Helpfully, the government has put out a little discussion paper about its proposal for a new national legal regulator. Turns out the proposal is for the existing regulators to keep on keeping on, rebadged as offices of the Uber-Bureau but for there to be one central number for the Uber-Bureau which will oversee everything panoptically from a station atop Mt Kosciuszko. Anyway, within the discussion paper is a section summarising how things are now in relation to complaints against lawyers in each of the states and territories:
‘Disciplinary provisions in each jurisdiction
Australian Capital Territory
In the ACT, complaints about solicitors are made to the Law Society of the ACT, and its Complaints Committee conducts preliminary inquiries. Unsatisfactory professional conduct and professional misconduct matters are referred to the Disciplinary Tribunal or, in more serious cases, the Supreme Court. The Law Society may suggest mediation, to which both parties must consent. The Council of the Law Society may make various orders. Complaints against barristers are made to the ACT Bar Association. It appoints professional Conduct Investigation Committees on an ad hoc basis to investigate complaints. Unsatisfactory professional conduct and professional misconduct matters are heard before a Disciplinary Tribunal.
For both solicitors and barristers, serious conduct matters and costs reviews may be referred directly to the ACT Supreme Court, which has inherent jurisdiction over all lawyers. The Court also hears appeals and can review the decisions of the professional associations.
New South Wales[1]
In NSW, complaints about solicitors and barristers are made to the Office of the Legal Services Commissioner. The Commissioner may investigate a complaint, refer a complaint to mediation, or refer it to the appropriate professional association for investigation.
Where the complaint involves a ‘consumer dispute’ (ie, a complaint that does not involve an issue of unsatisfactory professional conduct or professional misconduct), it is usually referred to mediation. A client may refer a costs dispute to the Commissioner or a professional association for mediation if the amount is less than the prescribed amount (ie, $10,000) and no application has been made for a costs assessment.
Where a complaint involves a reasonable likelihood of unsatisfactory professional conduct or professional misconduct, it is referred to the Administrative Decisions Tribunal for a hearing. The Tribunal has disciplinary powers and can make various orders. In some circumstances, where there is a reasonable likelihood that the lawyer will be found guilty of unsatisfactory professional conduct only, the Ombudsman may deal with it.
If a professional association decides to dismiss a complaint, reprimand a lawyer, or omit certain matters from the allegation that will be heard by the Tribunal, the complainant may apply to the Commissioner for a review of the decision. The Commissioner may also review a professional association’s decision on his or her own initiative.
If the Tribunal finds the lawyer guilty of unsatisfactory professional conduct or professional misconduct, it may make various orders. A Tribunal decision may be appealed to the Supreme Court (unless the decision was made on an interlocutory basis, with consent, or as to costs, in which case the leave of the Court is required). In addition, the Supreme Court has inherent jurisdiction over all lawyers in NSW.
Queensland[2]
Under the Legal Profession Act 2007 (Qld) the Legal Services Commission deals with complaints about lawyers and law firms. The Commissioner can also initiate an investigation on his or her own motion in relation to possible unsatisfactory professional conduct or professional misconduct.
Generally, the Legal Services Commission assesses a complaint as either a consumer dispute or a conduct complaint. The Commission mediates or otherwise tries to resolve consumer disputes or refers them to a professional association for mediation or resolution; and investigates conduct complaints or refers them to a professional association. It initiates disciplinary proceedings against practitioners if there is a ‘reasonable likelihood of a finding by a disciplinary body of unsatisfactory professional conduct or professional misconduct’ and ‘it is in the public interest to do so’. The Commissioner prosecutes these matters before the Legal Practice Committee or, for more serious matters, the Legal Practice Tribunal.
The Legal Practice Committee decides if a practitioner is guilty of unsatisfactory professional conduct, or whether an employee of a law practice is guilty of misconduct. If so, it can make various orders. Parties who are dissatisfied with a decision of the Committee can appeal to the Legal Practice Tribunal. If the Tribunal decides a practitioner is guilty of unsatisfactory professional conduct or professional misconduct, it also can make various orders. Parties who are dissatisfied with a decision of the Tribunal can appeal to the Court of Appeal.
