SEMINAR 10 SPEAKING NOTES 1. Aim of Disciplinary Proceedings Against Lawyers

a. Primary aim is protective

- The main purpose served by disciplinary proceedings against lawyers

is to protect members of the public from misconduct by lawyers

rather than punish them (Wentworth)

- Protective function is a recognition of the social value in the

availability of the services provided to the public, combined with an

understanding of the vulnerability of many who require such services

(Meakes)

- A lawyer-defendant in a disciplinary matter must co–operate reasonably in the process and avoid an unduly combative approach, and behaviour inconsistent with this duty may impact on the appropriate disciplinary response (Hannebery)

- The lawyer’s fitness to practise is to be determined at the time of the hearing, from which it follows that events that have occurred after the alleged misconduct can influence a finding of whether the lawyer is presently unfit to practise law (Goold)

b. Other aims of disciplinary proceedings

- A secondary aim of professional disciplinary proceedings is as a means

to safeguard the reputation of the profession (Westbrook)

- A disciplinary sanction may therefore deter other lawyers from

engaging in the impugned conduct (‘general deterrence’), and also

deter the lawyer disciplined (‘specific deterrence’) (Ciampa)

c. Punitive aspect of disciplinary function

- Professional disciplinary proceedings may generate an outcome that

is punitive in effect, albeit chiefly by linking deterrence to the central

protective aim (Sahade)

- A ‘punitive response’ shows the grave view the court or tribunal takes

of the misconduct; a failure to mark its censure and disapproval via a

punitive response in the case of grave misconduct may be viewed by

the public as almost tacit approval (Boylen)

d. Compensatory aspect of disciplinary function

- Generally speaking, disciplinary proceedings have not been a vehicle

through which a remedy can accrue to an individual injured by a

lawyer’s improper conduct; civil processes between lawyers and their

clients fulfil this function (Wakeling)

- The relevant regulatory body and disciplinary tribunal in New South

Wales has the power to direct a lawyer to pay compensation to a

person who has suffered as a result of the lawyer’s misconduct (see

Legal Profession Act 2004 (NSW) Pt 4.9)

2. Meaning of ‘Misconduct’ in the Context of Professional Discipline Against Lawyers

a. Concepts of misconduct under statute

- A distinction is made between ‘professional misconduct’ and

‘unsatisfactory professional conduct’

- ‘Unsatisfactory professional conduct’ is defined to include a lawyer’s

conduct 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

(Legal Profession Act 2004 (NSW) s 496)

- ‘Professional misconduct’ includes unsatisfactory professional

conduct where it involves a substantial or consistent failure to reach

or maintain a reasonable standard of competence and diligence, and

conduct whether or not happening in connection with the practice of

law that would justify a finding that the lawyer is not a fit and proper

person to engage in legal practice (Legal Profession Act 2004 (NSW) s

497)

- The following can be unsatisfactory professional conduct or

professional misconduct (see further Legal Profession Act 2004 (NSW)

s 498(1)):

i. conduct consisting of a contravention of the legal

profession legislation, regulations or rules;

ii. charging of excessive legal costs in connection with the

practice of law;

iii. conduct in relation to which there is a conviction for a serious offence, a tax offence or an offence involving dishonesty;

iv. conduct in failing to comply with an order of a professional or disciplinary body;

v. conduct in failing to comply with a compensation order

3. Disciplinary Orders Against Lawyers

a. Generally

- The court, whether pursuant to its statutory appeal or inherent

jurisdiction may make a wide variety of disciplinary orders, including

orders:

i. orders striking off (McCaffery)

ii. suspending (Nicholson)

iii. reprimanding (Bhandari); or

iv. fining an errant lawyer (Re LF Heydon)

b. Striking off

- Striking off (also variously termed ‘removal’ or ‘disbarment’) is the

most serious professional sanction and is appropriate where the

tribunal or court finds the lawyer not to be a fit and proper person to

remain a member of the profession (Re Davis)

