3.1 The Legal Services Commissioner (the “LSC”), Law Society Council and Bar Council must refer a complaint to the Legal Services Division of the Administrative Decisions Tribunal (the “Tribunal”) if satisfied that there is a reasonable likelihood that the practitioner will be found guilty of professional misconduct or unsatisfactory professional conduct.1 A complaint may be referred to the Tribunal if the Council or LSC is satisfied that there is a reasonable likelihood that the practitioner will be found guilty of unsatisfactory professional conduct, but not professional misconduct.2 This Chapter considers the definitions of unsatisfactory professional conduct and professional misconduct, and the “reasonable likelihood” threshold.
CURRENT DEFINITIONS
Unsatisfactory professional conduct
3.2 Section 127 of the Legal Profession Act 1987 (NSW) (the “LPA”) provides that:
unsatisfactory professional conduct includes 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 practitioner or interstate practitioner.
Professional misconduct
3.3 Section 127(1) states that professional misconduct includes:3
- Unsatisfactory professional conduct that involves a substantial or consistent failure to reach reasonable standards of competence and diligence.
- Conduct not in connection with legal practice which would justify a finding that a practitioner is not of good fame and character, or is not a fit and proper person to remain on the roll of legal practitioners.
3.4 The following also constitute professional misconduct:4
- Practising as a solicitor or barrister without holding a current practising certificate (wilfully and without a reasonable excuse).5
- Having an associate whom the practitioner knows has been disqualified from practice, or knows has been convicted of an indictable offence and does not hold a current practising certificate (in certain circumstances).6
- Failing to co-operate with a trust account inspection or investigation or hindering, delaying or obstructing a trust account inspection or investigation.7
- Wilful failure to hold money received on behalf of others in a trust account and wilful failure to deposit trust account money with the Law Society.8
- Wilful failure to keep accounting records or to produce accounting records or other information in connection with an audit.9
- Non-compliance with a notice requiring information, documents or other cooperation with an investigation or a review of a Council decision (without a reasonable excuse).10
- Deliberately charging grossly excessive costs, deliberate misrepresentation as to costs11 and non-compliance with a notice requiring the production of documents in relation to a costs assessment or a costs assessment review (without a reasonable excuse).12
3.5 Legislation enacted late in 2000 provides for the incorporation of legal practices in New South Wales.13 This legislation includes provisions dealing with professional misconduct which relate specifically to incorporated legal practices.14 These provisions are expected to commence operation in mid 2001, following the drafting of regulations, which is currently under way.15
Conduct which may amount to misconduct
3.6 Certain other conduct may amount to misconduct. For example, deliberately misleading or obstructing an investigation is capable of being (and usually will constitute) professional misconduct.16 Non-disclosure of estimated costs, and breach of Bar Council or Law Society Council Rules may amount to either professional misconduct or unsatisfactory professional conduct.17
ARE THE CURRENT DEFINITIONS SATISFACTORY?
3.7 In Issues Paper 18 (“IP 18”), the Commission asked whether the current definitions are satisfactory. (Issue 4)
Negligence
Negligence and misconduct in New South Wales
3.8 The definition of unsatisfactory professional conduct under Part 10 refers to conduct below the standard of competence and diligence that the public is entitled to expect of a reasonably competent practitioner. Professional misconduct includes substantial or consistent failure to reach reasonable standards of competence and diligence.18
3.9 The relationship between professional negligence and misconduct has been considered by the Tribunal. In Pitsikas, the Tribunal found that unsatisfactory professional conduct would not necessarily cover mere negligence by a practitioner.19 The Tribunal commented that negligence may or may not constitute unsatisfactory professional conduct. Subsequently, in Re a Barrister, the Tribunal found, by a majority, that in most cases professional negligence by a practitioner would also constitute unsatisfactory professional conduct.20 The majority expressly disagreed with Pitsikas.
