INTRODUCTION

2.1 The purpose of this Chapter is to outline the present system (or systems) for dealing with complaints against lawyers, in order to provide some background against which to make proposals for reform. While the position with respect to the discipline of lawyers is often referred to as “self-regulation”, this is not so according to regulatory theory. Under the Legal Profession Act 1987 (NSW), a system of “co-regulation” is established, in which the governing Councils of the Law Society and the Bar Association are vested with statutory authority (ie, public authority) to receive and investigate all complaints against lawyers, and to dispose of the great majority of complaints (through dismissal or reprimand). The remaining complaints are referred to bodies exercising statutory disciplinary authority - the Legal Profession Standards Board and the Legal Profession Disciplinary Tribunal. These bodies are independent of the profession, with members appointed by the Attorney General, but the majority of members are lawyers. A Legal Profession Conduct Review Panel, with a majority of non-lawyers, may review a decision of one of the professional Councils to dismiss a complaint, upon the application of the dissatisfied complainant.

2.2 In this Chapter, we consider in detail the various professional and public bodies which share the disciplinary responsibilities. We also consider a range of ancillary matters, such as admission to practice, the practising certificate system, the role of the Supreme Court in controlling the conduct of lawyers, and the previous disciplinary system. The processes for dealing with complaints against solicitors and barristers are considered separately, in keeping with actual practice. To the extent possible, we have presented empirical material about the operation of the system, supplied by the professional associations. This Chapter is intended mainly to be descriptive; more critical analysis may be found in Chapters 4 and 5, in the discussion surrounding the various proposals and options for reform.

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BACKGROUND

The previous disciplinary system (under the Legal Practitioners Act 1898)

In respect of solicitors

2.3 Pursuant to the Legal Practitioners Act 1898 (NSW), the Law Society Council could refer to the Solicitors’ Statutory Committee any question as to the professional misconduct of any solicitor which appeared to the Council to require investigation.¹ The Statutory Committee was a body independent of the Law Society consisting of not more than ten solicitors appointed by the Chief Justice and, in more recent times, ten lay people appointed by the Governor.² Although the Law Society had the power to regulate the issue of practising certificates it had no power under the Legal Practitioners Act 1898 (NSW) to sanction or impose a penalty on a solicitor. Where the Law Society Council considered that the solicitor’s conduct, though unsatisfactory, did not amount to professional misconduct (and accordingly did not warrant referral to the Solicitors’ Statutory Committee), the Council would generally administer an admonition.³

2.4 The Law Society still receives some complaints relating to conduct alleged to have occurred prior to the commencement of the 1987 Act (in January 1988). Where the Law Society considers that pre-1988 conduct raises a question of professional misconduct the complaint is referred to the Disciplinary Tribunal. However, the situation differs in relation to pre-1988 conduct which raises a question of unsatisfactory professional conduct under the new Act. The professional associations and the disciplinary bodies take the view that, as this lesser category did not exist under the old legislation, such conduct is only actionable if it occurred after the new legislation took effect.⁴

In respect of barristers

2.5 The Legal Practitioners Act 1897 only regulated solicitors and contained no provisions in respect of the general discipline of barristers. Barristers were entitled to commence practice any time after admission by the Supreme Court - no practising certificate system then existed. The New South Wales Bar Association itself was responsible for discipline of its members, and the Supreme Court had control over barristers through its inherent supervisory powers. Where the Bar Council was satisfied that a complaint was justified it had a limited number of disciplinary options available: Where the barrister was a member of the Association, the Council could admonish, fine or expel the barrister from the Association. In addition the Council could bring the facts of the complaint to the attention of the Supreme Court (through the Prothonotary) so that the Court could deal with the complaint. This latter course of action could be taken by the Bar Council even though the barrister was not a member of the Bar Association.

The professional associations

2.6 The Law Society of New South Wales is the professional association representing solicitors in New South Wales. Solicitors are not required by law to belong to the Law Society, but there is no additional fee or charge for membership once a practising certificate has been paid for. The Law Society Council is the elected governing body of the Law Society. According to the 1991 Annual Report of the Law Society, there were 22 members of the Law Society Council, with all members being practising solicitors.⁵

2.7 The New South Wales Bar Association is the professional association representing barristers in New South Wales. Since the Act came into effect in mid-1988, barristers also have been required to hold a current practising certificate issued by the Council in order to practise.⁶ The elected Bar Council, which acts as the executive of the Association, is comprised of nine Queen’s Counsel, and 12 “junior” barristers.⁷

Practising certificates

2.8 In order to engage in legal practice in New South Wales, a person must be admitted as a practitioner by the Supreme Court, and hold a current practising certificate, issued by either the Law Society Council or Bar Council.⁸ The Act prescribes certain grounds upon which the relevant Council may refuse to issue, cancel or suspend a practising certificate (for example where a fine has not been paid in relation to a finding of unsatisfactory professional conduct⁹). Where a Council exercises this power the applicant may appeal to the Supreme Court.¹⁰

Disciplinary powers of the Supreme Court

2.9 The Supreme Court is generally recognised as having inherent power with respect to the legal profession including the power to discipline barristers and solicitors.¹¹ Section 125 of the Legal Profession Act 1987 (NSW) specifically preserves the jurisdiction of the Supreme Court with respect to the discipline of barristers and solicitors. The equivalent position in the now repealed Legal Practitioners Act 1898 (NSW) was interpreted by the New South Wales Court of Appeal as evidencing the intention of the Legislature to leave the Supreme Court’s inherent jurisdiction untouched.¹² In effect this means that the Supreme Court has the power to discipline members of the legal profession which it exercises concurrently with the Standards Board and the Disciplinary Tribunal.

Complaining about lawyers

To the Law Society and the Bar Association

2.10 Under the new legislation, formal responsibility for the reception of complaints against legal practitioners is placed with the professional Councils, who delegate this function to committees and staff.¹³ In 1990, 1189 written complaints were received by the Law Society Council in relation to the conduct of solicitors.¹⁴ In the same year, 61 written complaints in respect of 79 barristers were made to the Bar Association. The large difference in the number of complaints made against barristers and solicitors is typical, and was recognised by the Commission in its earlier inquiry into the legal profession.¹⁵ This matter is discussed further in Chapter 4, below.¹⁶

To other organisations

2.11 In practice, members of the public regularly contact other organisations, such as the Law Reform Commission, the Attorney General’s Department, Community Legal Centres, the Department of Consumer Affairs, and the Law Consumers Association, with complaints about the provision of legal services. The Department of Consumer Affairs estimates that its Sydney and Parramatta Service Centres between them receive approximately 16 to 18 telephone enquires a week.¹⁷ The Department of Consumer Affairs and the Law Consumers Association report that they sometimes contact the legal practitioner on behalf of the complainant and attempt to mediate the matter if there is not a serious issue of professional ethics involved.¹⁸ However, as the professional associations have the formal power to receive and investigate complaints against lawyers, most organisations simply supply some basic information about the disciplinary system and refer complainants to the Law Society or Bar Association.

To the Consumer Claims Tribunal

2.12 Pursuant to the Consumer Claims Tribunal Act 1987 (NSW), the Consumer Claims Tribunal has jurisdiction to hear and determine any consumer claim lodged within three years of the date in which the services were supplied or should have been supplied. However, the Consumer Claims Tribunal’s jurisdiction is limited to claims where the amount in issue is not more than $6,000.¹⁹ The definition of “services” in the Consumer Claims Tribunal Act is, following amendment, sufficiently wide to include services “of a professional nature” provided by a barrister or solicitor.²⁰ The Consumer Claims Tribunal has a number of remedies at its disposal, including the power to order that the legal practitioner pay to the claimant a specified amount (up to $6,000) or that certain services be supplied by the legal practitioner to the claimant.²¹ In 1991, 114 claims in relation to the provision of legal services by solicitors and barristers were lodged at the Consumer Claims Tribunal. Of these claims, 30 were withdrawn before a hearing could be held, 12 were dismissed by the Tribunal and in 31 cases the complainant was awarded full or partial redress.²²

THE LEGAL PROFESSION ACT 1987

2.13 The previous legislation was wholly repealed and replaced by the Legal Profession Act 1987 (NSW), which followed upon (but did not entirely adopt) the recommendations of the Commission in its earlier inquiry into the legal profession in this State. Part 10 of the Act deals with matters of professional discipline of the legal profession, although there are relevant provisions scattered throughout the Act, such as those dealing with practising certificates, funding for the system, the role of the judiciary, and so on.

2.14 The Commission recommended in its earlier inquiry into the legal profession that the disciplinary system should be extended to cover bad professional work which falls short of professional misconduct and that, accordingly, a new disciplinary offence be created. It was intended by the Commission that this new disciplinary offence would cover carelessness, incompetence, and failure to meet accepted standards of work. The Commission’s recommendation was incorporated into the Legal Profession Act 1987 (NSW). The lesser offence was originally known as “minor professional misconduct” but after amendment became known as “unsatisfactory professional conduct”.²³ The statutory scheme for assessing complaints only applies in respect of conduct which falls into one of these categories.