- Although most commonly utilised where the findings reveal a lack of

honesty and integrity, striking off may be used even in the absence of

misconduct, such as in respect of a lawyer who suffers mental illness

or loss of faculties by reason of age (Re a Solicitor)

- It should not be assumed that a finding of professional misconduct of

itself justifies striking off (Costello)

- Whether or not removal from the roll is ordered depends on the

gravity of the misconduct, and whether, most commonly because of

lack of honesty or integrity, the need for public protection and

preservation of the reputation of the profession necessitates striking

off (Re a Medical Practitioner)

c. Suspension

- An order for suspension is premised on a view that at the termination

of the period of suspension the lawyer will no longer be unfit to

practise because, subject to any limitation imposed on the issue of a

practising certificate, his or her name remains on the roll and he or

she may resume practice (McNamara)

- Suspension can be ordered where a lawyer has fallen below the high

standards expected of them but not in such a way as to indicate that

he or she lacks the qualities of character and trustworthiness that are

the necessary attributes of a person entrusted with the

responsibilities of a lawyer (Re a Practitioner)

- Suspension will not ordinarily be an appropriate sanction where a

lawyer has repeatedly behaved dishonestly (Bax)

- Suspension will be a more likely disciplinary response where, though

the misconduct is serious, it has not involved any dishonesty on the

lawyer’s own part (Clough)

- An order suspending a lawyer from practice may be appropriate

where it is made long after the misconduct that demonstrated

unfitness occurred and a meritorious degree of rehabilitation

extending over the interval between misconduct and the hearing of

the case has been shown (Jauncey)

- Suspension may be a suitable disciplinary response where the lawyer

suffers some temporary physical ailment or mental irrationality, in

circumstances where there is a reasonable prognosis that, with

appropriate treatment or supervision, the lawyer is likely, within a

finite time, to be fit to practise (Re Mack)

- Suspension may also be appropriate during a period of imprisonment

for a reason that is not sufficient to justify striking off, as it would be

detrimental to the public’s confidence in the administration of justice

were a lawyer permitted to practise from gaol (Ziems)

d. Reprimand

- A reprimand as a disciplinary response is usually confined to findings

of professional misconduct or, more likely, unsatisfactory professional

conduct, that are insufficiently serious to merit suspension or striking

off (Westbrook)

- Being reprimanded on its own does not oust any practise rights,

however, it remains a serious matter, as it marks the disgrace of a

member of an honourable profession inherent in the misconduct

(Hinde)

- A court or tribunal is more inclined to reprimand a lawyer where not

only is his or her misconduct not marked by any tinge of dishonesty,

but is isolated in nature and entirely out of character, as supported by

evidence as to the lawyer’s good character (Chamberlain)

4. Factors Impacting Disciplinary Orders Against Lawyers

a. In addition to the basic nature of the misconduct, the following factors are

relevant when determining what disciplinary response should ensue:

- Frequency of misconduct and prior misconduct findings (Nicholson)

- Lawyer’s age and professional experience (Chamberlain)

- Lawyer’s attitude (Kerin)

- Lawyer’s (lack of) appreciation of wrongdoing (Westbrook)

- Testimonials and opinions by third parties (Re Robb)

- Medical condition or addiction (Wakeling)

- Pressure and stressors (Murphy)

- Loss suffered by others as a result of misconduct (Starky)

- Loss already suffered by lawyer as a result of misconduct (Re

Maidment)

5. Disciplinary Procedures Against Lawyers

a. General Principles

- The onus of proving misconduct lies on the party alleging it, namely,

the relevant regulatory or professional body or other complainant

who has standing (Westbrook)

- The cases make reference to a standard variously described as a ‘high

degree of satisfaction’, ‘comfortably and confidently satisfied’, ‘very

sure’ and, most commonly, ‘reasonable satisfaction’ (Briginshaw)

