Week 11 - Complaints and Discipline

Question 1

Supreme Court Inherent Jurisdiction

Answer 1

→ Ultimate authority over lawyer discipline exists independently of statutory framework
→ Preserved by s264 of LPUL
→ Power to strike off practitioners
→ Hearing disciplinary appeals
Acting on own motion when necessary

Question 2

Office of the Legal Services Commissioner

Answer 2

→ OLSC is an independent statutory body with powers conferred under the LPUL
→ The OLSC receives all complaints about lawyers in NSW. The OLSC investigates complaints and oversees the investigation of complaints, plays a role in resolving consumer matters and may take disciplinary action against a lawyer or commence disciplinary proceedings in the NCAT Occupational Division
The OLSC is part of the co-regulatory system for the legal profession in NSW alongside the Law Society of NSW and the NSW Bar Association

Question 3

Consumer Matters (s 269 LPUL)

Answer 3

• Can order work to be redone
• Can order a lawyer to undergo extra education
• Conditions placed on practising certificate
• Focus on quick and practical solutions; mediation
  Low evidentiary standard

Question 4

Disciplinary Matter (s 270 LPUL)

Answer 4

• A complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct
• Falls short of the competence and diligence expected of a lawyer
• Involves substantial or consistent failure to maintain professional standard
• More formal investigative process
• Bringshaw Standard (higher civil standard)
  Focus on professional sanctions

Question 5

Mixed Complaints (s 271 LPUL)

Question 6

Complaints Process

Answer 6

Question 7

Conduct Outside Practice

Answer 7

→ Legal profession depends on public trust
→ Some private conduct undermines that trust
→ Focus on whether conduct demonstrates unfitness
→ Criminal Convictions: Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 –> barrister convicted of manslaughter (car accident) –> conviction alone wasn’t sufficient for disbarment
→ Drug Related Convictions: Re a Practitioner [2004] WASCA 283
Tax indiscretions: NSW Bar Association v Hamman (1999) 217 ALR 553