2.15 “Unsatisfactory professional conduct” is defined as including:

conduct (whether consisting of an act or omission) 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 legal practitioner.²⁴

2.16 “Professional misconduct” is defined as including:

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence;

b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of barristers or the roll of solicitors; or

(c) conduct that is declared to be professional misconduct by any provision of the Act.²⁵

2.17 The Act provides for written complaints to be sent to the relevant Council of the professional association, that is the Law Society Council or the Bar Council.²⁶ The Councils, through their committees and staff, then undertake an initial assessment of the complaint. The Councils have no formal power to take action in relation to complaints which allege conduct not amounting to either unsatisfactory professional conduct or professional misconduct.²⁷

2.18 The Act makes the Law Society and Bar Councils responsible for the investigation and assessment of complaints made against solicitors and barristers, respectively.²⁸ Where a Council is of the opinion that the conduct alleged does not fall within the relevant heads of misconduct in the Act, it has the power to dismiss the complaint. Where a Council is of the opinion that the conduct complained of does involve a question of unsatisfactory professional conduct, it has limited powers to discipline a member itself by issuing a reprimand. However, where a Council considers it appropriate, complaints involving questions of unsatisfactory professional conduct may be referred to the Legal Profession Standards Board. Alternatively where the Council is of the opinion that the complaint involves a question of professional misconduct, the complaint must be referred to the Legal Profession Disciplinary Tribunal.

2.19 The Act provides for the establishment of the Legal Profession Standards Board and the Legal Profession Disciplinary Tribunal. Both disciplinary bodies are constituted by members of the profession with some lay representation. Where the Disciplinary Tribunal is satisfied that the legal practitioner’s conduct amounts to professional misconduct it has a number of powers including the power to strike the practitioner off the Roll, to cancel or restrict the practitioner’s practising certificate, or to order a fine of up to $25,000. The Legal Profession Standards Board also has a number of disciplinary powers where it finds that the conduct alleged amounts to unsatisfactory professional conduct. The Board’s powers to discipline are less expansive than those of the Tribunal and include the power to reprimand the legal practitioner, order a fine of up to $2,000, and order that the legal practitioner undertake a course of further legal education. The two disciplinary bodies also have limited powers to award compensation.

2.20 The Act provides for the establishment of the Legal Profession Conduct Review Panel. Where the Law Society Council²⁹ or Bar Council has dismissed a complaint, the complainant has the right to request that the Panel review the Council’s decision. The Panel is constituted by a majority of lay people. Where the Panel disagrees with the Council’s dismissal of the complaint, it can make a recommendation to the Attorney General that the matter be referred to one of the disciplinary bodies.

HANDLING COMPLAINTS ABOUT SOLICITORS

Form of the complaint

2.21 Pursuant to section 130 of the Act, a person who wishes to complain about a solicitor’s conduct may lodge a formal complaint with the Law Society Council. Section 130 of the Act provides that the complaint must be in a certain form. The complainant must give full details of the complaint to enable the Law Society Council to determine whether the conduct alleged constitutes unsatisfactory professional conduct or professional misconduct. Details of the solicitor involved and any loss suffered as a consequence of the alleged conduct must also be provided. If the complainant seeks a compensation order, for example that the solicitor’s fees be reduced or waived or that cash compensation be paid, then a request for this order must specifically be included in the complaint.

Reception of complaints

2.22 All written complaints received by the Law Society are referred to the Professional Conduct Department (the "Department"). The Department is staffed by a manager and several legal officers and is funded from the Statutory Interest Account pursuant to section 67 of the Act.

2.23 Generally those who ring the Law Society seeking help are put through to the Community Assistance Department. The Community Assistance Department is staffed by a Manager, a receptionist, two permanent and eight part-time legal officers. The Community Assistance Department is fully funded by the Law Foundation which in turn is funded (in part) from the Law Society’s Solicitors’ Trust Account Fund and from the Statutory Interest Account.³⁰ Members of the public who require general legal advice, or require a referral to an experienced solicitor, may contact the Community Assistance Department of the Law Society.

2.24 Both the Community Assistance Department and the Professional Conduct Department send to those who wish to make a complaint about a solicitor a copy of the Law Society’s printed complaint form and explanatory brochure. The explanatory brochure advises that:

If you have a complaint against your solicitor, you should first consider going to another solicitor for help in sorting out your problem; alternatively an approach could be made to the Community Assistance Department of the Law Society in an attempt to discuss the matter with your solicitor to find a satisfactory resolution of the problem. If the complaint is still unresolved or you choose not to adopt either of these courses, then you should fill out the complaints form attached hereto and forward it to the Manager, Professional Conduct Department.

2.25 The Law Society Council will accept complaints that are written but which are not on the standard form as long as all of the particulars required by the Act are included. Section 130 of the Act provides that the Councils are obliged to provide assistance to any person wishing to make a formal complaint to ensure that the complaint accords with the statutory requirements. The Commission has been advised by the Law Society that when such assistance is required it is normally provided by the Community Assistance Department.

The Complaints Committee

2.26 Section 136 of the Act empowers the Law Society Council to delegate (by resolution) the exercise of any or all of its functions under Division 3 to any of its committees. Pursuant to this section, on 21 November 1991, the Law Society Council delegated most of its disciplinary powers to a committee it had established for this purpose.³¹

2.27 The Attorney General has the power under the Act to require the Law Society Council to include lay members on a specified committee.³² The Complaints Committee consists of twelve solicitors and two lay people. The Commission has been advised by the Law Society that the lay membership on this committee is not in response to a direction from the Attorney General but rather due to the Law Society’s own initiative. The delegated powers of the Complaints Committee shall be discussed in greater detail below.

Categorisation of complaints

2.28 In 1990, the Professional Conduct Department received 1189 written complaints.³³ The Law Society also initiated 56 investigations itself,³⁴ usually in relation to trust account discrepancies which have been uncovered during the Law Society’s routine inspections The balance of the investigations stem from the Law Society’s monitoring of media reports and court hearings.

2.29 Each complaint is categorised by the Department according to the type of conduct alleged. The Law Society has provided the following breakdown of the conduct alleged in the complaints it received in 1990:

Client funds at risk	1
Delay	264
Delay in taxing party costs	5
Discourtesy	37
Failure to carry out instructions	61
Failure to pay third party	2
Failure to account	33
Liens	5
Negligence/Quality of work	254
No client advice	8
No communication	79
Failure to comply with undertaking	28
No statements available	2
Failure to trasfer documents	68
Overcharging	104
Failure to disclose personal interest	1
Trust Account inspection	37
Conduct/Standards breach	256
TOTAL	1245

2.30 This breakdown indicates that an overwhelming majority of the complaints received by the Law Society do not allege conduct so serious as to amount to professional misconduct, but generally relate to the alleged provision of sub-standard services. The statistics provided by the Law Society for the years 1988, 1989 and 1991 (noting that the 1991 figures are incomplete) also support this observation. Of the 3786 complaints dealt with by the Law Society in these years, 844 (22%) allege that the solicitor’s conduct is unethical,³⁵ 761 (20%) allege that the solicitor is guilty of negligence or question the quality of the work provided, 641 (17%) allege delay on the part of the solicitor, 272 (7%) allege that the solicitor failed to carry out the complainant’s instructions, and 247 (6.5%) allege overcharging by the solicitor. A further discussion of this issue can be found in Chapter 4.

Sources of complaints

2.31 There is no restriction in the Act about who may lodge a written complaint about the conduct of a legal practitioner.³⁶ The Law Society, at the request of the Commission, has provided the following breakdown of the complaints it has received for the years 1988-1991 (including those complaints where the conduct complained of occurred prior to 1 January 1988), according to the source of the complaint:³⁷

Number of complaints received pursuant to section 135	1988	1989	1990	1991
Client/Former client	635	731	866	1266
Solicitor for the client	184	195	193	170
Executor for an estate	3		1
Administrator of an estate	1
Beneficiary	4	6	1
Prothonotary	1
Court Registrar	1	1	3	1
Attorney General				1
Member of Parliament	1	5	7	7
Legal Aid Commission	2	14	3	2
Third Party	10	38	41	3
Government Department	1	2	7	2
Non-Client	31	20	18	7
Solicitor	61	55	43	86
Department of Consumer Affairs			1
Judge			5	1
Sub-Total	935	1067	1189	1546
Law Society-initiated investigations	136	46	56	56
Total Complaints Assessed	1071	1113	1245	1602

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2.32 These figures indicate that the great majority of complaints come from clients or former clients, and that the people only occasionally seek or receive legal or official assistance in making the complaint to the Law Society.

Investigation of complaints by the Professional Standards Department

2.33 The Professional Standards Department of the Law Society opens a “complaints file” and advises the complainant that the complaint has been received and the name of the particular legal officer looking after the matter for the purposes of future contact. The complaint is then examined by the legal officer and a summary of the legal officer’s understanding of the main grounds of complaint is forwarded to the complainant for approval and comment. A copy of the complaint and the summary is also forwarded to the solicitor whose reply is requested within fourteen days. If the complainant, upon receipt of the Law Society’s summary of the complaint, subsequently raises further issues the solicitor will again be contacted for a response. The legal officer will also seek to clarify any outstanding matters at this stage.