- Although clearly not the criminal standard, it may be more exacting

than the ordinary civil standard, such that the degree of satisfaction

required rests on the gravity of the alleged misconduct (Re a Barrister

and Solicitor)

- Requirements of procedural fairness are superimposed on the

statutory framework by the general law, and so may extend beyond

the specific requirements of the statute (Legal Profession Act 2004

(NSW) s 591)

- Natural justice requires that the lawyer be apprised in clear and

precise terms, before the hearing, of the nature and particulars of the

case he or she is facing (Re Evatt)

- Hearings before a relevant body or tribunal be conducted in public

unless the body or tribunal determines otherwise in the interests of

justice (Legal Profession Act 2004 (NSW) s 560)

- Participants in disciplinary proceedings are generally entitled to legal

representation (Administrative Decisions Tribunal Act 1997 s 71(1))

- The rules of evidence apply to non-court disciplinary proceedings

(Legal Profession Act 2004 (NSW) s 558)

- The discretion vested by statute in the relevant professional

disciplinary body or tribunal as to the award of costs, including the

costs of investigating the conduct that led to the finding, is ordinarily

exercised against a lawyer found to have behaved unprofessionally

(Legal Profession Act 2004 (NSW) s 566(1))

- A lawyer who succeeds on the merits cannot necessarily be assured of

receiving costs, as statute in some jurisdictions premises a costs order

in favour of the lawyer on ‘special circumstances’ (Legal Profession

Act 2004 (NSW) s 566(3))

- Costs may be ordered against a lawyer if the sole or principal reason

the proceedings were instituted was a failure to co-operate with the

relevant body, or for any other reason such an order is warranted

(Legal Profession Act 2004 (NSW) s 566(2))

- Statute requires relevant bodies to publicise disciplinary action taken

against a lawyer, and to keep a register of that action available for

public inspection (Legal Profession Act 2004 (NSW) s 577)

- Lawyers are, more generally, also obliged to assist an inquiry into

their own professional conduct (Johns)

6. Disciplinary Procedures Against Lawyers in New South Wales

a. Complaints

- Any person may make a written complaint concerning the

professional conduct of a lawyer to the Legal Services Commissioner

(the ‘Commissioner’) (Legal Profession Act 2004 (NSW) ss 503-505)

- The Commissioner’s main functions in the disciplinary process are to

receive and investigate complaints regarding the conduct of lawyers,

as well as review the decisions of the Law Society Council or Bar

Council (s 688(1) of the Legal Profession Act 2004 (NSW))

- He or she may summarily dismiss a complaint that is frivolous,

vexatious, misconceived, lacking in substance or insufficiently

particularised (s 511(1)(b) of the Legal Profession Act 2004 (NSW))

- A complaint made more than three years after the conduct in

question cannot be dealt with unless a determination is made that it

is fair and just to deal with it having regard to the delay and the

reasons for it, or it involves an allegation of professional misconduct

and it is in the public interest to deal with it (s 506 of the Legal

Profession Act 2004 (NSW))

b. Investigation by Commissioner or a council

- The Legal Services Commissioner (the ‘Commissioner’) may

investigate a complaint, or may take over a Bar Council’s or Law

Society Council’s investigation (Legal Profession Act 2004 (NSW) s

526(1))

- If the Commissioner or council believes there is a reasonable

likelihood that the lawyer will be found guilty of unsatisfactory

professional conduct or professional misconduct, disciplinary

proceedings must be instituted in the Administrative Decisions

Tribunal (the ‘Tribunal’) (s 537(2) of the Legal Profession Act 2004

(NSW))

- If the Commissioner or council believes that the lawyer is reasonably

likely to be found guilty by the Tribunal of unsatisfactory professional

conduct but not professional misconduct, the lawyer may instead be

reprimanded, or the complaint dismissed, if the lawyer is generally

competent and diligent in taking into account any other substantiated

complaints made against her or him (Legal Profession Act 2004 (NSW)

s 540(1), 540(2))

c. Mediation

- Either the Legal Services Commissioner (the ‘Commissioner’) or a

council may refer a consumer dispute to mediation (Legal Profession

Act 2004 (NSW) s 515(2))

