Disciplinary Action
After investigating a complaint the Commissioner may:
- Dismiss the complaint if there is no reasonable likelihood that the legal practitioner will be found guilty by the Administrative Decisions Tribunal (“Tribunal”) of either unsatisfactory professional conduct or professional misconduct, or it is in the public interest to do so;
- Institute proceedings in the Tribunal if the Commissioner determines that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct; or
- In circumstances where the Commissioner is satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), either:
(i) caution the practitioner;(ii) reprimand the practitioner; and/or
(iii) impose conditions on the practitioner's Practising Certificate; and/or
(iv) make a compensation order if the complainant requested a compensation order.
After reviewing a complaint, the Commissioner may:
- confirm that the complaint is dismissed or that the legal practitioner is cautioned or reprimanded;
- refer the matter to mediation;
- re-investigate the complaint or direct the Law Society or Bar Association (each a “Council”) to do so;
- investigate any part of the complaint that was omitted by the Council from the allegations particularised in the information laid by the Council;
- direct the appropriate Council to investigate, or re-investigate, any part of the complaint that was omitted by the Council from the allegations particularised in the information laid by the Council;
- caution the practioner;
- reprimand the legal practitioner; or
- institute proceedings in the Tribunal against the legal practitioner or direct the appropriate Council to do so.
What happens if the practitioner is likely to be found guilty by the Tribunal of UPC or PM?
Where the Commissioner is satisfied that there is a “reasonable likelihood” that the practitioner will be found guilty by the Administrative Decisions Tribunal (“Tribunal”) of unsatisfactory professional conduct or professional misconduct, disciplinary proceedings must be instituted subject to section 537(2) of the Legal Profession Act 2004. While proceedings are usually commenced in the Tribunal, the Supreme Court of NSW also retains an inherent jurisdiction with respect to the discipline of legal practitioners. In such instances, the Commissioner acts as a “prosecutor” of the complaint. Where matters are commenced by the Law Society or Bar Association they act in a similar role.
Proceedings in the Tribunal are commenced by an “Application” which sets out each allegation of misconduct. The Application is supported by affidavit evidence from relevant witnesses. The practitioner files a “Reply” to the Application, which may also be supported by affidavit evidence.
Once the procedural requirements are satisfied, the Tribunal conducts a hearing. A hearing at the Tribunal is constituted by three members - a judicial member, a legal practitioner and a lay member. Witnesses may be called by each side to provide evidence in support of their case.
At the conclusion of the hearing, the Tribunal may make a variety of orders. Such orders include:
- removal of the practitioner’s name from the roll of legal practitioners, if the practitioner is guilty of professional misconduct;
- suspension/cancellation of the practitioner’s practising certificate or the imposition of conditions;
- a fine of up to $75,000 if the practitioner is guilty of professional misconduct;
- a fine of up to $10,000 if the practitioner is guilty of unsatisfactory professional conduct;
- an order reprimanding the practitioner; and
- an order that the practitioner undertakes a course of further legal education.
In the case of a solicitor’s practice, the Tribunal may order that:
- the solicitor’s practice be subject to periodic inspection;
- the solicitor’s practising certificate be endorsed with restrictive conditions; or
- the solicitor's practice of financial affairs be conducted for a specified period in a specified way or subject to specified conditions
The Tribunal may also order payment of compensation up to an amount of $25,000 in circumstances where the complainant has suffered loss as a result of the conduct complained of. However, the complainant is not entitled to an award of compensation if the complainant could recover compensation as a result of bringing a negligence or other civil action against the practitioner, or the Fidelity Fund provides compensation to the complainant.
The Tribunal may also make orders about the costs of the hearing.
A decision of the Tribunal may be the subject of an appeal.
Decisions made by the Legal Services Division of the Administrative Decisions Tribunal may be viewed on the Tribunal’s site.
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