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Lecture

1.2 Procedures--Complaints & Disciplinary Proceedings

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Disciplinary Procedures Investigative Body: Legal Services Commission  Governing body o Previously—QLS & BAQ: 2004 Act  Complaints about self-regulation, impartiality o Now—independent Legal Services Commission  Continued from 2004 Act: s591(1) LPA Nature of the Body Structure  Made up of staff & commissioner: s591(2)  Controlled by Legal Services Commissioner: s591(3) LPA (John Briton) o Appointed under s583 (There is to be a Legal Services Commissioner)  By Governor in Council through gazette notice: s584(1)  Criteria— (s584(2))  Familiar with legal practice  Possesses qualities of independence, fairness and integrity  Need not be an Australian lawyer: s584(3) o Holds office for term of < 5 yrs: s585(1)  Can be reappointed—must be < 10 yrs in total: s585(2) Responsibility = primarily to ―protect and promote the rights of legal consumers‖  disciplinary function = secondary—driven by primary function of protecting consumers  May investigate with or without a complaint being made  two main duties o proceed efficiently and effectively: s450 (The commissioner must, under this Act, deal with complaints as efficiently and expeditiously as is practicable.) o inform complainant of proceedings/action taken: s451(1)  Notice of receipt: s451(2)(a)  Copy of discipline application made: s451(2)(b)  Unless prohibited by committee under ss 650 & 656D  Written notice of hearing: s451(2)(c)  Written notice of decision: s451(2)(d) Disciplinary Functions Making Complaints  Eligible Complainants  Complaining about private practice → any person: s429(1) (specified examples—(a) client of the law practice or (b) regulatory authority) o ← need not be own lawyer, can be another (eg ex-wife’s lawyer)  Complaining about a government officer → only Australian lawyer, regulatory authority or CEO of government department: s429(2)  Conduct to which chapter applies o NOT conduct of articled clerks, secretaries, etc as LPA relates only to legal practitioners: s218 LPA (but may affect admission) o Conduct of practitioners (can be complained of: s428(1)(a))  Regardless of whether practitioner or complainant local or practicing / residing in jurisdiction: s422  Place conduct occurred  In Qld: s423(1) Andrew Trotter LWB433 Professional Responsibility o UNLESS commissioner or practitioner & complainant consent to dealing with in other jurisdiction: s423(3)  Part of course of conduct which partially happened in Qld—only with consent of authority or practitioner & complainant: s423(2)(a)  in Aus but not at all in Qld—only with consent of authority or practitioner & complainant: s423(2)(b)  out of Aus (partly or entirely)—only if local lawyer: s423(2)(c) o Including—  Conduct resulting in conviction for serious offence | tax offence | offence involving dishonesty: s424(1)(a)  Conduct as or in becoming insolvent: s424(1)(b)  Conduct resulting in disqualification from managing corporation: s424(1)(c) o Conduct of law practice employees: s425 (can be complained of: s428(1)(b))  Even if partly outside Qld: s425(1)  Including former employees (not employees at commencement)—conduct while they were employees: s425(2) o Conduct of persons suspected of contravening PIPA: s426 o Conduct of unlawful operators: s427 (can be complained of: s428(1)(c))  Layperson engaging in legal practice: s24  Prohibition on putting oneself out to be a lawyer: s25  Form—Must be in writing in approved form: s429(1) o Must— (s429(3))  Identify complainant  Identify person complaining against (if possible)  Describe alleged conduct  Cannot receive complaints about: o Decisions of courts/tribunal o Disputes over costs → Solicitor’s Complaints Tribunal o Negligence—unless it is obvious or admitted (must prove in court) Determining whether to institute action  Conduct more than 3 years ago → may— o Refer to mediation: s430(2)(a) o Dismiss unless fair & just or in the public interest: s430(2)(b)  Further requests— o Commissioner may write to plaintiff to request—  further information: s431(1)(a)  verification by statutory declaration: s431(1)(b)  waiver of legal professional privilege: s431(1)(c) o Time limit prescribed: s431(2) o Failure to comply → summary dismissal of complaint: s432(1)(a)  Summary dismissal possible