Complaints and Discipline

Concept of ‘professional misconduct’

• ‘Professional misconduct’ is a common law concept – that something is done by a lawyer ‘which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency’ (Allison v General Council of Medical Education and Registration [1894] 1 QB 750, 763).
• Legislation in all jurisdictions provides a non-exhaustive list of conduct that may constitute unsatisfactory professional conduct or professional misconduct.

Section 296 Uniform Law

•  Unsatisfactory professional conduct

For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer 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 lawyer.

Examples of unsatisfactory professional conduct

Examples of behaviour amounting to ‘unsatisfactory professional conduct’ include:

• Appearing late for a court hearing, or not appearing at all, when the name of the law practice appears on the court file;
• Sending documents to the wrong address;
• Being rude or aggressive;
• Failing to do work that is expected and/or within a reasonable time;
• Not informing clients in writing of the potential disadvantages of acting for both the vendor and purchaser to a proposed conveyancing transaction, or both the seller and purchaser in a sale or business transaction;
• Not withdrawing from a matter, when acting for both parties in a conveyance or business purchase, or other type of transaction where the lawyer acts for both parties, when a conflict of interest arises;
• Failing to communicate effectively and promptly to clients; and
• substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.

(Source: Marlene Ebejer, Legal Practice and Ethics Q & A, (LexisNexis, 3nd edn, 2019)

Section 297 Uniform Law

• Professional misconduct

1. For the purposes of this Law, professional misconduct includes—
2. Unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
3. Conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
4. For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

Examples of professional misconduct

Examples of conduct held to constitute ‘professional misconduct’ include:

• Lying to or otherwise misleading the court (e.g. Law Society of New South Wales v Foreman (1994) 34 NSWLR 408);
• Improperly influencing a witness (e.g. Kennedy v Law Society of New South Wales (1939) 13 ALJ 563;
• Gross negligence (e.g. Re Mayes and Legal Practitioners Act [1974] 1 NSWLR 19);
• Conviction for a serious offence, particularly if that offence involved dishonesty, whether as part of legal practice or otherwise (though circumstances may be taken into account) (e.g. Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279);
• Failure to lodge income tax returns over a lengthy period of time (e.g. New South Wales Bar Association v Cummins [2001] NSWCA 284;
• Overcharging (e.g. Legal Services Commissioner v Bechara [2008] NSWADT 215);
• Conduct occurring outside of legal practice, which might bring the profession into disrepute (e.g. Coe v New South Wales Bar Association [2000] NSWCAS 13).

Section 298 Uniform Law

• Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—

(a) to (j) - see Uniform Law
Disciplinary orders

• Depends on the seriousness and gravity of the misconduct. Orders extensive, including:
• Striking off: lawyer found not to be fit and proper person to remain in practice (e.g. Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279);
• Suspension: absence of dishonesty (Law Society of the Australian Capital Territory v Gates [2006] ACTSC 126); serves to warn others (Re Drew (1920) 20 SR (NSW) 463); reform the lawyer (Re Evatt (1967) 67 SR (NSW) 236);
• Reprimand: not so substantial as to merit suspension or striking off but nevertheless a serious matter (Legal Profession Complaints Committee v Detata [2012] WASCA 214);
• Fines (Legal Services Commissioner v Mullins [2006] LPT 12);
• Orders to undertake further profession education;
• Imposing conditions on the lawyer’s practising certificate.