3.10 There is a considerable body of case law which deals with the particular circumstances in which negligence will amount to misconduct. For example, negligent supervision of the firm’s dealing with money entrusted by clients has been held to constitute misconduct.21 Serious delay in completing work, concealing this from the client and accepting money for costs and fees connected with the work constitutes both negligence and misconduct.22 Failing to keep a client informed of the state of their affairs amounts to both negligence and misconduct.23
3.11 Despite this, the OLSC’s web site states that the LSC will usually decline to deal with a complaint involving professional negligence, and advises that if negligence results in the client suffering a significant measurable loss, the client should consider suing the practitioner for negligence.24
Submissions
3.12 Several submissions argued that many consumers are reluctant to commence legal proceedings against a practitioner for negligence, because they think that it will be difficult and expensive to win a case against a practitioner, and because they are averse to the idea of hiring another practitioner and to the legal profession in general.25 It was also argued that many consumers simply will not have the resources to fund litigation in situations where the defence will often be funded by a professional liability insurer.26 A number of submissions argued that Part 10 should be amended to clarify that negligence is capable of constituting unsatisfactory professional conduct.27 One submission argued that negligence should always constitute unsatisfactory professional conduct. 28
3.13 Other submissions opposed the inclusion of negligence in the definition of unsatisfactory professional conduct.29
Other jurisdictions
3.14 The definition of unsatisfactory professional conduct in the Australian Capital Territory, South Australia, Tasmania and Victoria is similar to the New South Wales definition.30 In South Australia, Tasmania and Victoria, the definition of professional misconduct includes substantial or recurrent failure to meet the standard of conduct observed by competent practitioners of good repute.31
3.15 In the Northern Territory, where there is only one category of misconduct, it includes neglect constituting a gross breach of duty to a client.32 In Queensland, the definition of unprofessional conduct or practice includes serious neglect and failure to maintain reasonable standards of competence or diligence.33 The complaints and discipline scheme in Queensland also covers malpractice, although this term is not defined.34 Finally, in Western Australia, the complaints and discipline system also includes neglect.35 This term is not defined.
The Commission’s view
3.16 It is clear under the common law, including the recent decision of the Tribunal in Re a Barrister,36 that negligence is capable of constituting misconduct. The Commission does not consider that it is necessary to amend Part 10 to clarify this. The common law also provides considerable guidance on the circumstances in which negligence will constitute misconduct. In a serious case, in which the practitioner’s negligence amounts to a wilful breach of professional standards in disregard of the practitioner’s duty to the client, it will almost certainly amount to professional misconduct. These principles are not in any real sense controversial or subject to doubt. The Commission considers that the LSC needs to re-evaluate his policy of declining to deal with complaints about negligence to reflect the law that negligent conduct which happens to satisfy the requirements of the tort of negligence may also amount to unsatisfactory professional conduct or professional misconduct.
3.17 Consumer redress is an express object of Part 10.37 This provision implements the Commission’s previous recommendation that Part 10 should be more consumer oriented.38 The law should facilitate redress for a client who has suffered loss due to professional negligence by a practitioner which does not amount to misconduct. This Report includes recommendations addressing this issue. Chapter 5 of this Report recommends that the powers of the LSC should be expanded to enable the LSC to compel a practitioner and client involved in a consumer dispute to attend mediation.39
Disclosure of estimated costs
Disclosure of costs in New South Wales
3.18 Part 11 of the LPA deals with disclosure by practitioners to clients of matters relating to costs. It provides that non-disclosure of estimated costs may amount to misconduct.40
3.19 Under Part 11, a client has the right to be given information about how a practitioner will charge for legal services, and an estimate of the likely cost.41 If the client is not given information about how costs will be charged, the client need not pay the bill until it has been assessed by a costs assessor. Costs assessment in this situation is at the practitioner’s expense.42
3.20 A client who disputes a bill of costs for legal services can refer the dispute to the LSC or a Council for mediation if the amount in dispute is less than $2,500.43
3.21 A client or practitioner can also apply to the Supreme Court for the assessment of the whole or part of a bill of costs.44 Applications are referred to costs assessors.45 The costs assessor may require the client, the practitioner or any other person to produce any relevant documents and information about the instructions given by the client to the practitioner, the work performed, or the basis on which the costs in dispute were ascertained.46 The costs assessor must give both the client and the practitioner a reasonable opportunity to make written submissions, and give due consideration to them, before determining an application for costs assessment.47