- A ‘consumer dispute’ is a dispute about conduct of a lawyer to the

extent that it does not involve an issue of unsatisfactory professional

conduct or professional misconduct (s 514 of the Legal Profession Act

2004 (NSW))

- A client who is given a bill of costs may refer a costs dispute about

that bill to the Commissioner or a council for mediation if the amount

is less than the prescribed amount and no application has been made

for the assessment of the whole or part of the bill (s 336(1), 336(4) of

the Legal Profession Act 2004 (NSW) (the prescribed amount being

$10,000)

d. Review of council decision

- Where a council decides to dismiss a complaint, to simply reprimand

the lawyer, or to omit from the allegations particularised in

information before the Administrative Decisions Tribunal matter that

was originally part of the complaint, the complainant may apply to the

Legal Services Commissioner (the ‘Commissioner’) for a review of the

decision (Legal Profession Act 2004 (NSW) s 543(1))

- Having conducted the review, the Commissioner may confirm the

council’s decision, refer the matter to mediation, reinvestigate the

complaint, investigate any part of the complaint omitted from the

allegations in the information laid by the council, reprimand the

lawyer, make a compensation order against the lawyer, or institute

proceedings in the tribunal against the lawyer (s 545(1) of the Legal

Profession Act 2004 (NSW))

e. Administrative Decisions Tribunal

- The Administrative Decisions Tribunal must conduct a hearing into

any complaint in proceedings instituted before it by the Legal Services

Commissioner (the ‘Commissioner’) or council (Legal Profession Act

2004 (NSW) ss 551(1), 553)

- If it finds the lawyer guilty of professional misconduct or

unsatisfactory professional conduct, it may make orders including

striking off, suspension, fine, reprimand, payment of compensation,

or cancellation of practising certificate (ss 562 and 571(2) of the Legal

Profession Act 2004 (NSW))

- A decision of the Tribunal may be appealed to the Supreme Court by

way of rehearing (s 729A(1), 729A(2) of the Legal Profession Act 2004

(NSW))

- No appeal lies against Tribunal decisions made on an interlocutory

basis, with the parties’ consent, or as to costs, except with the court’s

leave (s 729A(4) of the Legal Profession Act 2004 (NSW))

7. Discipline for Misconduct in the Course of Legal Practice

a. False or Misleading Statements or Impressions Made by Lawyers

- Where it is proven that the lawyer knowingly misled a court, such a

finding is one of dishonesty that strikes at the heart of the judicial

process, and so it is not unusual for a lawyer against whom such a

finding is made to be struck off from practice (Re Sawley)

- A finding of recklessness as opposed to knowledge, though, may

influence the severity of the disciplinary sanction (McElvenny)

- The case law evinces various examples of lawyers who have knowingly

been parties to the presentation of false affidavits to the court, and

almost invariably this has generated a striking off order (Elman)

- To attempt to suborn a witness or bribe a participant in the court

process is redolent of dishonesty and disregard for the curial process,

and so amounts to professional misconduct ordinarily establishing

unfitness to practice (Kennedy)

- The making of knowingly or recklessly false statements, whether

written or oral, by a lawyer to third parties, such as other lawyers or

even to a client, is prima facie evidence of misconduct (Dennis)

- The case law emphasises the importance of being entirely frank with

communications with the relevant professional or regulatory body,

and its officers, and that corresponding so as to mislead that body

may be misconduct (McNamara)

- The forgery of a document, whether for the purposes of presenting it

to the court or a professional or regulatory body, or for any other

purpose, is clearly misconduct, as it goes to the heart of a lawyer’s

obligations (Stanoevski)

b. Fiduciary Breaches Made by Lawyers

- The fraudulent misappropriation of money received on behalf of

another person (collectively termed ‘trust money’) is clearly

professional misconduct (Moulton)

