Disciplinary structures and court imposed sanctions

4.92 Practitioner obligations arise largely from jurisdiction-specific legislation or professional rules. Consequently, misconduct and breaches of legal ethical obligations by lawyers are largely dealt with by law societies or committees and bodies such as the legal services commissions or boards and the ombudsman in each jurisdiction.

4.93 Significant reform, including to disciplinary structures, the ability of consumers of legal services to be involved in the complaints process, and the range of sanctions available, has occurred across jurisdictions in recent years.^[84]

4.94 Following the implementation of the Model Laws, misconduct is primarily characterised as ‘professional misconduct’ or ‘unsatisfactory professional conduct’, other than in South Australia where the distinction is made between ‘unsatisfactory conduct’ and ‘unprofessional conduct’.^[85]

4.95 Professional misconduct at common law is conduct by a lawyer in their ‘professional capacity which would be reasonably regarded as disgraceful or dishonourable by [the lawyer’s] professional brethren of good repute and competency’.^[86]

4.96 While professional misconduct is also defined under legal profession legislation, the statutory concepts are ‘neither exhaustive nor intended to restrict the meaning and application of misconduct at common law’.^[87] Under the legal profession legislation, professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner 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 practitioner is not a fit and proper person to engage in legal practice.^[88]

4.97 Unsatisfactory professional conduct includes:

Conduct of an Australian legal practitioner 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 reasonable competent Australian legal practitioner.^[89]

4.98 Traditionally, other forms of constraining the conduct of lawyers, for example liability under general law to clients for breach of the duty of competence, care and skill, have complemented, and in some instances acted as an alternative, to the regulatory framework provided by the courts and professional bodies.^[90] However, consideration of those more general mechanisms for enforcing a lawyer’s duty to the client are a matter for individual clients and the ALRC’s focus in this part of the chapter is in on systemic mechanisms for responding to alleged breaches of legal ethical obligations.

The National Legal Services Board and National Legal Ombudsman

4.99 As part of the National Legal Profession Reform Project, the Australian Government has proposed a new national framework to regulate the profession.

4.100 The proposed regulatory framework consists of a National Legal Services Board (the Board) and a National Legal Ombudsman (the Ombudsman). These bodies would ‘operate within a delegated model, with many of the functions of the national bodies to be performed in practice by local representatives’.^[91] While many of the functions of Board and Ombudsman would be delegable, the bodies would be responsible for monitoring of the functions and where necessary could assume control over special functions.^[92]

4.101 The Board would be responsible for making National Rules to give effect to the National Law, except with respect to rules governing legal practice, conduct and continuing professional development.^[93] These rules would be developed by the Law Council and ABA, subject to approval by the Board.^[94]

4.102 The Ombudsman would be established as an independent body responsible for determining complaints about practitioners, ensuring compliance with the National Law and National Rules and serving an educative function.^[95]

4.103 The Ombudsman’s compliance role would encompass prosecution of practitioner misconduct^[96] and powers to undertake complaint, audit and compliance investigations^[97] and a role in administering the penalties regime envisaged under the National Law. Failure to comply with the National Law or National Rules would be capable of constituting unprofessional conduct or professional misconduct.^[98]

4.104 In cases of unprofessional conduct or professional misconduct the Ombudsman may impose the following possible sanctions:

• caution or reprimand a practitioner;
• require an apology from the practitioner;
• order the practitioner to attend training;
• impose conditions on a practising certificate;
• order the work to be redone; or
• fine the practitioner (up to $25,000).^[99]

4.105 The Ombudsman may also initiate proceedings in the designated disciplinary tribunal of the relevant jurisdiction. The designated tribunal’s powers include: the power to make orders requiring the practitioner to do or refrain from doing something in connection with the practice of law; the ability to recommend that the practitioner be removed from the roll; and the power to have the practitioner’s practising certificate cancelled.^[100]

State and territory disciplinary structures

4.106 Legal professional disciplinary structures and processes vary across jurisdictions and the ALRC welcomes moves towards harmonisation as part of the National Legal Profession Reform Project.

4.107 Currently, complaints about the conduct of practitioners can be made by a number of parties and are lodged with a central legal services commission, a practitioner’s complaints committee or conduct board, or the relevant law society.^[101]

4.108 Generally, it is then open to the relevant body to dismiss, investigate or initiate disciplinary proceedings in relation to the complaint.^[102] Complaints in some jurisdictions may be referred to mediation. In some instances the complaint is referred directly to the relevant disciplinary tribunal in that jurisdiction.

4.109 Following a finding that a practitioner’s conduct constitutes unsatisfactory professional conduct or professional misconduct, a range of sanctions may be imposed, which range in severity from a caution to being struck off the roll of practitioners. Available sanctions include:

• removing the practitioner’s name from the local or interstate roll;^[103]
• suspending, cancelling, or imposing conditions upon the practitioner’s practising certificate;^[104]
• cautioning or reprimanding the practitioner;^[105]
• fining the practitioner, with the maximum allowable fine ranging from $10,000–$100,000;^[106]
• requiring the practitioner to comply with a compensation, costs, or other payment order;^[107]
• requiring the practitioner to apologise;^[108]
• requiring the practitioner to seek advice or complete a course in legal education;^[109]
• requiring the practitioner to seek counselling or medical treatment;^[110] and
• imposing conditions or limitations on the practitioner or the practitioner’s legal practice, such as periodic inspections or working under supervision.^[111]

4.110 In addition to these listed sanctions, there is also a certain degree of flexibility—in most jurisdictions at least one disciplinary body can impose any order that it considers appropriate.^[112]

4.111 The Supreme Court in each jurisdiction has inherent jurisdiction over all practising lawyers and hears appeals from the relevant disciplinary tribunals.

Court-imposed sanctions

4.112 A lawyer’s primary duty to the court is supervised and enforced by the court, which ‘retains an inherent supervisory jurisdiction over its officers, directed at preserving the proper administration of justice’.^[113] In addition to this inherent jurisdiction of the court, jurisdiction is also conferred under statute by way of judicial appeal from disciplinary tribunals.

4.113 Courts possess a range of discretionary powers to discipline parties and lawyers for breach of both procedural rules and legal ethical obligations. This includes costs orders, which can be made personally against a lawyer under a range of legislation including the legal profession and civil procedure acts and various court rules.^[114] Relevantly, such power may be exercised where lawyers act in a manner contrary to their legal ethical obligations, for example, by unduly delaying litigation or failing to obey court directions or orders.^[115]

4.114 By way of example, under the Civil Procedure Act 2010 (Vic), a broad range of sanctions are available to enforce the overarching obligations.^[116] Contraventions can be taken into account in a court exercising any of its powers, including its discretion as to costs.^[117] The court can also make compensatory orders^[118] and any order it considers to be in the interests of a person prejudicially affected by the contravention.^[119] Sanctions can be imposed on the court’s own motion or on application by a person with sufficient interest in the proceedings.^[120]