3.22 The costs assessor must consider whether or not it was reasonable for the practitioner to perform the work, whether or not the work was carried out in a reasonable manner and whether the disputed costs were fair and reasonable.48 If satisfied that the disputed costs are unfair or unreasonable, the costs assessor must substitute a fair and reasonable amount. The costs assessor can confirm the disputed costs if satisfied that they are reasonable.49
3.23 The client can apply for costs assessment even if he or she has wholly or partly paid the disputed costs.50 If the amount in dispute is less than $2,500, the Supreme Court can refer the dispute back to the LSC.51
Disclosure of costs and misconduct
3.24 Part 10 provides that deliberately charging excessive costs, deliberate misrepresentations about costs, and non-compliance with a notice requiring the production of documents in connection with a costs assessment constitute professional misconduct.52 Failure to provide a costs estimate may amount to unsatisfactory professional conduct.53
Submissions
3.25 A significant proportion of complaints received by the LSC relate to non-disclosure of costs. However, there is no case law or statutory guidance on when non-disclosure of costs amounts to misconduct. The OLSC submitted that the LPA should be amended to clarify that non-disclosure of costs without a reasonable excuse amounts to misconduct.54 However, other submissions opposed this. The Bar Association argued that the consequences of non-disclosure discussed in paragraphs 3.19 to 3.23 above are adequate.55
Other jurisdictions
3.26 Disclosure of estimated costs is required in most Australian jurisdictions.56 The relationship between non-disclosure and misconduct is not expressly dealt with in the legislation regulating the disciplinary system for lawyers in other jurisdictions. However, in Tasmania and Victoria, contravention of the relevant Act, Regulations or practice rules constitutes misconduct.57 In Queensland and Victoria, as in New South Wales, non-disclosure hinders the lawyer’s ability to recover costs and access to costs assessment.58
The Commission’s view
3.27 Part 11 expressly provides that non-disclosure of estimated costs may amount to unsatisfactory professional conduct. Where a client complains to the LSC about non-disclosure of estimated costs, the LSC must investigate the complaint and determine whether or not he is satisfied that there is a reasonable likelihood that the practitioner will be found guilty of unsatisfactory professional conduct. If satisfied of this, the LSC can dismiss the complaint, reprimand the practitioner (if he or she consents) or refer the complaint to the Tribunal.59
3.28 The Commission’s view is that amending the LPA to clarify that non-disclosure of costs without a reasonable excuse amounts to misconduct would not increase the power of the LSC over practitioners who fail to disclose estimated costs. If cost details are not provided in advance the client has the right to dispute such costs and/or seek a costs assessment. The same investigative process that is currently required would still have to be undertaken. One advantage of amending this section may be to assist in the transparency of rights and responsibilities for practitioners and clients.
Advertising
Advertising legal services in New South Wales
3.29 Legal practitioners may advertise their services.60 Advertisements must not be false, misleading or deceptive, or breach the Trade Practices Act 1974 (Cth), the Fair Trading Act 1987 (NSW) or any other similar legislation.61
3.30 The LPA does not state that advertising which is false, misleading or deceptive, or breaches consumer protection legislation, is or may amount to misconduct. It was submitted that the LPA should be amended to provide that this may amount to unsatisfactory professional conduct or professional misconduct and can, therefore, be dealt with under Part 10.62
Other jurisdictions
3.31 Advertising of legal services is permitted in all Australian jurisdictions.63 There is no provision in any other Australian jurisdiction stating that advertising which is false, misleading or deceptive or breaches consumer protection legislation is, or may amount to, misconduct.
Recommendation
3.32 Where a practitioner advertises legal services in a manner which is false, misleading or deceptive, this raises a question about the practitioner’s honesty.64 Advertising legal services in a manner which breaches the provisions of the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987 (NSW) dealing with unconscionable conduct65 or false representations66 also raises a question about the practitioner’s probity. The Commission’s view is that honesty directly relates to the question of misconduct. Accordingly, the Commission recommends that the LPA should be amended to provide that advertising which breaches these fair trading laws may amount to either unsatisfactory professional conduct or professional misconduct.
Recommendation 1
Section 38J of the Legal Profession Act 1987 (NSW) should be amended to provide that advertising which is false, misleading or deceptive or breaches the Trade Practices Act 1974 (Cth) or the Fair Trading Act 1987 (NSW) or any similar legislation may amount to either unsatisfactory professional conduct or professional misconduct.