where— o Fail to comply with requests for info etc: s432(1)(a)  → May make another complaint later: s432(3) o Not of conduct which can be complained of: s432(1)(b) o Groundless or vexatious: s432(1)(c) o Previously resolved: s432(1)(d) o Practitioner already removed from roll & not in public interest: s432(1)(e) o More than 3 years ago—unless fair & just or in the public interest: s430(2)(b)  Withdrawal by notice to commissioner: s433(1) o Oral or written—but if oral commissioner must make written record & send to complainant: s433(2) o commissioner can pursue anyway: s433(3) Andrew Trotter LWB433 Professional Responsibility  Stay—commissioner can delay dealing with where— o Complainant asked for delay & delay reasonable: s434(1)(a) o Complaint proceeding in another jurisdiction: s434(1)(b) o Matter will be dealt with another way: s434(1)(c) o Commissioner considers it in the public interest to delay: s434(1)(d)  Refer to mediation— o If more than 3 years ago: s430(2)(a) o solely consumer disputes: s441 o hybrid disputes: s442 Investigation  Investigating body o LSC must investigate themselves if—  Inconsistent with public interest for QLS or BAQ to investigate: s436(1)(a)  In public interest for commissioner to investigate: s436(1)(b) o Otherwise may refer to QLS or BAQ: s435(2)  QLS or BAQ must follow directions and instructions from LSC: s435(3)  QLS or BAQ must investigate and report back: s439(1)  QLS or BAQ must recommend to LSC whether or not to start disciplinary proceedings: s439(3)(b)  Notice to Respondent o Must give notice to respondent: s437(1)  State that complaint made | nature of complaint | identify complainant | action taken by investigating body  Notice not required if notice would prejudice—  the investigation: s437(3)(a)  police investigation or other law enforcement agency: s437(3)(b)  complainant or other person—placing at risk of intimidation or harassment: s437(3)(c)  court proceedings: s437(3)(d) o Respondent may give written submissions in response: s438(1)  Demands on Respondent o LSC may require respondent to—  Give explanation: s443(1)(a)(i)  Appear before LSC: s443(1)(a)(ii)  Produce a document: s443(1)(a)(iii) o May refuse if would  Contravene professional indemnity insurance: s443(6)(a)  Incriminate practitioner: s443(6)(b) o Otherwise—failure to comply →  50 PU: s443(2)  For 14 days after written notice of non-compliance → prima facie evidence of professional misconduct: s443(3)&(4)  Entity can engage a person to prepare report: s443(1)(b) Andrew Trotter LWB433 Professional Responsibility Decision to start proceedings  May dismiss where— (s448(1)) a. No reasonable likelihood of finding of unsatisfactory conduct (s448(1)(a))  BOP—but increased likelihood for graver breaches: Briginshaw sliding scale; s649(2) Considering— (LSC Prosecution Guidelines [18])  evidence  Strength  Whether may be excluded  defences open to practitioner  Witnesses  willing and able to give testimony  Credit of witnesses  reliability b. Dismissal in the public interest (s448(1)(b)) Considering— (LSC Prosecution Guidelines [22])  Seriousness of conduct  Whether included dishonesty, taking advantage of vulnerable clients or third parties or was pre meditated  Whether genuine mistake/misunderstanding o Whether respondent acknowledges mistake & shows remorse o Whether respondent co-operated fully and frankly in investigation  prejudice to public confidence in integrity of disciplinary process if action not taken  Apparent prevalence of conduct (deterrence)  Whether likely to be repeated  Whether raises matter of law of general importance  Whether finding would entitle someone to compensation  Respondent’s age, health and infirmity  Previous disciplinary findings against respondent  Likely length/expense of hearing  Likely outcome and whether respondent will agree to initiate outcome personally  Otherwise—Start a proceeding where commr considers appropriate: s447 c. Discretion—leniency grounds in Prosecution guidelines, [25]  Voluntarily came forward with evidence  Provide LSC with full and frank disclosure of conduct  Undertake to co-operate with LSC’s investigation and do so  Have not encouraged or compelled anyone else to be involved in the conduct (not a ―ringleader‖ or instigating conduct) o Options if leniency grounds apply → (Prosecution guidelines, [26])
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