disqualified from managing a corporation: s. 4.4.4(e)).

The whole question is unbelievably complicated, by virtue of the extraordinary web of definitions of professional misconduct and unsatisfactory professional conduct about which there is almost no useful authority.  All I can say is that:

  • if you are in any doubt about whether your conduct was engaged in in the course of legal practice, it is worth considering the definitions super-carefully or taking advice from a specialist, and insisting of a proper articulation of what is alleged against you, especially for the more pedestrian allegations of wrongdoing;
  • where the species of wrongdoing is breach of the Act, or the conduct rules, sometimes the provisions said to have been breached have an ‘in the course of legal practice’ element; and
  • there are certainly precedents where an absence of jurisdiction in decision making bodies has been found by reference to the fact that the alleged conduct was engaged in outside of legal practice: see e.g. Patterson v S [1998] VLPT 11 (executors), but compare Legal Services Commissioner v JW [2009] VCAT 318 (migration agents).

11.     Checking for criminal liability

More than 100 crimes are created by offences in the Legal Profession Act, 2004.  Some are quite serious indictable offences. Most would be unknown to most practitioners.  As far as I can tell, what amounts to theft is prosecuted, but not much else is.  Nevertheless, it is as well to be aware of potential criminal liability and act accordingly.  The privilege against self-incrimination is expressly abrogated by s. 4.4.11 in respect of crimes created by the Act (though if the replacement statutory right is availed of, that which is divulged under cover of it cannot be used against you in the prosecution of, for example, most Crimes Act crimes).  I think you are probably entitled to wait for a relatively direct question before incriminating yourself, however, and you are certainly under no obligation accidentally to go potting yourself for crimes the existence of which you were unaware in your unduly uninhibited responses to an investigation about something else entirely, or by volunteering information when not under any compulsion to do so.

12.     Costs disputes

Disciplinary complaints will often come in the context of a dispute about costs.  You will see it from that perspective.  What often happens is that the costs dispute gets resolved commercially, but some aspect of the complaint (e.g. a trust accounting issue) sticks around (because you cannot commercially resolve a disciplinary complaint, or because you did not realise that there was a disciplinary complaint lurking there), and you have not dealt with it properly, distracted by what you thought the complaint was all about.  A common response is to assert to the Commissioner that ‘this is all about costs’, as if that demonstrates the mala fides of the complaint.  Of course that is sometimes true, but the Commissioner is astute to it, and can probably see it already.  If not, it can be worth bringing the hidden costs dispute to light.  But in general, there is nothing wrong with clients, dissatisfied in relation to costs, making complaints about other aspects of your conduct as well, so get over it.

What goes through many solicitors’ minds when they receive a complaint is an anxiety about potential disciplinary action which might be taken against them for non-compliance with the costs disclosure rules.  I have never seen a solicitor’s file which has suggested perfect compliance with the disclosure regime in the Legal Profession Act, 2004.  If there have been any prosecutions for non-compliance with the regime (which does amount either to unsatisfactory conduct if inadvertent or professional misconduct if wilful or reckless), they have been very few.  So don’t worry too much.  Don’t chill too much either though.  It is as well to understand that you have failed to comply, and what the consequences are (notably, that the client need not pay your fees until such time as your fees have been taxed by the Taxing Master at your expense: ss. 3.4.17 and 3.4.45).  And if you demonstrate that you get it, don’t under the Commissioner’s nose try and wheedle money out of the client which you are not entitled to, you will at least demonstrate a degree of competence and good sense which will do you good with the Commissioner in relation to the disciplinary complaint.

13.      Identifying whether what is alleged actually warrants discipline

A disciplinary complaint is defined by s. 4.2.3 as:

‘a complaint about conduct to the extent that the conduct, if established, would amount to unsatisfactory professional conduct or professional misconduct.’