Protecting whistleblowers
Protecting whistleblowers in New South Wales
3.33 Whistleblowing is a colloquial term describing the actions of a person who publicly discloses harmful activities occurring in an organisation, such as criminal offences or corruption.67 The Protected Disclosures Act 1994 (NSW) provides protections to public servants who disclose information about corruption, maladministration or serious and substantial waste in the public sector. A person who makes a protected disclosure is not liable to disciplinary action because of the disclosure.68 It is an offence to take disciplinary proceedings in reprisal for making a protected disclosure.69 The Protected Disclosures Act 1994 (NSW) also applies outside the public service in relation to government work performed under contract by private practitioners.70
Protecting whistleblowers in the legal profession
3.34 The Professional Standards Council has recently considered the extension of whistleblowing principles to the regulation of the private sector, including the legal profession.71 The Council discussed the integration of whistleblowing principles and protections within existing complaints and discipline systems in the professions. The Council argued that the inclusion of specific protections for whistleblowers may actively encourage members of a profession to come forward with their concerns, and demonstrate the profession’s commitment to evaluating complaints fairly.72 The Council has not yet made any formal recommendations for the incorporation of whistleblower protections into the regulation of the professions.
Submissions
3.35 One submission favoured the incorporation of protections for whistleblowers into the complaints system.73 Neither the Law Society nor the Bar Association favoured the extension of whistleblowing principles to the legal profession.74 The Bar Association argued that attempts by a practitioner to conceal misconduct or victimise an employee who discloses misconduct would, of itself, constitute misconduct. Moreover, a practitioner who suspects on reasonable grounds that a solicitor has dealt with trust money in a manner that may be dishonest or irregular is required to notify the President of the Law Society as soon as practicable.75
The Commission’s view
3.36 While attempts by a practitioner to conceal misconduct or victimise an employee who discloses misconduct would constitute misconduct under Part 10, the Commission notes the Council’s argument that the inclusion of specific protections for whistleblowers may actively encourage practitioners to come forward with their concerns about misconduct by other practitioners. The Council’s work so far is at a preliminary stage, designed to encourage debate in the professions and the community. The Commission does not express a final view on this issue at this stage. The Commission does, however, emphasise the inherent conflict between protecting a whistleblower by keeping the identity of the whistleblower secret and providing procedural fairness to the practitioner against whom the whistleblower has made an allegation.
Are two categories of misconduct required?
Categories of misconduct in New South Wales
3.37 Prior to the enactment of the LPA the only type of misconduct was professional misconduct at common law.76 The introduction of unsatisfactory professional conduct in 1987 reflected Parliament’s intention that an additional but lower level of professional misconduct should be the subject of sanction.77
Submissions
3.38 One submission pointed out that the two categories of misconduct are dealt with in the same way under Part 10.78 It was argued that complaints relating to unsatisfactory professional conduct should be dealt with in a different, less serious procedure, to reflect the fact that unsatisfactory professional conduct is less serious than professional misconduct. For example, the LSC or the Councils, or a single member of the Tribunal could deal with unsatisfactory professional conduct.79 On the other hand, the Law Society submitted that the two categories of misconduct should be replaced with a single classification of “unprofessional conduct”, incorporating elements of both categories.80
Other jurisdictions
3.39 Most other Australian jurisdictions have two categories of misconduct.81
The Commission’s view
3.40 The Commission accepts that it is appropriate and procedurally convenient to recognise two separate categories of misconduct in Part 10. In Chapter 5, the Commission recommends that where the LSC or Council is satisfied that there is a reasonable likelihood that a practitioner will be found guilty of unsatisfactory professional conduct but not professional misconduct, they should be able to reprimand the practitioner without the practitioner’s consent.82
Contravening the Act, Regulation or practice rules
3.41 The LPA does not expressly state that a practitioner who contravenes a provision of the Act or a clause of the Legal Profession Regulation 1994 (NSW) is, or may be, guilty of misconduct. Contravention of the Solicitors Rules’ or Barristers’ Rules is capable of constituting either unsatisfactory professional conduct or professional misconduct.83
Submissions
3.42 The OLSC argued that breach of the LPA or the Legal Profession Regulation 1994 (NSW) should also constitute unsatisfactory professional conduct.84 The OLSC pointed out that medical practitioners who contravene the Medical Practice Act 1992 (NSW) or the Medical Practice Regulation 1998 (NSW) are guilty of unsatisfactory professional conduct.85
Other jurisdictions
3.43 In the Northern Territory, wilful or reckless contravention of the Legal Practitioners Act 1974 (NT), regulations or rules constitutes professional misconduct.86 In Victoria, contravention of the Legal Practice Act 1996 (Vic), regulations or rules is unsatisfactory conduct and wilful or reckless contravention is misconduct.87 In Tasmania the definition of professional misconduct includes contravention of the Legal Profession Act 1993 (Tas), regulations or rules. No distinction is drawn between wilful, reckless, negligent or inadvertent contravention.