2.34 Pursuant to the Act the Law Society has appointed a number of officers of the Law Society to be trust account inspectors.³⁸ The Commission is advised by the Law Society that routine accounting and regulation matters are no longer referred to the Professional Conduct Department but are carried out by the Trust Account Department of the Law Society. Only where a trust account inspection raises questions about professional conduct are such matters referred to the Professional Conduct Department.³⁹ A staff member of the Professional Conduct Department has been made a trust account inspector, so that if the Department is satisfied that an inspection is required urgently, this staff member would undertake the inspection. However normally such an investigation would be done by a staff member from the Trust Account Department.

2.35 The legal officer who has carriage of the complaint file prepares a report on the complaint, which summarises the facts, attaches relevant documents, and makes a recommendation as to further action. Common recommendations include that the matter be dismissed, be referred to the Legal Profession Standards Board or to the Legal Profession Disciplinary Tribunal.

Failure to respond to the Law Society’s requests

2.36 The Commission is advised by the Law Society that where a solicitor fails to respond within fourteen days to the Law Society’s request for a reply to the complaint, a reminder letter is promptly dispatched to the solicitor. The Law Society has recently begun including with the reminder letter a copy of a recent article from the Law Society Journal⁴⁰ which details six cases in which the failure of the solicitor to respond to the Law Society’s enquires was held to amount to unsatisfactory professional conduct. The article advises that:

There can be no doubt that a solicitor has a duty to respond promptly and to show candour in the answers being provided and failure to do so amounts to unsatisfactory professional conduct.⁴¹

2.37 The article also notes that in some instances failure to respond to the Law Society’s enquires has amounted to professional misconduct.⁴² We are advised by the Department that approximately six reminder letters (and a copy of the article) are sent out each month and that upon receipt of such correspondence, the solicitor usually responds promptly. The New South Wales Solicitors Manual also warns solicitors of the consequences of failing to respond to the Society’s call for an explanation of the solicitor’s conduct.⁴³ Section 35(2)(c) of the Act empowers the Law Society Council to refuse to issue, to cancel or to suspend the practising certificate of a solicitor who “being required by the Law Society Council to explain specified conduct by him or her as a solicitor fails, and continues to fail, to give an explanation to the Council”. The Manual notes that the Law Society Council frequently brings the provisions of the section to the notice of solicitors who are unusually dilatory in responding to an enquiry from the Society as to their professional conduct, and that the Council not infrequently resolves to cancel the certificate of a solicitor who still fails to respond after receiving a warning that the Council may exercise its power under the section.⁴⁴ The Commission has been advised by the Department that most solicitors, upon being informed that the Complaints Committee’s recommendation of cancellation of the solicitor’s practising certificate will be heard shortly by the Law Society Council, provide the requisite information.

2.38 Where the failure to respond reaches the level of the Council, the Council usually passes a resolution requiring an explanation from the solicitor for this failure. Where the solicitor fails to give a satisfactory answer within the specified time, a further resolution is passed by Council cancelling the solicitor’s practising certificate. Since 1988, 131 resolutions have been passed seeking an explanation from the solicitor as to his or her failure to reply to the Law Society’s correspondence and indicating a date upon which the Law Society would cancel his or her practising certificate.⁴⁵ Five solicitors’ practising certificates have been subsequently cancelled by the Law Society Council pursuant to section 35(2)(c).

Delegated powers of the Complaints Committee

2.39 The Law Society Council has delegated most of its disciplinary powers to its Complaints Committee, except for those powers enabling a complaint to be referred to one of the two disciplinary bodies. In those cases where the Complaints Committee is of the opinion that referral is warranted it must make an appropriate recommendation to the Council. At each of its fortnightly meetings the Complaints Committee, with the benefit of the legal officer’s report, must decide upon the appropriate course of action in respect of the large number of complaints before it.

2.40 Where the complainant has supplied insufficient details of the complaint, the Complaints Committee has the delegated power pursuant to the Act to request further particulars. It may also require the complainant to verify the complaint and the further particulars by statutory declaration.⁴⁶ Section 132 provides for the summary dismissal of frivolous or vexatious complaints. The power to dismiss such complaints has also been delegated to the Complaints Committee.

2.41 Where the Complaints Committee is satisfied that a complaint does not involve unsatisfactory professional conduct or professional misconduct, then it has the delegated power to dismiss the complaint.⁴⁷ However if the Committee is satisfied that the complaint involves unsatisfactory professional conduct, then it can either reprimand the solicitor (though this course of action is subject to the consent of the solicitor who may request that the Law Society Council formally assess the complaint⁴⁸) or alternatively recommend to the Council that the complaint be passed on to the Legal Profession Standards Board.⁴⁹ The Complaints Committee also has the delegated power to dismiss the complaint even though it finds unsatisfactory professional conduct, but in this case it must be satisfied that the solicitor is generally competent and diligent and that no other material complaints have been made against the solicitor. Where the Complaints Committee is of the opinion that conduct involved is more serious and raises the issue of professional misconduct then it may recommend to the Law Society Council that the complaint be referred to the Disciplinary Tribunal.⁵⁰

2.42 Of the 1245 total complaints assessed by the Department in 1990:

• 698 (56%) complaints were dismissed after investigation by the Complaints Committee pursuant to its delegated power on the grounds that each complaint did not involve a question of unsatisfactory professional conduct or professional misconduct;
• 299 (24%) complaint files (where there was no evidence of unsatisfactory professional conduct or professional misconduct) were closed with the consent of the complainant as the matter was resolved between the parties directly or through mediation;
• 55 complaints were dismissed prior to investigation on the grounds that such complaints were frivolous or vexatious;
• a reprimand (with the consent of the solicitor) was given in respect of 30 complaints;
• the details of 12 complaints were included as particulars to a number of formal complaints made by the Law Society Council to the Standards Board;
• the details of 55 complaints were included as particulars to a number of formal complaints made by the Law Society Council to the Disciplinary Tribunal;
• eight complaints were dismissed by the Complaints Committee with a finding that there had been unsatisfactory professional conduct;
• an admonition was given by the Law Society in respect of seven complaints;⁵¹
• one complaint was dismissed by the Complaints Committee because of the complainant’s failure to provide requested information; and
• 80 matters remain to be considered.

The Law Society Council

2.43 As noted above, the Law Society Council has not delegated all of its disciplinary powers. Only the Law Society Council can refer matters involving questions of unsatisfactory professional conduct or professional misconduct to the Standards Board and the Disciplinary Tribunal, respectively. Section 135 of the Act provides that the Law Society Council may, of its own motion make a complaint to the Board or Tribunal⁵² (without the need for a member of the public to have made a formal complaint). This power has not been delegated by the Law Society Council.

2.44 Where the Law Society has retained its disciplinary powers, the usual practice is for the Complaints Committee to submit a report and make one or a number of recommendations to Council. The report and recommendations are then considered by the Law Society Council. The Council is not bound to follow the Complaints Committee’s recommendations. It may decide to dismiss the matter despite the Complaints Committee’s recommendation to refer the matter for hearing, or vice versa. The Council may also require that further investigation be undertaken by the Complaints Committee.

2.45 Where the Law Society Council resolves to refer a complaint to the Standards Board or the Disciplinary Tribunal, the Professional Conduct Department takes over the matter on behalf of the complainant and prepares the case against the solicitor. Under the rules of the Standards Board and the Disciplinary Tribunal, where a complaint is referred, the originating document (ie the original complaint made to the Law Society Council) must be annexed to the Statement of Complaint. The Law Society Council as a matter of policy, prefers to make a complaint to one of the disciplinary bodies pursuant to section 135 rather than refer a complaint pursuant to section 134(1)(b)(i) or (ii) of the Act. Whereas a referral pursuant to section 134 would require each individual complaint to be referred separately to one of the disciplinary bodies, the making of a complaint pursuant to section 135 allows the Law Society Council to aggregate a number of related individual complaints with respect to the same solicitor in the interests of administrative efficiency. The Commission is assured by the Department that where a complainant has specifically requested a compensation order in his or her complaint, the disciplinary body hearing the aggregated complaint would be made aware of this request.

HANDLING COMPLAINTS ABOUT BARRISTERS

Form of the complaint

2.46 The position under the Act is the same with respect to complaints made against either solicitors or barristers. Pursuant to section 130 of the Act, a person who wishes to complain about the conduct of a barrister may lodge a formal, written complaint with the Bar Council. Again the complaint must be in the form required by the Act, with full details of the barrister involved, the alleged conduct and the relief sought by the complainant.⁵³ The Bar Association also has produced a printed complaint form and an explanatory brochure to aid those wishing to lodge a complaint.