- Technical breaches of trust account requirements that involve no

element of dishonesty, such as an isolated failure to pay money

directly into a trust account or a failure to account, may not justify

suspension or disbarment, although they may attract a restriction on

the lawyer’s practising certificate and/or the fulfilment of additional

educational requirements (Lee)

- A lawyer who borrows money from a client without the client’s fully

informed consent commits a fiduciary breach, and is likely to commit

professional misconduct in so doing (Harvey)

- As part of the fiduciary proscriptions, a lawyer must avoid a situation

where he or she concurrently represents more than one client with

conflicting interests. Such conflicting interests are capable of

generating professional disciplinary consequences (Zaicos)

c. Misconduct in Relation to Fee Charging by Lawyers

- Independent of statutory prescriptions, the courts have recognised

that the charging of grossly excessive costs by a lawyer may amount

to professional misconduct (Re Veron)

- Charging of excessive legal costs in connection with the practice of

law is capable of being unsatisfactory professional conduct or

professional misconduct (Legal Profession Act 2004 (NSW) s 466(1)(b))

- Whether or not overcharging amounts to professional misconduct or

unsatisfactory professional conduct, and the appropriate disciplinary

response, depends largely on the degree and frequency of the

overcharging (Lardner)

- In each case, the relevant inquiry is whether the lawyer has charged

fees grossly exceeding those that would be charged by lawyers of

good repute and competency (Re Melvey)

- Factors that inform this inquiry include the amount at which the costs

in question was or would be likely be assessed, the difficulty of the

case, the novelty or complexity of the legal issues, the experience of

the lawyer, the quality of his or her work, the amount of time spent

on the matter; the responsibility involved, the amount or value of the

subject matter in issue, and any costs agreement that has been

entered into (D’Alessandro)

- Overcharging is aggravated where clients are heavily dependent on

the lawyer, whether because of their knowledge and/or

circumstances (Roche)

- That a costs agreement is a ‘no win no fee’ agreement has the

capacity, however, to raise the level of fee at which the epithet ‘gross

overcharging’ attaches (Roche)

d. Neglect or Delay by Lawyers

- Omissions by a lawyer to properly supervise his or her employees or,

in some cases, be vigilant to the activities of his or her partners, may

amount to professional misconduct or unsatisfactory professional

conduct (Re Johnston)

- A court or disciplinary tribunal will be inclined towards a more severe

disciplinary order where a principal attempts to shift the blame for his

or her own failure to properly supervise an employee, and/or where

the lack of supervision has occurred against a history of previous

unprofessional conduct (Tunn)

- A single instance of delay will not ordinarily justify suspension or

striking off (Mellifont)

- Gross neglect and delay, particularly involving a pattern of gross

neglect and delay, can constitute professional misconduct as it brings

the profession into serious disrepute (Re Moseley)

- A failure to respond (whether within a reasonable time or at all), or to

adequately respond, to inquiries from the relevant professional or

regulatory body is clearly unprofessional and capable of attracting a

disciplinary sanction (Veghelyi)

e. Other Forms of Misconduct in the Course of Legal Practice

i. Breach of undertaking

Lawyer’s failure to fulfil an undertaking given to

another lawyer may form the basis for disciplinary

proceedings, and may, depending on the

circumstances, amount to either professional

misconduct or unsatisfactory professional conduct

(Gregory)

ii. Misconduct in dealings affecting other lawyers or third parties

Actively exploiting an opposing lawyer’s error

Breaching the ‘no contact’ rule

The use of offensive language in communications

Making unsubstantiated complaints against other

lawyers

Engaging in discrimination, harassment or workplace bullying

iii. Disrespect to the court or its authority

Disrespect to the court can amount to professional

misconduct or unsatisfactory professional conduct

(Costello)

iv. Making unsupported allegations

It is a breach of a lawyer’s duty to the court to make

unsupported personal attacks or allegations against

another person in the course of practice

Such behaviour may amount to unsatisfactory

professional conduct or professional misconduct

(Clyne)

v. Breach of client confidentiality

The importance of confidentiality to the lawyer-client

relationship dictates that an unauthorised disclosure of

information derived in the course of a retainer can

generate professional disciplinary consequences (Legal

Services Commissioner)