Recommendations
3.44 Although the Medical Practice Act 1992 (NSW) is broadly analogous to the LPA, there are some significant differences in both the nature of the professional groups regulated and the legislative framework that governs them. The Commission does not consider that the LPA should be amended to provide that a contravention of the Act or the Legal Profession Regulation 1994 (NSW) should constitute unsatisfactory professional conduct simply on the basis that a comparable provision exists in the Medical Practice Act 1992 (NSW).
3.45 The LPA is a lengthy and complex piece of legislation consisting of 15 parts and 421 sections. It covers a wide range of matters including admission to practice, practice as a lawyer and the issue, refusal, suspension and cancellation of practising certificates. It covers professional indemnity insurance. It deals with the functions and responsibilities of the Bar Association, the Law Society and the Legal Profession Advisory Council. It also covers trust accounting requirements. The Act deals with the appointment of receivers to solicitors’ property and the appointment of managers to solicitors’ practices. It covers solicitor corporations. It regulates disclosure of costs, costs agreements and costs assessment. The Act also regulates interstate practitioners under the national practising certificates scheme and local registration of foreign practitioners. When the Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) commences operation it will also cover incorporated legal practices. The Legal Profession Regulation 1994 (NSW) also covers many of these areas. The LPA has been amended by 38 pieces of legislation since it was enacted in 1987.
3.46 In light of the length, complexity and coverage of the LPA, the Commission considers that it would be unreasonable and unfair if every contravention of any requirement of the LPA automatically constituted misconduct. However the Commission’s view is that the definitions in Part 10 should be amended to make it clear that contravention of the LPA or the Legal Profession Regulation 1994 (NSW) is capable of being either unsatisfactory professional conduct or professional misconduct. It may then be possible to further identify conduct that amounts to misconduct.
3.47 In addition to the definitions of unsatisfactory professional conduct and professional misconduct in Part 10, other Parts of the LPA identify numerous conduct as misconduct, or state that it may amount to misconduct. This is confusing and unwieldy. The Commission recommends that Part 10 should include a section or schedule which draws together a list of all conduct identified throughout the LPA as professional misconduct or unsatisfactory professional conduct and all conduct which the LPA states may amount to misconduct.
REFERRING COMPLAINTS TO THE TRIBUNAL
Threshold for referral in New South Wales
3.48 A complaint about a practitioner must be referred to the Tribunal if the Council or LSC is satisfied that there is a reasonable likelihood that the practitioner will be found guilty of professional misconduct.88 If satisfied that there is a reasonable likelihood that the practitioner will be found guilty of unsatisfactory professional conduct, but not professional misconduct, the Council or LSC may refer the complaint to the Tribunal but may also dismiss the complaint or reprimand the practitioner.89
3.49 In IP 18, the Commission asked whether Part 10 of the LPA should prescribe a threshold for referring complaints to the Tribunal and, if so, whether the current “reasonable likelihood” threshold is appropriate. (Issue 26)
Submissions
3.50 A number of submissions argued that the threshold for referring complaints to the Tribunal should be lowered.90 The OLSC submitted that the current test requires the LSC to prejudge the Tribunal in its deliberations. It was argued that this places an “unreasonable strain” on the LSC, especially in relation to complaints involving novel issues not previously considered by the Tribunal, and where the evidence of the complainant and the practitioner conflict. In Murray v Legal Services Commissioner, Justice Sheller commented that under the current threshold the Council or LSC is required to attempt to predict the outcome of a hearing in the Tribunal.91 It was submitted by the OLSC and others that an appropriate threshold for referring complaints to the Tribunal would be whether the evidence establishes a case to answer.92