What amounts to unsatisfactory professional conduct and professional misconduct is hopelessly confused.  Just look at s. 4.4.2 (an inclusive definition of ‘unsatisfactory conduct’), s. 4.4.3 (an inclusive definition of ‘professional misconduct’), and s. 4.4.4 (‘Conduct capable of constituting unsatisfactory professional conduct or professional misconduct’), and consider that the definitions are augmented by ss 4.4.5, 4.4.6 and 2.2.7(2), 2.2.12, 2.7.11, 2.7.21(2), 2.7.24(8), 2.7.40(1), 2.7.53(3) and the Regulations, 2.8.8, 3.2.17(2), 3.3.64(3), 3.4.12(4), 3.4.17(6), and 7.2.12(3).

The most commonly encountered species of unsatisfactory professional conduct and professional misconduct, however, is breach of some norm of conduct in the Legal Profession Act, 2004, the Regulations, or the conduct or trust accounting rules.  At the outset of the complaint, the Commissioner will not say she is investigating unsatisfactory professional conduct or professional misconduct, but by virtue of s. 4.2.3 she must be satisfied that the allegations, if made out, would amount to one or other of them.  (It is obviously worth getting a feel for whether you’re heading towards professional misconduct findings or not.  The Legal Practice Act, 1996‘s test to distinguish misconduct from unsatisfactory professional conduct was whether the breach of the norm was wilful or reckless.  Whatever anyone else might tell you, take it from me that that is still likely to differentiate the lesser from the more serious disciplinary offence.  See Victorian Bar Inc v CM QC [2006] VCAT 1417, where VCAT’s Vice-President said at [133]:

‘in order to establish recklessness, it is necessary to show that counsel appreciated the risk that their conduct in a particular instance might possibly amount to a breach of the rule, and knowing that risk, proceeded, intending to take that risk. In circumstances where counsel holds a bona fide belief that their conduct does not amount to a contravention of the rule, it cannot be reckless for counsel to proceed.’

Many complaints make allegations which kind of sound like things lawyers should not do.  Unless you’re a legal ethics nut, you’re liable to assume that if the Commissioner publishes a complaint to you, there must be something wrong with the alleged conduct.  Nevertheless, on close analysis why it warrants discipline may be quite unclear.  Unless there is an allegation of conduct which, if established, would warrant discipline, the Commissioner does not have power to investigate it.  For example, I acted for a lawyer who had written a letter to his opponent pointing out various frauds on the revenue committed by his opponent’s client and continuing:

‘Your client is at serious risk of having our client provide evidence to the appropriate authorities, if this matter were to proceed further, and the circumstances of your client’s behaviour were to be brought into light through the relevant authorities.’

On enquiry, the Commissioner indicated that the allegation was put as a breach of rule 28(3) of the Conduct Rules.  That did not seem to apply because my client’s client was a defendant and there was no threat to do anything in default of satisfaction of a civil liability to him.  Furthermore, I found a decision from Queensland’s Legal Profession Tribunal asserting that there is nothing objectionable in advising in a civil dispute that wrongdoing will be reported to the appropriate authorities  (Legal Services Commissioner v Sing [2007] LPT 004).  The complaint was promptly dismissed on these grounds.

It is as well not to get too cocky about the absence of any rule breach of which might be established by the conduct alleged against you.  Some of the conduct rules are incredibly wide.  For example rule 1.1 says:

‘A practitioner must, in the course of engaging in legal practice, act honestly and fairly in clients’ best interests’.

And part of rule 30.1 says:

‘A practitioner must not engage in conduct, whether in the course of practice or otherwise, which is
calculated, or likely to a material degree, to be prejudicial to the administration of justice.’

It seems fair to me though, that if the Commissioner wishes to invoke such broad rules, that should be made clear.

