This article provides a snapshot into issues relating to unsatisfactory professional conduct and professional misconduct issues for lawyers in Queensland and the process from when a complaint is made, the modes of investigation and levels of disciplinary action.
Complaints against lawyers in Queensland
The Legal Profession Act 2007 (Qld) (LPA) sets out the framework for how complaints may be made against legal practitioners in Queensland. The Legal Services Commission (LSC) is responsible for the receipt, assessment and investigation of complaints regarding legal practitioners.1
Prior to making a complaint to the LSC consumers of legal services are encouraged to discuss their concerns with the solicitor or firm they have been dealing with. If the dispute is unable to be resolved then consumers are encouraged to make a complaint to the LSC.
Section 429 LPA sets out who may make a complaint and the form a complaint must be in. The LSC has various powers under sections 430(2)(b) and 432 to dismiss the complaint before commencing investigations. If the LSC does not dismiss the complaint then notification must be given to the practitioner under section 436 or 437. The practioner is then provided a ‘reasonable’2 time to provide submissions in response.
Conduct complaints v consumer complaints
When a complaint is made the LSC must determine whether it believes that the complaint relates to a practitioner’s conduct or whether the alleged conduct is more appropriately considered to be a consumer complaint.
A consumer complaint is defined in s440 LPA and is essentially a dispute that does not involve an issue of unsatisfactory professional conduct or professional misconduct. If a complaint is considered a consumer dispute the LSC can suggest that the matter be mediated and the LSC is not obligated to continue with the investigation process.3
Commencing an investigation
After providing the notification to the solicitor, and receiving any submissions in response, the LSC may then decide to commence an investigation into the complaint pursuant to s435 LPA. The LSC can conduct this investigation themselves or choose to refer the investigation to the Queensland Law Society (QLS) to conduct the investigation.4 There are certain circumstances set out in s436 LPA that prohibit the LSC from referring the investigation to the QLS.
The investigation remains subject to the LSC’s direction and control even when it elects to refer the investigation to the QLS.5 The QLS must report to the LSC6 and the LSC ultimately has the discretion to determine what action is to be taken at the completion of an investigation.
Investigation powers and practitioners’ cooperation with investigators
The entity carrying out the investigation, be it the LSC or QLS, has powers to compel practitioners to assist in the investigation by providing information to, appearing before, or producing documents to the entity.7 Practitioners are afforded 14 days to comply with the investigator’s request and failure to do so may mean that the practitioner will be dealt with for professional misconduct.8 There have indeed been decisions in Queensland where practitioners have been found guilty of professional misconduct for failing to comply with a request from an investigator.9
Investigators are also afforded a range of further powers including entering and searching any premises with consent or by warrant and the power to seize documents.
Commencing Disciplinary Proceedings
After an investigation is complete the LSC or QLS may decide that the matter:
- should be subject to disciplinary proceedings; or
In making this decision the commission will have regard to the ‘reasonable likelihood test’ and the ‘public interest’ test.
The Reasonable Likelihood Test
The LSC will refer a matter to the relevant disciplinary body (Legal Practice Committee or the Queensland Civil and Administrative Tribunal) if it believes that there is a reasonable likelihood of a finding by the disciplinary body of unsatisfactory professional conduct or professional misconduct. In making a finding that the matter should be referred under the reasonable likelihood test the LSC must be satisfied that there is sufficient evidence to support that decision.
The Public Interest Test
The object of disciplinary proceedings is to protect the public and uphold the reputation of the profession. The object of displinary proceedings is not punitive.
There are a number of factors that the LSC take into account in regard to whether it will refer the matter to a displinary body or dismiss the complaint. The LSC guidelines on discipline applications list 15 factors that should be taken into account – the last of these being ‘any other relevant consideration.’ The commission therefore has a broad discretion in weighing up whether or not a matter should, or shouldn’t be, referred to a disciplinary body on the basis of public interest.
It is worth noting that some of the factors support the referral of a matter to a disciplinary body where other factors support the dismissal of the complaint.
LSC’s cooperation policy
An interesting side note is that the LSC will actively consider more lenient outcomes for legal practitioners that voluntarily come forward and cooperate through the discipline investigation and/or proceedings stage. The LSC will exercise this discretion by either electing not to refer the matter to a disciplinary body or providing submissions to the disciplinary body to mitigate sanction.
Queensland Civil and Administrative Tribunal (QCAT)
If, after the investigation is completed, the LSC believes that the matter involves serious allegations (often involving professional misconduct) it will refer the complaint to be dealt with before QCAT. The matter must be heard by a Supreme Court Judge to be assisted by a lay person and a practitioner.10
QCAT has a wide range of powers to make various orders in displinary matters referred by the LSC. These are set out in s456 LPA and include, but are not limited to, ordering the practitioner to undertake education, imposing conditions on the practitioner’s registration, suspending the practitioner’s registration and removing the practitioner’s name from the roll.
QCAT decisions, in certain circumstances, may be appealed to the Court of Appeal.
Legal Practice Committee
The Legal Practice Committee deals with less serious matters. It does not hear matters that involve allegations of professional misconduct and can only hear matters relating to unsatisfactory professional conduct. Section 622 and 639 LPA set out the make up of the Committee. Section 458 sets out the orders that the Committee has the power to make. The Committee does not have the power to remove a practitioner’s name from the roll but can make orders including, but not limited to, public reprimands, fines and compensation orders.
Committee decisions, in certain circumstances, may be appealed to QCAT.
This article is not intended to be a comprehensive guide to the complaints process involving lawyers in Queensland. It is intended be a snapshot of how the process operates and the various stakeholders and decision makers involved.
The process is something that all lawyers should familiarise themselves with so that they are aware of, and prepared for, this process if they are ever the subject of a complaint to the LSC.
Hopefully, this article can provide a quick point of reference to lawyers alike on this important area.