3.51 The Law Society submitted that an appropriate test would be whether a real question of conduct has arisen which the Tribunal should determine. Another submission argued that an appropriate threshold is whether the evidence is capable of satisfying the Tribunal beyond reasonable doubt that the practitioner is guilty of misconduct.93
3.52 On the other hand, some submissions argued that the current threshold is appropriate for disciplinary proceedings.94 The prediction required by the current test is not unique to disciplinary proceedings involving practitioners and is widely used in the criminal jurisdiction both by prosecutorial authorities and committing magistrates.95
Other jurisdictions
3.53 There is no statutory threshold for referral in most Australian jurisdictions.96 In Tasmania, the Law Society Council is permitted to apply to the Disciplinary Tribunal for a hearing and determination into any matter which the Council considers may amount to misconduct or constitutes a course of conduct which ought to be determined by the Tribunal.97 In Victoria, the threshold is identical to the threshold under Part 10.98 The Victorian Legal Ombudsman has reported having no difficulty in applying it.99
The Commission’s view
3.54 The statutory threshold for referring complaints to the Tribunal acts as a filter to ensure that insubstantial complaints do not proceed to the Tribunal for hearing. This saves the Tribunal time and resources. The threshold does not require the LSC or Council to predict whether the practitioner will be found guilty of misconduct, but rather, whether there is a reasonable likelihood of such a finding. This does not require a conclusion that a finding adverse to the practitioner will more probably than not be made. In a case of conflicting evidence, where there is no substantial reason for disbelieving the complainant’s case, (aside from the denial of the practitioner), the statutory test will usually be satisfied. The Tribunal is responsible for determining questions of fact where the evidence of the complainant and the practitioner conflict. The threshold is lower than the standard of proof for civil cases. The Commission’s view is that the current threshold is appropriate.
Footnotes
1. Legal Profession Act 1987 (NSW) s 155(2).
2. Legal Profession Act 1987 (NSW) s 155(3).
3. Legal Profession Act 1987 (NSW) s 127(1).
4. See Legal Profession Act 1987 (NSW) s 127(3).
5. Legal Profession Act 1987 (NSW) s 25(4).
6. Legal Profession Act 1987 (NSW) s 48K.
7. Legal Profession Act 1987 (NSW) s 55. See para 4.46-4.47.
8. Legal Profession Act 1987 (NSW) s 61(7) and s 64(5).
9. Legal Profession Act 1987 (NSW) s 62(4) and s 63(5).
10. Legal Profession Act 1987 (NSW) s 152(4) and s 159(4).
11. Legal Profession Act 1987 (NSW) s 208Q(2).
12. Legal Profession Act 1987 (NSW) s 207(6) and s 208KD(5).
13. Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW).
14. Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) s 3 and Sch 1, inserting s 47E(3) and s 47E(4) into the Legal Profession Act 1987 (NSW). See para 4.30-4.37.
15. Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) s 3 and Sch 1, inserting s 47T into the Legal Profession Act 1987 (NSW).
16. Legal Profession Act 1987 (NSW) s 152(5). See also s 127(3).
17. Legal Profession Act 1987 (NSW) s 182(4), s 183 and s 57D. See also Parts 3B, 3C and s 55, which regulate the entitlement of interstate lawyers to practice in New South Wales under the national practising certificates scheme, and local registration of foreign lawyers; s 172X, dealing with misconduct by solicitors corporations; and s 208KD.
18. See para 3.2-3.4.
19. Pitsikas (1995) 1 LPDR 5.
20. Re a Barrister (1998) 3 LPDR 1.
21. Re Mayes [1974] 1 NSWLR 19.
22. Re R [1927] SASR 58.
23. Re a Solicitor (1992) 110 FLR 9 (ACT, Full Court).
24. New South Wales, Office of the Legal Services Commissioner “Quality of service” (as at 21 February 2001) «www.lawlink.nsw. gov.au/olsc1.nsf/pages/complaint7».