Victoria[3]
Under the Legal Profession Act 2004 (Vic), the Legal Services Commissioner deals with complaints about legal practitioners (and, in some cases, law practices). Civil complaints are civil disputes about legal costs up to $25,000, financial loss disputes where a client claims to have suffered the loss as the result of an act or omission of a lawyer, and any other genuine dispute. Disciplinary complaints are complaints about the conduct of a lawyer that, if established, would amount to unsatisfactory professional conduct or professional misconduct. Mixed complaints are complaints involving both types of complaint.
A civil dispute is generally dealt with in two stages. First, the Commissioner attempts to resolve the dispute between the parties by alternative dispute resolution. This may include referring the dispute for mediation or, in the case of a dispute about the legal costs, making an arrangement for an assessment of the legal costs. If this does not resolve the dispute, a party to the complaint may apply to VCAT for a determination. The Tribunal may make orders for compensation or the payment of costs, amongst other things.
In relation to disciplinary disputes, the Commissioner investigates the complaint or refers the investigation to a prescribed investigatory body. If the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct, the Commissioner must apply to the VCAT for an order. If the Commissioner is satisfied that there is a reasonable likelihood that the tribunal would find the practitioner guilty of unsatisfactory professional conduct, the Commissioner may make an application to VCAT or take other action, such as cautioning or reprimanding the lawyer (with the lawyer’s consent), or requiring compensation. Where the Tribunal finds the practitioner guilty of professional misconduct or unsatisfactory professional conduct, it may impose various penalties.
Western Australia[4]
Under the Legal Profession Act 2008 (WA), the Legal Profession Complaints Committee is responsible for dealing with complaints about solicitors and barristers. The Law Complaints Officer is a statutory office that assists the Complaints Committee.
The Committee has the power to investigate cases and, where appropriate, its staff may try to mediate. Where this does not resolve the matter, it will be referred to the Committee. The Committee must dismiss the complaint if it is satisfied that there is no reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct; or it is in the public interest to do so.
If the Committee considers that the practitioner may be guilty of unsatisfactory professional conduct or professional misconduct, the Committee can commence formal disciplinary proceedings in the State Administrative Tribunal. If an allegation is proved, the Tribunal can make a number of orders. Alternatively, the Committee can exercise its own disciplinary powers in certain cases in relation to unsatisfactory professional conduct.
South Australia[5]
Complaints about lawyers can be made to the Legal Practitioners Conduct Board, which is an independent body established under the Legal Practitioners Act 1981 (SA). The Board has disciplinary powers for minor misconduct and in more serious cases it can institute proceedings in the Legal Practitioners Disciplinary Tribunal or, in the most serious cases, in the Supreme Court. If the Board considers that the lawyer has been guilty of unsatisfactory conduct it may make various orders. There is a right of appeal to the Supreme Court from Tribunal decisions.
Tasmania[6]
Under the Legal Profession Act 2007 (Tas), complaints are made to the Legal Profession Board, which is an independent body. The Board is responsible for investigating complaints, and may engage in mediation, intervention to achieve a resolution without a formal complaint, or a hearing (which could involve discipline of the lawyer or referral of the matter to the Disciplinary Tribunal or the Supreme Court). If the Board considers that the alleged conduct may amount to professional misconduct, it must refer the matter to the Disciplinary Tribunal or the Supreme Court.
Northern Territory[7]
The Law Society of the Northern Territory deals with complaints about lawyers. Under the Legal Profession Act 2006 (NT), the Law Society assesses and/or investigates complaints. It may suggest or require mediation for consumer complaints, and may refer serious disciplinary matters to the Legal Practitioners’ Disciplinary Tribunal. The Disciplinary Tribunal can make various orders upon a finding of professional misconduct or unsatisfactory professional conduct. The Statutory Supervisor must monitor investigations by the Law Society, and may require it to report on the progress of investigations.
[1] See, generally, Office of the Legal Services Commissioner website, (www.lawlink.nsw.gov.au/olsc).
[2] See, generally, Legal Services Commission website, (www.lsc.qld.gov.au).
[3] See, generally, Legal Services Commissioner website, (www.lsc.vic.gov.au).
[4] See, generally, Legal Profession Complaints Committee website (www.lpbwa.org.au).
[5] See, generally, Legal Practitioners Conduct Board website (www.legalcomplaints.com.au).
[6] See, generally, Legal Profession Board website (www.lpbt.com.au).’
[7] See, generally, Northern Territory Law Society website (www.lawsocietynt.asn.au).