Reception of complaints

2.47 In its submission to the Commission,⁵⁴ the Bar Association advises that potential complainants sometimes telephone the Bar Association to enquire about their entitlement to lodge a complaint about a barrister’s conduct or seeking assistance to lodge a complaint. All enquiries are directed to the Professional Affairs Director (the “PA Director”) of the Bar Association. The Bar Association advises that sometimes a call to the Association is in the nature of an enquiry about fees or a change in a barrister and that such matters can be quickly resolved by the PA Director.⁵⁵ The PA Director has a staff of one secretary and a junior assistant. Section 67 of the Act provides that the costs incurred by the Bar Council in exercising its disciplinary functions are to be funded from the Statutory Interest Account maintained by the Law Society. Accordingly, the cost of the administrative and organisational support provided to the Council by the PA Director and her staff in respect of the Council’s disciplinary functions under the Act is covered by the Statutory Interest Account.

2.48 The Commission understands that complaints are also often received by the President, the Registrar, the Director of Professional Affairs or a member of the Bar Council known to the complainant.⁵⁶ All complainants are asked by these persons to put their complaints in writing, and these are forwarded to the PA Director.

2.49 The Bar Association advises⁵⁷ that a complainant is sent a letter which acknowledges the receipt of the complaint and advises the complainant that the matter has been referred to an investigating committee. An explanatory brochure is sent to the complainant, if it appears that they have not yet received one. This explanatory brochure commences as follows:

If you have a complaint against a barrister, you should first consider going to your solicitor for help in sorting out the problem. Complaint forms are available from the Association. Such a form should be completed and forwarded to the Association. The Association will acknowledge receipt of the complaint.

Categorisation of the complaint

2.50 In 1990, the Bar Council received 61 written complaints in respect of 74 barristers. The Bar Council itself investigated 5 barristers on its own initiative.⁵⁸ The Bar Association has advised the Commission that for the purpose of compiling its figures, where one complainant has made a written complaint involving a number of barristers, it has treated each allegation as a separate complaint. The Bar Association has provided the following breakdown of the 79 separate complaints it assessed in 1990 according to the type of conduct alleged:⁵⁹

Pressure (to settle, plead or change instructions)	6
Failure to appear at court of conference	4
Negligence/Incompetence/Lack of communication	12
Failure to carry out instructions/acting contrary thereto	4
Overcharging/Fee dispute	7
Delay in completing chamber work or failure to return brief/papers	4
Discourtesy/Abuse	5
Conflict of interest	5
Misleading conduct	6
Complaint concerning private dwelling	9
Abuse of privilege	5
Direct contact with client/No instructing solicitor	2
Criminal charges against barrister	1
Breach of advertising/Public appearance rules	2
Direct contact with client or opposing party	1
Withdrawing without justification or late in passing brief	6
Total	79

2.51 Over the period 1988-1991, the single largest category of complaints was for “negligence/incompetence/lack of communication/poor attitude”, with 14% of the total. Other complaint categories of conduct complained of relatively frequently include “Pressure to settle, plead or change instructions”, “Overcharging/fee disputes” and “Delay in completing chamber work or failing to return briefs or papers”.

The source of complaints

2.52 At the request of the Commission, the Bar Association has provided the following breakdown of the complaints it has received in the years 1988 to 1991 (including a small number in which the conduct complained of occurred prior to 1988) according to the source of the complaint:⁶⁰

Number of complaint received pursuant to section 135	1988	1989	1990	1991
Members of the public	41	52	54	45
Solicitors	10	52	54	45
Barristers	5	3	9	9
Judges		4	2
Commonwealth Attorney General	2	1
Corporate Affairs Commission		1
Commonwealth DPP		1		1
Law Society				3
Legal Aid Commission		1		1
Prothonotary	1
Solicitor General (NSW)			1
Other				1
Sub-total	59	76	79	74
Bar Association-initiated investigation	4	4	5	7
Total complaints assessed	63	80	84	81

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2.53 As may be seen, the majority of complaints come from members of the public⁶¹ - usually clients or former clients. The next largest category is complaints from solicitors, followed by complaints from other barristers. The remainder come from a wide range of public or courts officials.

The Professional Conduct Committees

2.54 On 19 December 1991, the Bar Council resolved,⁶² to delegate many of its disciplinary powers to each of four Professional Conduct Committees it had established for this purpose.⁶³ Accordingly, the Professional Conduct Committees have the responsibility to assist complainants to enable them to make their complaints in accordance with the Act’s requirements. Each Professional Conduct Committee has the power to require further particulars from the complainant. Where further particulars are not furnished following a request or where a Professional Conduct Committee is of the opinion that a particular complaint is frivolous or vexatious, it has the power to dismiss the complaint. All other complaints are then investigated by a Professional Conduct Committee.

2.55 Professional Conduct Committee members are chosen by the President of the Bar Association. Each member of the Bar Council, excluding the President and the Senior Vice President is a member of a Professional Conduct Committee. Each Committee has between seven and nine members and is comprised of junior and senior members of the Bar Council and a number of barristers not being members of Council. In addition, in 1992 each Professional Conduct Committee has two lay members, up from one in previous years. The President also elects a chairman for each Committee, who must be a member of the Bar Council.

2.56 The Commission is advised that each Committee meets fortnightly and that the PA Director refers each new complaint to one of the four Professional Conduct Committees, depending upon their relative workloads. The Commission understands that where a previous complaint has been made against a barrister and heard by one of the Committees, all efforts will be made to refer any fresh complaints to the same Committee.⁶⁴ The chair of the Committee then allocates special responsibility for the matter to one member of the Committee.

2.57 Where the complaint does not provide the particulars required by the Act, the complainant will be asked for further information. Both the PA Director and the relevant Professional Conduct Committee assist the complainant where required to ensure that the complaint is in the form required by the Act. A summary of the complaint is then prepared by the PA Director and sent to the complainant for his or her approval and comment. The PA Director then refers the complaint and the summary to the barrister concerned and requests a response within 14 days. The Bar Association advises that it is rare for barristers to fail to respond within the time frame provided and that any such failure is normally the subject of an immediate telephone follow-up by the PA Director.⁶⁵

2.58 The Committee member having carriage of the matter receives copies of all correspondence in relation to the matter and liaises with the PA Director concerning the investigation to be undertaken. Copies of all relevant correspondence are also given to the Chair of the Committee, who maintains overall control of the Committee’s work. The Bar Association advises that the PA Director prepares for each fortnightly meeting of each Professional Conduct Committee a list of files indicating the current position for each matter. At each Committee meeting the member having carriage of a particular matter (or in his or her absence, the PA Director) will report on the progress of the matter.⁶⁶

Summary dismissal of frivolous or vexatious complaints

2.59 Section 132 of the Act provides that a Council may dismiss a complaint without further investigation if particulars of the complaint are not furnished, the complaint or particulars provided are not verified as required by Council, or if the complaint is frivolous or vexatious. As noted above, the Bar Council has delegated these powers to its Professional Conduct Committees. The Commission is advised by the Bar Association that the Professional Conduct Committees have chosen not to use this power. Section 132 refers to “dismissal without further investigation”. The Bar Association advises that all complaints are fully investigated and that any decision to dismiss, whether pursuant to section 132 or section 134, is made by the Bar Council.

The investigation of complaints

2.60 In its Submission, the Bar Association advises that the investigation commonly undertaken by the Committee member generally encompasses the following: (a) obtaining the comments of the barrister involved; (b) depending on the barrister’s response, a further comment by the complainant may be sought; (c) obtaining the instructing solicitor’s comments; (d) obtaining the comments of the opposing barrister and solicitor or court officers, if relevant; (e) reviewing a copy of the transcript of proceedings, judgment, or court documents, if relevant; (f) obtaining statements from any independent witnesses; and (g) obtaining any final comments or information needed from the complainant and/or the barrister involved.⁶⁷

2.61 The Bar Association notes in their submission that when comments of persons other than the complainant or the barrister complained of are sought, either specific enquiries are put to them or they are shown all or part of the complainant’s response, and asked for a response.⁶⁸

2.62 Once an investigation is complete, the responsible member of the Professional Conduct Committee prepares a report on the complaint. Reports usually include the Professional Conduct Committee member’s recommendation(s) about how the complaint should be dealt with. The report is normally circulated among the other Committee members. The Bar Association advises that if the matter is complicated or the report lengthy a special Committee meeting may be called to allow the members to consider the matter in greater depth. Other Committee members may have access to the file at any time. All lay members get a copy of each report and have access to all of the relevant correspondence.⁶⁹

The Committee’s report

2.63 The report is then considered by the Professional Conduct Committee, which may: adopt the report, amend the report, or direct that further investigations be made. In the event of a failure to reach a consensus, a minority report also may be prepared.