25. See Confidential Submission 1; G Taylor, Submission at 1-2; OLSC, Submission at 19.
26. See IP 18 para 4.19.
27. P Breen, Preliminary Submission para 2.4; OLSC, Submission at 10 and 19; NSW Legal Reform Group, Submission at 4.
28. See G Taylor, Submission at 1-2.
29. Law Society of NSW, Submission at 8; NSW Bar Association, Submission at 26-28; J Gormly, Submission at 4; G Molloy, Oral Submission.
30. Legal Practitioners Act 1970 (ACT) s 37; Legal Practitioners Act 1981 (SA) s 5(1); Legal Profession Act 1993 (Tas) s 56.
31. Legal Practitioners Act 1981 (SA) s 5(1) (in South Australia the most serious category of misconduct is known as unprofessional conduct); Legal Profession Act 1993 (Tas) s 56; Legal Practice Act 1996 (Vic) s 137 (in Victoria the most serious category of misconduct is known simply as misconduct).
32. Legal Practitioners Act (NT) s 45(2)(b).
33. Queensland Law Society Act 1952 (Qld) s 3B.
34. Queensland Law Society Act 1952 (Qld) s 5E(6).
35. Legal Practitioners Act 1893 (WA) s 28A(1).
36. Re a Barrister (1998) 3 LPDR 1.
37. Legal Profession Act 1987 (NSW) s 123(a).
38. NSWLRC Report 70 at para 3.24-3.31, 4.2, 4.8-4.13.
39. See para 5.25-5.41 and Recommendation 18.
40. Legal Profession Act 1987 (NSW) s 182(4).
41. Legal Profession Act 1987 (NSW) s 174(1)(a), s 175 and s 177.
42. Legal Profession Act 1987 (NSW) s 174(1)(b) and s 182.
43. Legal Profession Act 1987 (NSW) s 198B.
44. Legal Profession Act 1987 (NSW) s 199, s 200 and s 201.
45. Legal Profession Act 1987 (NSW) s 206.
46. Legal Profession Act 1987 (NSW) s 207.
47. Legal Profession Act 1987 (NSW) s 208.
48. Legal Profession Act 1987 (NSW) s 208A(1) and s 208B.
49. Legal Profession Act 1987 (NSW) s 208A(2).
50. Legal Profession Act 1987 (NSW) s 199(2). In this cases a time limit of 12 months from the date that the bill was given to the client is imposed: Legal Profession Regulation 1994 (NSW) cl 25.
51. Legal Profession Act 1987 (NSW) s 198B(2).
52. See para 3.3.
53. See para 3.4.
54. OLSC, Preliminary Submission at 18.
55. NSW Bar Association, Submission at 27; C Wall, Submission at 6.
56. Queensland Law Society Act 1952 (Qld) s 48; Legal Practice Act 1996 (Vic) s 86; Law Society of the Australian Capital Territory Professional Conduct Rules r 3.1, 3.4 and 40.1; Law Society of South Australia Professional Conduct Rules r 9.14; Tasmania, Rules of Practice 1994 r 13 and 14; Western Australia, Professional Conduct Rules r 10.3.
57. Legal Profession Act 1993 (Tas) s 56; Legal Practice Act 1996 (Vic) s 137.
58. Queensland Law Society Act 1952 (Qld) s 48J and Pt 2A Div 6A; Legal Practice Act 1996 (Vic) s 91.
59. Legal Profession Act 1987 (NSW) s 155(2) and (3).
60. Legal Profession Act 1987 (NSW) s 38J(1).
61. Legal Profession Act 1987 (NSW) s 38J(2) See also s 48ZY, which regulates advertising by locally registered foreign lawyers, and s 47I, inserted by the Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) s 3 and Sch 1, which relates to advertising by incorporated legal practices. Section 47I has not yet commenced: see para 3.5.
62. OLSC, Submission at 11-12. See also OLSC, Submission to National Competition Policy Review at 9-10. The Law Society also supported increasing the level of restriction on advertising, without indicating whether breach of increased restriction should constitute misconduct: Law Society of NSW, Submission at 8. See also OLSC, Advertising and the Disciplinary Process under the Legal Profession Act 1987 (Policy Paper, 1998).