The time for working out precisely what the law is is when you get the complaint.  The following resources are useful:

  • Professor Gino Dal Pont, Professional Responsibility in Australia and New Zealand (3rd ed., 2006);
  • Dal Pont, Law of Costs (1st ed., 2003 for the Legal Practice Act, 1996; 2nd ed., 2009 for the Legal Profession Act, 2004);
  • Dal Pont, Riley’s Solicitor’s Manual, the famous NSW Bible without Victorian equivalent, recently renovated by Dal Pont;
  • Corones et al, Professional Responsibility and Legal Ethics in Queensland (2008) which is useful because it is up to date, and discusses the Queensland Act which is similar to the Victorian Act;
  • Quick on Costs (an expensive looseleaf published in NSW);
  • Walmsley, Abadee & Zipser, Professional Liability in Australia (2nd ed., 2007, mainly about negligence etc. rather than discipline or costs);
  • Russell Cocks, Ethics Handbook: Questions & Answers (2005, on special for $30 at the LIV Bookshop at the moment; it is a collection of rulings of the Law Institute’s Ethics Committee, with additional commentary);
  • Lewis & Kyrou’s Handy Hints on Legal Practice, (3rd ed.);
  • Gifford The Victorian Solicitor (1974);
  • The legal encyclopaedias — Laws of Australia, and Halsbury’s;
  • The Law Institute Journal, which is searchable online for members: by index or by full-text searching, at least back to 2002;
  • Austlii — it provides the only citator which covers state disciplinary tribunals’ decisions: go into the page for a particular section of the Legal Profession Act, 2004, for example, and hit the ‘noteup’ link to find cases on that provision, including VCAT decisions, or type the section number inside quotation marks, or your search words into the “search database” box once you have gone into the VCAT page, the old (Victorian) Legal Profession Tribunal page, NSW’s Administrative Decisions Tribunal‘s page, or WA’s State Administrative Tribunal page, or type the section number into Lawcite, Austlii’s free new citator which craps on Casebase for our purposes;
  • Other legal disciplinary tribunals’ webpages where Austlii does not cover them.

I have or have online access to all of them, and am happy to help out solicitors who do not, though I do constantly use all of them.

14.     Getting particulars

You are entitled to a comprehensible written articulation of ‘the details of the conduct complained about’: s. 4.2.6(2)(d).  What happens if you send off a scrappy response to a scrappy complaint is that the complainant turns around and starts filling in the gaps, and you get into a never-ending exchange of glacially slow correspondence in which the goal posts keep shifting, and neither your story nor the complainant’s is ever set out helpfully in one place.

The Act has procedures for the provision of further details by complainants.  See s. 4.2.9.  Great latitude is and ought to be afforded to the expression of complaints by laypersons, however putting technicalities aside, you are still entitled to understand exactly what it is said that you have done wrong, and why the complainant is unhappy about it.

So long as you do it promptly, and do not do it oppressively, I think it is perfectly reasonable to flush out the whole complaint from the outset by seeking further details by correspondence.  If you do so responsibly, there is no real risk of being prosecuted for failing to provide a response within the fortnight initially afforded.  Either the Commissioner will tell you you are being an idiot and to get on with answering, or she will provide, or procure the provision of particulars, and re-set the clock from when you have received them.

15.     Consider summary dismissal

Everyone latches onto s. 4.2.10 and many people have a crack at obtaining summary dismissal of complaints.  Where there are issues of the complaint being a re-run of something else previously disposed of or currently running elsewhere, there is scope for persuading the Commissioner to dismiss summarily.  Indeed, if the complaint relates to a case presently before the Courts (even if the subject matter of the complaint is not a matter in issue), the Commissioner tends not to touch it.  Otherwise, however, I find that the Commissioner is not especially amenable to being convinced to dismiss summarily.  Convincing the Commissioner without an investigation that the complaint is vexatious, misconceived, frivolous or lacking in substance, except where that is quite clear, is a particularly difficult road to hoe.  And properly so, really.  Rather, I find that the Commissioner makes her mind up about these things.  All of this is not to say that she does not exercise the power.  On the contrary, she ought to be commended for exercising it boldly and far more frequently than I am aware of any of her predecessors doing so.  Indeed, she summarily dismissed one in four disciplinary complaints received by her in the 2007-08 year.

Recently the Court of Appeal held in Byrne v Marles [2008] VSCA 78 that natural justice required her to allow the lawyer a formal opportunity to be heard in relation to whether the complaint should be characterised as a disciplinary complaint and if so whether it should be summarily dismissed.  That decision has now been overturned by an amendment to the Act, though not with retrospective effect.  See this post.

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