2.64 The Bar Association advises that the Committee’s final report to the Bar Council would normally provide a history of the litigation the subject of the complaint, identify the complaints made, identify the investigations made and the responses received, include an analysis of relevant parts of the transcripts or documents (as appropriate), provide an analysis of the conduct complained of with respect to breaches of standards, and make recommendations to the Bar Council as to dismissal or referral to the Standards Board or the Disciplinary Tribunal.⁷⁰

Consideration of the complaint by the Bar Council

2.65 Following its adoption by the Committee, the Report is then referred to the Bar Council for consideration, usually at the next Council meeting. In contrast to the operation of the Complaints Committee of the Law Society, the four Professional Conduct Committees have only been delegated the power to dismiss frivolous and vexatious complaints and those in which further particulars are not supplied by the complainant, as requested. The Bar Council is not obliged to accept the recommendation(s) of the Professional Conduct Committee. We are advised by the Bar Association, that from time to time, the Bar Council directs that the report be returned to the Committee for further investigation and that it has sometimes come to a different conclusion based on the facts presented.⁷¹

2.66 Where the Bar Council is satisfied that a complaint does not involve unsatisfactory professional conduct or professional misconduct, it has the power to dismiss the complaint. However, where the Bar Council is of the opinion that the complaint does involve a question of unsatisfactory professional conduct, it has a number of options open to it.⁷² It can reprimand the barrister (subject to obtaining his or her consent), refer the complaint to the Standards Board or alternatively dismiss the complaint. However dismissal is only possible where the Bar Council is satisfied that the barrister is generally competent and diligent and that no other material complaints have been made against the barrister.⁷³ Where the Bar Council is satisfied that the complaint does involve a question of professional misconduct it refers the complaint to the Disciplinary Tribunal.⁷⁴

2.67 Where the Council considers that a reprimand is the appropriate form of discipline, (that is when it is of the opinion that the complaint involves a question of unsatisfactory professional conduct and the barrister has consented to a reprimand) this usually occurs in chambers and is delivered personally by the President of the Bar Association.⁷⁵

2.68 Of the 79 separate complaints assessed by the Bar Council in 1990:

• the Bar Council dismissed 44 complaints after investigation on the grounds that there was no question of unsatisfactory professional conduct or professional misconduct;
• on nine occasions the Bar Council resolved to refer a complaint to the Disciplinary Tribunal;
• six complaints were withdrawn (in some of these cases the barrister was nevertheless counselled or reprimanded);
• a reprimand was given by the Bar Council in respect of six complaints;
• on four occasions the Bar Council resolved to refer a complaint to the Standards Board;
• two complaints were dismissed by the Bar Council after investigation on the grounds that they were frivolous or vexatious;
• in two cases in which the Bar Council had initiated the investigation, the Council decided to take no further action; and
• six complaints remain to be considered.⁷⁶

Complainants advised of Bar Council’s decision

2.69 The Act provides that a Council must notify the complainant of its decision (including the reasons for its decision) and advise the complainant of his or her right to seek a review of the decision from the Legal Profession Conduct Review Panel.⁷⁷ The Bar Association advised in their submission that as well as providing the information required by the statute, complainants are usually forwarded a copy of the final report considered by the Bar Council. In a small number of cases the report is not sent to the complainant for the reason that the Professional Conduct Committee believes that

providing the complainant with the text or flavour of the responses by the barrister or witnesses might inflame the complainant in an undesirable or dangerous way and unnecessarily.⁷⁸

THE LEGAL PROFESSION CONDUCT REVIEW PANEL

Notification of the complainant’s right to a review

2.70 Where a complaint has been dismissed by the Council, or by Complaints Committee pursuant to its delegated powers, the person making the complaint has the right to have that decision reviewed by the Legal Profession Conduct Review Panel.⁷⁹

2.71 The explanatory brochure forwarded by the Law Society to those who request a complaint form contains the following information:

If the Law Society dismisses your complaint, you may refer the matter to the Legal Profession Conduct Review Panel which is comprised of one solicitor and two lay members. The Panel has the power to review the material on the Law Society’s file. That review must be requested by you in writing within two months after the Council’s decision. You will be given further details of your right of review upon the Society’s conclusion of its investigation.

2.72 The explanatory brochure produced by the Bar Association also contains information as to the Panel’s functions and powers. Both the Law Society and Bar Association advise that upon dismissal of a complaint, complainants are immediately advised in writing of Council’s decision and at the same time are reminded of their right to have such decision reviewed by the Legal Profession Conduct Review Panel.

“Deemed dismissals”

2.73 Section 134(4) of the Act provides that for the purposes of the complainant’s right to seek a review of a Council’s decision from the Panel, the Council shall be deemed to have dismissed a complaint if it has not notified the complainant of its decision with respect to the complaint within six months after the making of the complaint.⁸⁰

2.74 The Commission is advised by the Law Society that the majority of complaints received are dealt with by the Law Society within the six month time period. In 1990, the average turn-around time⁸¹ for the investigation of a complaint by the Law Society was 140 days.⁸² The Bar Council generally takes longer than six months to complete its investigation and assessment.⁸³ The Bar Association has advised the Commission that delay was often experienced in obtaining comments form the solicitors involved in the matter and that in their opinion such matters were treated seriously by the barrister involved and the Bar Association.

2.75 In those cases in which the Law Society’s investigation and assessment of the complaint extends beyond the six month period the Law Society does not formally notify the complainant of the “deemed dismissal” and, therefore, of the right to seek a review from the Panel. The Bar Council adopts the same policy. As mentioned above, the Panel does not exercise investigative powers beyond review of the complaint file. Therefore, if the complaint file is blank or incomplete, the Panel’s power to review the Council’s “deemed dismissal” appears to be meaningless.

2.76 The Commission is advised by the Professional Conduct Department of the Law Society that only on two occasions has a complainant relied upon the deemed dismissal provisions and sought a review from the Panel. In both cases, by the time the application was dealt with by the Panel, the Law Society had concluded its investigation and was then able to refer their completed file to the Panel. It would appear therefore, that where there is “deemed dismissal”, the complainant has little to gain by lodging an application with the Panel . The Commission is advised by the Bar Association that it is not aware of any instance in which a complainant has sought a review from the Panel on the basis of a deemed dismissal.

Composition of the Panel

2.77 Section 126 of the Act provides that the Legal Profession Conduct Review Panel is to consist of one barrister, one solicitor and four lay persons. The barrister and solicitor members (who must be practitioners of at least five years standing⁸⁴) are appointed by the Attorney General upon the recommendation of the relevant professional body. The lay persons are also appointed by the Attorney General, after consultation with the lay members of the Legal Aid Commission, the Law Foundation and any other bodies that the Attorney General thinks appropriate. The Act provides only that the lay persons must be “neither barristers nor solicitors”.⁸⁵ One of the lay persons is appointed chairperson by the Attorney General. In 1989, the Act was amended to provide also for the appointment of alternate members who are eligible to sit on the Panel in the event of the absence or sickness of certain members.⁸⁶ The Commission understands that at present two alternate solicitor members has been appointed by the Attorney General. The Panel has sought the appointment of an alternate barrister member but to date there has been no appointment by the Attorney General.

2.78 Where the Panel is undertaking a review of a Law Society Council decision to dismiss a complaint made about a solicitor, it is constituted by two lay members and a solicitor. Where the Panel is reviewing a decision of the Bar Council to dismiss a complaint made about a barrister the Panel would be constituted by two lay members and a barrister member.⁸⁷

The Panel’s procedures for review

2.79 The procedure for calling meetings of the Panel and the conduct of the business at each meeting is determined by the Chairperson. Minutes of each Legal Profession Conduct Review Panel meeting are recorded. For the purposes of review, the Panel is entitled to view the record of the Council’s investigation of the complaint and all other documents held by the Council in relation to that investigation.⁸⁸ The Commission is advised by the Chairman of the Panel that he considers that the investigative power of the Panel only extends to reviewing the Council’s documentation. No parties or witnesses are called by the Panel - the procedure adopted is a paper review only. Section 139(2) of the Act states that the Panel shall consult with the relevant Council before it completes its review of the Council’s decision to dismiss a complaint.

Reviews of Law Society Council decisions

2.80 Statistics supplied to the Commission by the show that at 1 December 1991, the Panel had received 520 applications requesting a review of decision of the Law Society Council.⁸⁹ When the Panel receives an application from a member of the public requesting review of a Law Society Council decision to dismiss a complaint, it immediately contacts the Law Society’s Professional Conduct Department and requests the relevant file. The Panel regularly consults with the Professional Conduct Department and has come to an arrangement with the Department such that, if the Panel is not satisfied with the material in the Law Society’s file (for example if the Panel is of the opinion that some relevant documents should be obtained), it makes an informal request to the Law Society for further information. Thus, on occasion, thee is something more than a mere paper review, but the complainant is not given the parallel opportunity to provide fresh evidence to the Panel.

Reviews of Bar Council decisions

2.81 At 1 December 1991, the Panel had received 30 applications for a review of a decision of the Bar Council. The Commission has been advised by the Panel that for the period 1 January 1988 to early December 1991, the Panel was precluded from reviewing any decision of the Bar Council due to that Council’s refusal to hand over any of its files. The Commission understands that the Bar Council’s refusal stems from its concern over the confidentiality of these files and their susceptibility to Freedom of Information requests when in the hands of the Panel. In addition, the Bar Council considered that while the Act entitled the Panel “to view” all documents held by the Bar Council in relation to the complaint, it did not empower the Panel to copy or take possession of a file. The Commission has been advised that a compromise has recently been reached and that, accordingly, the Panel now receives a photocopy of the Bar Council’s file. Thus, for the first time since the Act came into operation in 1988, the Panel will begin to review decisions of the Bar Council to dismiss complaints.

