Time limit for new disciplinary complaints against Victorian and NSW lawyers

Section 272 of the Legal Profession Uniform Law says complaints about lawyers, other than costs disputes, must be about conduct alleged to have occurred within the three years before the date of the complaint. Since today is the 4th anniversary of the commencement of the LPUL, you might think that conduct nearly six years ago could not be complained about unless the Victorian Legal Services Commissioner extended time. But the Commissioner might not agree.

Costs disputes have a shorter limitation period: 60 days after the legal costs became payable (which will not necessarily be from the date of the bill or the due date in the bill: Batrouney v Forster [2015] VSC 230 at [219], [226], [228]; Bannon v Nauru Phosphate Royalties Trust [2017] VSC 214 at [71]).

These days, all complaints are made to the Victorian Legal Services Commissioner under the LPUL, even where the conduct allegedly occurred before the LPUL’s commencement on 1 July 2015: Sch. 4, cl. 27. Then the LPUL applies to the conduct ‘with the necessary modifications’ (whatever that means) and subject to the proviso that ‘disciplinary action’ (whatever that means) taken under the LPUL may not be ‘more onerous’ (whatever that means) than would have been the case under the Legal Profession Act which preceded the LPUL.

This post considers whether the VLSC’s position that conduct which occurred before 1 July 2015, and within the 6 years prior to a complaint made after 1 July 2015, may be complained about as of right, and if not, in what circumstances the Commissioner or a delegate may extend the time. It also considers whether such decisions are reviewable. I’m interested to hear your experiences in this realm, especially how NSW’s Legal Services Commissioner is handling this issue.

Practitioners ought to be vigilant about these issues because if the Commissioner is investigating conduct which allegedly occurred more than three years prior to a post-1 July 2015 complaint, and has not properly exercised the discretion to extend time (e.g. because no extension decision was actually made, or the decision to extend the time limit was purportedly made by an investigations officer who is not a delegate of the Commissioner’s discretion to extend time), then the Commissioner and her delegates may not have power to compel information and documents, such as would justify practitioners divulging client (or other) confidences.

If there is one thing (apart from actually working out what the law is before responding to disciplinary complaints) which I wish solicitors would get right more often in disciplinary investigations, it’s this: before divulging client confidences, check that the person demanding the information is actually a delegate of the Commissioner, and check that the Commissioner is actually exercising power in a properly constituted investigation.

The LPUL time periods may be extended by the Commissioner, or a delegate of the Commissioner for the purposes of this discretionary power. There are three circumstances in which the discretion to extend may be exercised:

  • costs disputes: complaint must be received within four months of the expiry of the 60 day period; it must be just and fair to deal with the complaint having regard to the delay and the reasons for the delay; and the lawyer must not have sued for fees;
  • other complaints, including all other civil matters and all disciplinary matters: it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay;
  • disciplinary matters which allege professional misconduct: it is in the public interest to deal with the complaint.

The counter-intuitive implication seems to be that it will sometimes be in the public interest to investigate old allegations of professional misconduct even where it is not just and fair to deal with them having regard to the delay and the reasons for the delay.

The LPUL says decisions about time limits are ‘final and cannot be challenged in any proceedings by the complainant or the respondent’, but that’s just there as a decoy, for Victorians at least. In fact, such decisions of the Victorian Legal Services Commissioner are amenable to judicial review in the Supreme Court of Victoria: s. 155 Legal Profession Uniform Law Application Act 2014 (Vic).

The VLSC takes the view that it is not necessary for the third circumstance for extension of time that the complaint actually allege professional misconduct. She seems to take the view that it is enough if the complaint alleges conduct which, if established ‘could’ in her, or her delegate’s, opinion, amount to professional misconduct. The Commissioner’s office has a very expansive notion of what ‘could’ amount to professional misconduct. It seems to me that before the third basis for extending time could be properly invoked, the Commissioner would have to come to the view that the conduct alleged, if established, would amount to professional misconduct as opposed to unsatisfactory professional conduct.

But it seems to me that the Commissioner also takes the view that cl. 27’s 3 year limitation period does not yet mean what it says, in relation to pre-1 July 2015 conduct alleged to have occurred more than three but fewer than six years before the lodgement of the complaint, relying on cl. 4 of the LPUL’s Sch. 4 (‘Time limits’), which says, in relation to Victoria:

If the time for doing any act was fixed by or under the [Legal Profession Act 2004 (Vic)], that time continues to apply on and after [1 July 2015] in relation to any act that was … permitted to be done, and could have been done, before that day, and unless the contrary intention appears, nothing in this Law has the effect of extending or abridging the time for doing that act.

The time for lodging with the Legal Services Commissioner a disciplinary complaint or a civil complaint other than a costs dispute under the 2004 Act was 6 years after the conduct in question: s. 4.2.7.

The Commissioner’s position that by virtue of Sch. 4, cl. 4 the 6 year limitation period continues to apply in relation to conduct before 1 July 2015 is unlikely to be correct for two reasons:

  • the Legal Profession Act did not fix a time for the act of lodging a complaint under the LPUL or to the Victorian Legal Services Commissioner (notwithstanding that it did something similar, namely fix a time for lodging a complaint under the 2004 Act to the Legal Services Commissioner, a separate statutory office);
  • alternatively section 272’s time limits, and the direction that new complaints about pre-1 July 2015 conduct are to be made under the LPUL to the Victorian Legal Services Commissioner, are a ‘contrary intention’ as contemplated by cl. 4.

Sch. 4, cl. 4 might have had operation if the LPUL provided for post-1 July 2015 complaints about pre-1 July 2015 conduct to continue to be dealt with under the Legal Profession Act 2004 by the Legal Services Commissioner, like complaints about such conduct not finished on 1 July 2015 are supposed to be. But that is not how the transitional provisions went.

The Commissioner’s own website does not descend into the complexities of the law as she seems to apply it, saying:

For complaints about behaviour or quality of service, you have 3 years to make a complaint. We may be able to extend the above timeframes, but only if certain circumstances exist. Please contact our office to discuss.

The powers to extend time in s. 272 are delegated widely: to the Director, Enquiries and Complaints; the Director, Investigations and Practitioner Services; the Manager, Regulatory Intervention; the Manager, Complaints and Investigations; the Manager, Disciplinary Investigations; the Manager (and Assistant Manager), Dispute Resolution and Review; the Manager (and Assistant Manager), Assessment and Resolutions; the Manager, Practitioner Services; and the Assistant Manager, Licensing. One class of person to whom the discretion is not exercised is the person likely to be dealing on a day to day basis with a disciplinary complaint, including the preliminary assessment of the complaint, the humble Investigations Officer.

My experience is that the Commissioner sometimes has to have it pointed out to her that a disciplinary complaint is out of time, perhaps because she takes the view that complaints made about conduct which is alleged to have occurred before 1 July 2015 need only be made within 6 years of the alleged conduct. It is also my observation that she is liberal about extending time (except in relation to crappy costs disputes) without much apparent investigation of the prejudice the effluxion of time might occasion to the respondent, or the strength (as opposed to the seriousness) of the allegations made in the complaint.

It should never be forgotten that the Commissioner is required by s. 316 of the LPUL to exercise discretions, such as the time extension discretion in s. 272 ‘in a fair manner, having regard to the respective interests of the complainant and the respondent and to the public interest.’

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