63. Law Society of the Australian Capital Territory Professional Conduct Rules r 39; ACT Barristers Rules r 116 and 117; Legal Practitioners Act 1970 (ACT) s 191ZI; Law Society of the NT Professional Conduct Rules r 3; NT Bar Rules r 43; Legal Practitioners Act (NT) s 135U; Queensland Law Society Rules 1987 r 80; Queensland Barristers Rules r 115, 116; Law Society of South Australia Professional Conduct Rules r 3; Tasmania, Rules of Practice 1994 r 7; Legal Profession Act 1993 (Tas) s 17(3); Victoria, Solicitors’ (Professional Conduct and Practice) Rules r 2; Western Australia, Professional Conduct Rules r 4, Sch 5; Western Australia Bar Association Conduct Rules r 29.
64. Misleading or deceptive conduct in the course of trade or commerce is prohibited by the Trade Practices Act 1974 (Cth) s 52 and the Fair Trading Act 1987 (NSW) s 42.
65. Trade Practices Act 1974 (Cth) Pt 4A; Fair Trading Act 1987 (NSW) s 43.
66. Trade Practices Act 1974 (Cth) s 53; Fair Trading Act 1987 (NSW) s 44.
67. NSW Professional Standards Council, Whistleblowing in the Professions (Report, 2001) at 6-7.
68. Protected Disclosures Act 1994 (NSW) s 21.
69. Protected Disclosures Act 1994 (NSW) s 20. The Public Sector Management Act 1988 (NSW) s 66 also states that this is a breach of discipline.
70. NSW Professional Standards Council, Whistleblowing in the Professions (Consultative Paper, 2000) at 7.
71. Professional Standards Council (Consultation Paper, 2000); Professional Standards Council, (Report, 2001).
72. NSW Professional Standards Council, Whistleblowing in the Professions (Report, 2001) at 23.
73. See R S Cuddy, Submission at 1.
74. Law Society of NSW, Submission at 9; NSW Bar Association, Submission at 27.
75. Legal Profession Regulation 1994 (NSW) cl 69.
76. Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 207.
77. Pitsakis (1995) 1 LPDR 5 at 9.
78. See para 3.48 and 6.8-6.103.
79. J Gormly, Submission at 2-3.
80. Law Society of NSW, Submission at 8.
81. Legal Practitioners Act 1970 (ACT) s 37; Queensland Law Society Act 1952 (Qld) s 3B, s 5E(6) and s 5F; Legal Practitioners Act 1981 (SA) s 5(1); Legal Profession Act 1993 (Tas) s 56; Legal Practice Act 1996 (Vic) s 137.
82. See para 5.16-5.22 and Recommendation 17.
83. Legal Profession Act 1987 (NSW) s 57D(4).
84. OLSC, Submission at 17-18.
85. Medical Practice Act 1992 (NSW) s 36(1)(b).
86. Legal Practitioners Act (NT) s 45.
87. Legal Practice Act 1996 (Vic) s 137.
88. Legal Profession Act 1987 (NSW) s 155(1) and (2).
89. Legal Profession Act 1987 (NSW) s 155(1) and (3).
90. OLSC, Submission at 9, 30; C P Wall, Submission at 7; F Combe, Submission at 10; P Breen, Submission at 6; Law Society of NSW, Submission at 14.
91. Murray v Legal Services Commissioner (1999) 46 NSWLR 224 at 247.
92. P Breen, Submission at 6; F Combe, Submission at 10; OLSC, Submission at 30.
93. C P Wall, Submission at 7. This is the test used in committal proceedings for criminal cases: see Justices Act 1902 (NSW) s 41(2).
94. R S Cuddy, Submission at 6; NSW Bar Association, Submission at 44; Law Society of NSW, Submission at 18.
95. See for example the threshold applied by Magistrates in committal proceedings: Justices Act 1902 (NSW) s 41. See also NSW Bar Association, Submission at 45.
96. See Legal Practitioners Act 1970 (ACT) s 50; Legal Practitioners Act (NT) s 47(1)(d) and s 50; Queensland Law Society Act 1952 (Qld) s 5J(d); Legal Practitioners Act 1981 (SA) s 82; Legal Practitioners Act 1893 (WA) s 28C.
97. Legal Profession Act 1993 (Tas) s 60.
98. Legal Practice Act 1996 (Vic) s 151.
99. Victorian Legal Ombudsman, Submission at 44.