The Panel’s powers

2.82 Upon completion of its review, the Panel may uphold the Council’s decision or recommend to the Attorney General that the matter be referred to the Standards Board or the Disciplinary Tribunal.⁹⁰ However, the Act provides that prior to doing so, the Panel must notify the Council of its decision and allow the Council one month to refer the matter to the appropriate disciplinary body itself, if it so wishes.⁹¹ Each recommendation must be accompanied by a statement of the Panel’s reasons for making the recommendation.⁹² The Act does not provide for the Panel to notify the complainant of its decision. However, the Commission is advised that, in practice, the Panel does notify complainants of the outcome of the review but does not give extensive reasons for its decisions.

2.83 The Act specifically states that the Attorney General is not bound to follow the Panel’s recommendation, but shall take such recommendation into account.⁹³ The Attorney General may uphold the Council’s decision to dismiss the complaint, or may refer the complaint to the Standards Board or to the Disciplinary Tribunal as he or she sees fit.⁹⁴ The Attorney General has a duty to notify the complainant of his/her decisions and reasons.⁹⁵

Results of the Panel’s review

2.84 The Panel has made a determination in respect of 395 of the 530 applications it has received for review of a Law Society Council decision. The Panel has notified the Law Society Council on 16 occasions of its intention to make a recommendation to the Attorney General that a complaint that was dismissed by the Council be referred to the Standards Board or the Disciplinary Tribunal.⁹⁶ On two of these occasions the Law Society Council resolved to alter its previous decision and refer the complaint itself to the appropriate disciplinary body. In respect of the remaining 14 matters, the Panel made a recommendation to the Attorney General that a Council’s decision to dismiss be reversed. In eleven of these cases the Panel recommended that the matter be referred to the Standards Board and in three cases that the matter be referred to the Disciplinary Tribunal.

2.85 To date, to the Panel’s knowledge, the Attorney General has concluded his assessment of only two matters. On one occasion the Attorney General dismissed the complaint. On the other occasion the Attorney General referred the complaint to one of the disciplinary bodies but this complaint was subsequently withdrawn with the consent of the parties.⁹⁷ The Commission is awaiting a reply from the Attorney General’s Department to our request for information about the status of the remaining matters referred to the Attorney General by the Panel.

THE LEGAL PROFESSION STANDARDS BOARD

Jurisdiction and composition of the Board

2.86 Complaints involving questions of unsatisfactory professional conduct (rather than professional misconduct) which are not disposed of by the professional Councils are required by the Act to be dealt with by the Legal Profession Standards Board.

2.87 Section 127 of the Act provides that the Board shall consist of at least two barristers, at least two solicitors, and at least one lay person (being neither a barrister or a solicitor). The Act provides for the Attorney General to appoint the barristers and solicitors upon the nomination of the Bar Council and the Law Society Council, respectively.⁹⁸ The lay member is appointed by the Attorney General after consultation with the lay members of the Legal Aid Commission, the Law Foundation and such other bodies as the Attorney General considers appropriate.⁹⁹ The Act provides for a chairperson is to be nominated by the Attorney General, such person being either a barrister or a solicitor member. Provision has also been made in the Act for the appointment by the Attorney General of acting members and an acting chairperson in the event of illness or absence of a usual member or chairman. At present the Standards Board consists of seven barristers (all Queen’s Counsel), nine solicitors and three lay persons.

2.88 Where the Standards Board hears a complaint involving the conduct of a solicitor then the Board is constituted by two solicitor members and one lay member. Where the Board hears a complaint involving the conduct of a barrister, the Board is constituted by two barrister members and one lay member.¹⁰⁰

Referrals to the Board

2.89 Between 1 January 1988 and 1 December 1991, the Law Society received 4737 complaints¹⁰¹ from members of the public¹⁰² and itself initiated 294 investigations.¹⁰³ Of this total of 5031, only 40 complaints involving 24 solicitors were considered to be appropriate for referral to the Standards Board.¹⁰⁴

2.90 Between 1 January 1988 and 31 December 1991 the Bar Council received 223 written complaints in respect of 244 barristers¹⁰⁵ and itself initiated investigations against 19 barristers. As noted above, where one complainant has made complaints against a number of barristers, each has been treated as a separate complaint in the Bar Association’s figures. Of the total 263 separate complaints investigated and assessed by the Bar Council, only ten were considered appropriate for referral to the Standards Board.¹⁰⁶

Conduct of a hearing before the Board

2.91 Hearings held by the Standards Board are meant to be relatively informal. The Standards Board is not bound by the usual rules of evidence and can inform itself on any matters it sees as appropriate. Standards Board hearings are not open to the public and therefore only parties to the in camera hearing (and their legal representatives) can attend.¹⁰⁷ The complainant is only entitled to attend the hearing if the matter involves a question of compensation or if a specific order has been requested, but even in these situations the complainant can only appear in those parts of the hearing where those issues are relevant. The Standards Board has the power to summon persons to give evidence or to produce documents.¹⁰⁸

2.92 If in the course of the hearing the Standards Board considers that the complaint involves a question of professional misconduct, then the Standards Board must terminate the hearing and refer the complaint to the Disciplinary Tribunal.¹⁰⁹

The Board’s disciplinary powers

2.93 If at the conclusion of the hearing the Standards Board is satisfied that conduct involved does amount to unsatisfactory professional conduct, then it has a number of disciplinary powers open to it. The Standards Board has the power to reprimand the legal practitioner, order that further legal education be undertaken, or impose a fine of up to $2000. The Standards Board has further powers in relation to a solicitor: it may require that the solicitor seek management advice; order periodic inspections of the solicitor’s practice; order that a solicitor cease to employ a particular person; restrict the sort of work the solicitor undertakes or place a restriction on the solicitor’s practising certificate.¹¹⁰

2.94 The Standards Board also has the power to make a number of further orders to benefit the complainant. It can order the payment of compensation not exceeding $2000. However, the other remedial orders can only be made: (1) if it has been specifically requested by the complainant when lodging his or her complaint with the Law Society Council or Bar Council, and (2) where both the complainant and, more importantly, the legal practitioner consent to the making of the order. Where these two requirements are satisfied the Standards Board has the power to make an order requiring the legal practitioner to repay or waive any fees charged, undertake further legal work on behalf of the client, waive any lien in respect of documents or pay compensation exceeding $2000 to the person who has suffered loss. The Standards Board can make one or a number of these orders.¹¹¹ The Standards Board also has the power to make ancillary orders and to order that the solicitor pay the costs of the other parties.¹¹²

2.95 Both the Law Society’s and Bar Association’s explanatory brochures advise complainants of Board’s powers and the statutory requirement that any orders to their benefit must be specifically requested by them when making their complaint. The Commission is advised by both professional associations that they take a fairly relaxed approach to this requirement and that the complainant may request such orders right up until the time the matter is referred by the appropriate Council to the Standards Board or the Disciplinary Tribunal.

The Board’s determinations

With respect to solicitors

2.96 It is not uncommon for the Law Society and Bar Councils to aggregate a number of complaints about a single legal practitioner and refer these to the Standards Board. Where the complaints relate to the same factual situation and legal practitioner, the Standards Board often decides to conduct one hearing in respect of all the complaints rather than a number of hearings. The Registrar of the Standards Board has advised the Commission that the Board has conducted 22 hearings to date in respect of solicitors. One complaint was withdrawn with the consent of the parties prior to hearing and as at 31 December 1991, one complaint had not yet proceeded to a hearing. The following list is a summary of the Board’s determinations in relation to the 22 hearings:¹¹³

• costs were ordered on 18 occasions;
• 14 reprimands were issued;
• six compensation orders were made;
• four orders were made that the solicitor’s practice be subject to periodic inspection;
• four orders were made that the solicitor employ a person belonging to a specific class (eg a part time experienced solicitor or an accountant);
• three orders were made requiring the solicitor to undertake further legal education;
• one order each was made that a solicitor seek management advice, that the practising certificate of a solicitor be restricted, and that a solicitor pay a fine; and
• in one case the complaint was found “not proven”.

With respect to barristers

2.97 The Commission is advised by the Registrar of the Standards Board that four determinations have been made with respect to barristers. One of these determinations corresponds to a complaint which was settled by the parties prior to the Board’s hearing. The terms of the settlement were then ratified by the Board. A reprimand was given by the Board in one matter and in the remaining two matters the Board held that the complaint was not proven.¹¹⁴ As at 31 December 1991, five matters had not yet been heard by the Board. Two of these five matters were placed on hold pending the outcome of hearings in the Disciplinary Tribunal with respect to the same barristers.¹¹⁵

Rights of appeal

2.98 A party to the Standards Board’s hearing may make an application to the Disciplinary Tribunal for a review of the Standards Board’s decision. However, where the party requesting the review is the person who initially made the complaint then the application is limited to those aspects of the Standards Board’s hearing that dealt with the loss suffered by that person.¹¹⁶

THE LEGAL PROFESSION DISCIPLINARY TRIBUNAL

Composition and jurisdiction of the Disciplinary Tribunal

2.99 The Act provides that there must be at least two barristers, two solicitors and two lay people appointed to the Disciplinary Tribunal by the Attorney General.¹¹⁷ At present, in addition to the President (who is a solicitor), there were five barrister members (all Queen’s Counsel), five solicitor members and six lay members of the Disciplinary Tribunal. The Act also provides for the appointment of acting members in the event of illness or absence of members.

2.100 The Tribunal may review decisions of the Standards Board, and also conducts hearings into matters referred to it by the Councils or by the Attorney General (where a complaint was originally dismissed) where the conduct involved raises the question of professional misconduct. In either case the Disciplinary Tribunal is constituted by three members, of which one is to be a lay member. If the Tribunal is examining the conduct of a solicitor, the remaining two members will be solicitor members; likewise if the Tribunal is examining the conduct of a barrister, the remaining two members will be the barrister members. If the President is not sitting, the President nominates one of the sitting legal members to preside in a particular hearing.¹¹⁸

Conduct of the Tribunal

When reviewing Board decisions

2.101 Where an application is made to the Disciplinary Tribunal to review a decision of the Standards Board, the matter will be dealt with by way of a new hearing and fresh and further evidence may be given to the Tribunal. However in all other respects the review is conducted in much the same manner as the initial hearing of the Standards Board in that the same parties may attend, the hearing will be in the absence of the public and the Disciplinary Tribunal has the power to summon persons to attend the hearing and/or to produce documentation.¹¹⁹ The Registrar of the Disciplinary Tribunal has advised the Commission that only one solicitor has made an application to the Disciplinary Tribunal for a review of a decision of the Standards Board since the system came into effect in 1988. This review resulted in the Board’s orders being quashed by the Tribunal.¹²⁰

When hearing matters itself

2.102 Where a complaint involving a question of professional misconduct has been referred to the Disciplinary Tribunal, the matter will be dealt with by way of a formal hearing. In contrast to the hearings of the Standards Board, the rules of law governing the admission of evidence are applicable to hearings conducted by the Tribunal.¹²¹ Although Tribunal hearings are normally conducted in public,¹²² the Act provides that only the legal practitioner who is the subject of the complaint, the relevant Council, the Attorney General and the original complainant are entitled to appear at the hearing.¹²³ As is the case with hearings before the Standards Board, the complainant may only appear at the hearing to the extent that a matter of compensation is being considered.¹²⁴ Parties to the hearing may appear personally or through counsel.¹²⁵ The Tribunal also has the power to summon persons to give evidence or to produce documents.¹²⁶

2.103 Those determinations of the Disciplinary Tribunal relating to solicitors regularly are published by the Law Society as a supplement to the Law Society Journal. The Bar Association includes a summary of determinations relating to barristers in its journal, the Bar News.

The Tribunal’s powers

On review

2.104 Upon completion of the review, the Disciplinary Tribunal may uphold the Standards Board’s decision or, alternatively, make one or more of the orders that the Standards Board could have made in relation to the complaint.¹²⁷ Where the Disciplinary Tribunal considers that the conduct is more serious and that there is a question of professional misconduct, the Tribunal must terminate the review and deal with the matter in the same way it would had the matter been referred to it directly (from a Council, the Attorney General or the Standards Board).¹²⁸

After hearings

2.105 If the Disciplinary Tribunal is satisfied, after completing its hearing, that the legal practitioner is not guilty of professional misconduct but rather is guilty of the lesser offence of unsatisfactory professional conduct it has the same powers as the Standards Board in relation to a finding of unsatisfactory professional conduct.¹²⁹ Where the Tribunal is satisfied that the legal practitioner is guilty of professional misconduct it may make one or a number of orders. It may order that the practising certificate of the legal practitioner be cancelled, suspended or not issued for a period of time, or that the name of the legal practitioner be struck of the Roll, or it may impose a fine of up to $25,000. Where the Tribunal is satisfied that the person who made the complaint has suffered loss as a consequence of the legal practitioner’s professional misconduct, then it may make the same orders as the Standards Board where such an order would have been appropriate.¹³⁰ The Tribunal also has the power to make ancillary orders (for example that the fees of counsel assisting the legal practitioner be paid) and to order that the legal practitioner pay the costs of the parties involved.¹³¹

Applications to the Tribunal in respect of clerks

2.106 Section 120 of the Act provides for the Tribunal, upon application by the Law Society, to make an order prohibiting any solicitor from employing or paying in connection with the solicitor’s practice a particular clerk. In order to apply for such an order, the Law Society must be of the opinion that the person is not a fit and proper person to be involved with a solicitor’s practice or that the conduct of the clerk, had he or she been a solicitor, would have constituted unsatisfactory professional conduct or professional misconduct.¹³² For the purposes of a hearing in respect of a clerk, the composition of the Legal Profession Disciplinary Tribunal shall be determined by the President.¹³³ The Disciplinary Tribunal has received three applications from the Law Society in relation to law clerks. The Tribunal has conducted hearings in respect of two of these matters. An order was made by the Tribunal pursuant to section 120 of the Act in both cases prohibiting the employment of the law clerk by any solicitor.¹³⁴

Referrals to the Tribunal

By the Law Society

2.107 Of the 5021 complaints investigated and assessed by the Law Society during the period 1 January 1988 to 1 December 1991,¹³⁵ 179 complaints were considered by the Law Society Council to be appropriate for referral to the Legal Profession Disciplinary Tribunal. These 179 complaints¹³⁶ were in respect of 56 solicitors and three clerks, and accordingly the Law Society Council, pursuant to sections 120 and 135 of the Act, made a total of 59 formal complaints to the Tribunal.¹³⁷ One complaint was later discontinued by consent.¹³⁸

By the Bar Association

2.108 Of the 263 separate complaints investigated and assessed by the Bar Council, 21 complaints (involving 13 barristers) were considered appropriate for referral to the Disciplinary Tribunal. Where a particular barrister was the subject of a number of Bar Council referral resolutions, the complaints were often combined for the purpose of filing at the Disciplinary Tribunal. The Bar Council subsequently filed eleven complaints (involving nine barristers) with the Tribunal pursuant to s134 of the Act and made four formal complaints (in relation to three barristers) to the Tribunal pursuant to s135 of the Act.¹³⁹ The Bar Council decided not to proceed with the filing of one complaint and two complaints (corresponding to one barrister) have yet to be referred to the Tribunal.¹⁴⁰

Determinations of the Tribunal

2.109 The Disciplinary Tribunal, as with the Standards Board, often conducts one hearing in respect of a number of complaints relating to the same legal practitioner. The Registrar of the Tribunal has advised the Commission that the Tribunal has conducted 42 hearings with respect to complaints about solicitors. One complaint was withdrawn prior to hearing with the consent of the parties. The Commission is advised by the Registrar of the Disciplinary Tribunal that as at the end of 1991, six complaints had not yet been proceeded to a hearing. The following is a summary of the Tribunal’s determinations:¹⁴¹

• costs orders were made 39 times;
• solicitors were struck off the Roll on 23 occasions;
• fines were ordered eight times;
• three orders were made that the solicitor’s practising certificate not be issued until the expiration of a specified period;
• two findings that the complaint was not proven;
• two findings that there was no case to answer;
• one order that the solicitor’s practising certificate be cancelled;
• one order that the solicitor pay compensation to the complainant;
• one ancillary order that the solicitor pay the outstanding costs of counsel (in respect of original court proceedings); and
• one order that a solicitor (who had his practising certificate suspended for a period) could practise as a legal clerk.¹⁴²

2.111 The Tribunal has conducted two hearings into complaints made about barristers. Two complaints were withdrawn by consent prior to hearing.¹⁴⁴ At 31 December 1991, eight hearings remained pending. In relation to the two matters heard by the Disciplinary Tribunal, the Tribunal made one finding of “complaint not proved” and in the other matter found that the barrister was not guilty of professional misconduct but rather was guilty of the lesser offence of unsatisfactory professional conduct. In relation to this latter finding, the Tribunal issued a reprimand and ordered that the barrister pay the costs of the Bar Association.¹⁴⁵

Appeals against the determinations of the Tribunal

2.112 The Commission understands that seven solicitors have appealed to the New South Wales Court of Appeal against the Disciplinary Tribunal’s determination of their complaint. The Commission is advised by the Law Society that at 1 December 1991, only three judgments had been delivered.¹⁴⁶ In two cases the solicitor’s appeal was dismissed, with costs awarded against the solicitor. In the other case the solicitor’s summons was dismissed, as it was defective in form. This solicitor also had to pay the Law Society’s costs.

1. Legal Practitioners Act 1898 (NSW), s76.

2. Legal Practitioners Act 1898, s75.

3. F Riley, The New South Wales Solicitors Manual at 1747.

4. The Commission understands that there is a 1990 decision of the Standards Board to this effect, but as the matter was heard in camera we cannot verify this officially.

5. Law Society of New South Wales, Annual Report 1991 (1991) at 10.

6. Legal Profession Act 1987 (NSW), s25. Unless otherwise indicated, all section references in this Chapter refer to provisions of the Legal Profession Act 1987.

7. The New South Wales Bar Association, Annual Report 1991 (1991) at 5.

8. Sections 25 and 26.

9. Section 29(4)(a).

10. Section 37(1).

11. Re B [1981] 2 NSWLR 372.

12. Law Society of New South Wales v Weaver [1977] 1 NSWLR 67.

13. Section 130.

14. 1991 figures are available in respect of both solicitors and barristers. However, not all of the complaints received in 1991 have been finally determined. The Commission has chosen to use 1990 figures throughout this Paper, for that reason.

15. New South Wales Law Reform Commission, Complaints, Discipline and Professional Standards - Part 1 (DP 2, 1979) at 99.

16. See paras 4.123-4.127.

17. Letter to the Commission from Mr John Holloway, Commissioner for Consumer Affairs, 8 January, 1992, at 2.

18. In 1991, 52 complaints were mediated by the Department of Consumer Affairs. Eight mediations resulted in full redress and six in partial redress for the complainant. Another three only required the provision of information. In most cases the complainant did not obtain redress. Seventeen complainants were referred to the Consumer Claims Tribunal or to the Legal Aid Commission. In the remaining cases, the complaint lapsed, was withdrawn, or was not justified, or conflicting evidence existed as to the facts or the result was not known.

19. Consumer Claims Tribunal Act 1987 (NSW) s32.

20. Consumer Claims Tribunal Act 1987, s3. The Act was amended following the decision of the Supreme Court in Holman v Deol [1979] 1 NSWLR 640 (at 651), in which it was held that lawyers were not “traders” within the meaning of the earlier definition.

21. Consumer Claims Tribunal Act 1987, s30.

22. The Commission does not have information in relation to the remaining 41 claims but presumes that these claims were decided in the favour of the legal practitioner.

23. Legal Profession (Amendment) Act 1987 (NSW) Sch 8, and see Weisbrot, at 207.

24. Section 123.

25. Section 123.

26. Section 130.

27. The Commission understands that some attempt is made by the Law Society to mediate some of these matters.

28. Part 10, Division 3.

29. Or any Committee to which it has delegated this power pursuant to s136 of the Act.

30. See s67(2)(g). See also Law Foundation of New South Wales, Annual Report 1991 (1991) at 60.

31. Submission of the Law Society of New South Wales, 31 January 1992, at 18. (Hereafter, “Law Society submission”.)

32. Section 50.

33. The Law Society advises that included in these figures are complaints involving conduct which occurred after the introduction of the Act.

34. Section 54(a).

35. The Law Society advises that the category of conduct /standards breach was previously known as unethical behaviour and includes a broad range of allegations including communicating with another solicitor’s client, acting for both parties, unethical letters of demand, misleading and many other “catch all” categories.

36. Section 130.

37. Letter to the Commission from the Law Society of New South Wales, 30 March 1992.

38. Section 55.

39. Law Society submission, at 10.

40. R MacDougal, “Unsatisfactory Professional Conduct” (March 1991) Law Society Journal at 42.

41. MacDougal at 44.

42. MacDougal at 44.

43. Riley, at para 1751.1.

44. Riley, at paras 1751.1-1751.2.

45. The Law Society advises the Commission that these 131 resolutions are based upon 131 complaints and are directly related to each complaints matter. Letter to the Commission from the Law Society of New South Wales, 16 March 1992.

46. Section 131.

47. Section 134(1)(a).

48. The power contained in s134(1)(b)(ii) was delegated subject to a proviso that the solicitor is to be advised that if the solicitor does not consent to a reprimand by the Committee, he or she may have the matter resolved by the Council.

49. Section 134(1), (1A) and (2).

50. Section 134(1)(c).

51. These admonitions relate to complaints where the conduct complained of occurred prior to the introduction of the Act.

52. Section 135.

53. Section 130(2)-(3).

54. Submission of the New South Wales Bar Association, 20 February 1992. (Hereafter, “Bar Association submission”.)

55. Bar Association submission, at 4.

56. See (Summer 1991) Bar News 16-17.

57. Bar Association submission, at 4.

58. Pursuant to s51 of the Act. The complaints and investigations mentioned here relate only to complaints in which the alleged conduct took place after the commencement of the Act. In 1990, the Bar Council also received four written complaints in respect of five barristers in which the conduct in question occurred prior to 1988. See The New South Wales Bar Association, Statistical Analysis - Complaints to the New South Wales Bar Association (28 January 1992) at 2. (Hereafter, “Bar Association statistics”.)

59. Bar Association statistics, at 1.

60. Letter to the Commission from the New South Wales Bar Association, 8 April 1992.

61. The Bar Association advises that the category “members of the public” includes litigants for whom barristers appeared, litigants against whom barristers appeared, witnesses called in litigation, persons complaining on behalf of other persons and persons complaining who had no direct interest in the litigation the subject of the complaint. Bar Association letter, 8 April 1992.

62. Pursuant to s136(1).

63. Under ss 130(5), 131, 132 and 133(1).

64. Bar Association submission, at 4.

65. Bar Association submission, at 5.

66. Bar Association submission, at 5.

67. Bar Association submission, at 5 and 6.

68. Bar Association submission, at 6.

69. Bar Association submission, at 6.

70. Bar Association submission, at 7.

71. Bar Association submission, at 7.

72. See generally s134.

73. Section 134(1A).

74. Section 134(1)(c).

75. See (Summer 1991) Bar News 16-17.

76. Bar Association statistics, at 2-3.

77. Section 134(3).

78. Bar Association submission, at 7.

79. Section 137.

80. Section 134(4).

81. The Law Society describes the average turn around time to be “the turn around time on average from the date of the receipt of the complaint to the date of the Complaints Committee or Council resolution or withdrawal or settlement of the complaint”. Law Society submission, at 23.

82. Law Society submission, at 23.

83. Bar Association statistics, at 9.

84. Schedule 4, cl 2.

85. Section 126(2)(c).

86. Legal Profession (Amendment) Act 1989 (NSW), Sch 4, cl 18.

87. Section 138.

88. Section 139(3).

89. Figures supplied to the Commission by the Registrar of the Legal Profession Conduct Review Panel in a letter of 27 February 1992, at 5. Number of applications given do not include those dismissed for being out of time or those over which the Panel has no jurisdiction.

90. Section 140(1).

91. Section 140(2).

92. Section 140(4).

93. Section 141(2).

94. Section 141(1).

95. Section 141(3).

96. Pursuant to s140(2).

97. This complaint related to conduct which took place prior to the commencement of the 1987 Act in 1988. The Panel’s jurisdiction was later clarified and found not to extend to pre-Act conduct. Therefore the Panel had no jurisdiction to review the complaint.

98. Section 126(2)(a)-(b).

99. Section 126(2)(c).

100. Section 142.

101. This figure includes complaints where the conduct complained occurred prior to 1 January 1988.

102. Law Society submission, at 11.

103. Law Society submission, at 11.

104. Law Society submission, at 13.

105. This figure represents the number of complaints received by the Bar Council where the conduct complained of occurred after 1 January 1988. During the same time period the Bar Council received 45 complaints in relation to alleged conduct that occurred prior to the introduction of the Legal Profession Act 1987 (NSW).

106. Bar Association statistics, at 2.

107. Sections 143 and 145.

108. Sections 146 and 147.

109. Section 143.

110. Sections 149(1) and (2).

111. Section 149(3)-(4).

112. Section 149(6).

113. Letter to the Commission from the Registrar of the Legal Profession Standards Board, 27 February 1992, at 4.

114. The Commission is advised by the Bar Association that in one case where the Board found that the complaint was not proven, the Board recommended that the barrister be counselled by the Bar Council. The Bar Association advises that the Bar Council subsequently adopted the Board’s recommendation and the barrister was counselled by the then President. Bar Association statistics, at 6.

115. Registrar’s letter, at 4.

116. Section 150.

117. Section 128.

118. Sections 151 and 156.

119. Section 153.

120. Registrar’s letter, at 3.

121. Section 157(2).

122. Section 159.

123. Section 158.

124. Section 158(2)-(3).

125. Section 158(5).

126. Section 160.

127. Section 154.

128. Section 155.

129. Section 163(3).

130. Section 163.

131. Section 163(6).

132. Section 120(2).

133. Section 120(12).

134. Registrar’s letter, at 2 and 3.

135. Law Society submission, at 11.

136. Law Society submission, at 13.

137. Registrar’s letter, at 1-2.

138. Registrar’s letter, at 2.

139. One barrister was the subject of a number of complaints, some of which were referred to the Disciplinary Tribunal pursuant to s134 and the others referred pursuant to s135.

140. Bar Association statistics, at 3.

141. Registrar’s letter, at 2-3.

142. Section 121 (2).

143. Under s163(2)(b).

144. Bar Association statistics, at 5.

145. Registrar’s letter, at 3.

146. Law Society submission, at 22.