8. Discipline for Misconduct Outside the Course of Legal Practice

a. Conviction of Lawyers for Offence in a Personal Capacity

- Merely because the general law and the legal profession legislation

speaks of ‘professional misconduct’ does not mean that the conduct

of a lawyer outside his or her legal practice cannot impact on his or

her professional status, a point recognised both pursuant to the

court’s inherent jurisdiction to discipline lawyers (Re Davis) and by the

definition of ‘professional misconduct’ in the legal profession

legislation (Legal Profession Act 2004 (NSW) s 497)

- Conduct by a lawyer that is unrelated to his or her professional

practice can amount to professional misconduct if it manifests the

presence or absence of qualities that are incompatible with, or

essential for, the conduct of practice (Cummins)

- Because the inquiry in a disciplinary matter differs from that in a

criminal trial, that a lawyer has already been punished criminally for

the offence does not obviate disciplinary proceedings, although it may

impact on the appropriate penalty (Re a Practitioner)

- In disciplining a lawyer who has already been the subject of a

conviction for the events that have prompted the disciplinary

proceedings, the court is concerned with what the proven acts of the

lawyer reveal about his or her fitness and propriety to remain a

member of the profession (Ziems)

- A conviction involving dishonesty is identified as capable of being

unsatisfactory professional conduct or professional misconduct (Legal

Profession Act 2004 (NSW) s 498(1)(c))

- A lawyer who is convicted for dishonesty outside his or her practice is

unlikely to escape a severe disciplinary response (such as striking off

or suspension) (Re a Practitioner)

- Conviction for a tax offence is capable of being unsatisfactory

professional conduct or professional misconduct (Legal Profession Act

2004 (NSW) s 498(1)(c))

- Convictions for tax offences do not always render the lawyer unfit to

practice, as the circumstances surrounding the events giving rise to

the convictions, including the lawyer’s attitude to his or her tax

obligations generally, are relevant to the disciplinary response (Cain)

- Lawyers who have been convicted of drug trafficking almost invariably

in so doing display a lack of fitness to practise, and so are ordinarily

struck off (Hill)

- Where the conviction arises not out of trafficking, but personal use

and possession, the disciplinary response may be a more lenient one,

depending on the circumstances and on the court or tribunal’s

satisfaction that the addiction has been addressed, via conditions on

the lawyer’s practising certificate (Re Quick)

- In circumstances where the court or tribunal is satisfied that the drug

possession or use does not represent a sustained course of conduct,

and the risk of recurrence has been adequately addressed, there may

be no need to impose conditions on the lawyer’s practice, although

this does not prejudice the need for a disciplinary response (Bull)

- As a general principle, a conviction for a serious sex offence, and

certainly multiple convictions for sex offences, dictate that the

lawyer-defendant is unfit to practise law (McKerlie)

- Sexual offending against children, in particular, is inconsistent with a

continued entitlement to practise law, such that even relatively

‘minor’ offences in this context are likely to generate a striking off

order, although this is not necessarily always the case (Rodda)

b. Personal Misconduct of Lawyers Not Sounding in a Criminal Conviction

- Proven dishonesty in non-professional dealings, even if not leading to

conviction in a criminal court, is likely to be viewed as inconsistent

with the prerequisites expected of a lawyer, as it reflects a lack of

appreciation for the honour of the profession and, as such, ordinarily

dictates unfitness to practise (Bolton)

- A lawyer who knowingly gives false evidence, even though not in the

course of legal practice, will be treated severely in a disciplinary forum

(Maddocks)

- The position is otherwise where the misleading or false statements

are not made knowingly but due to mistake or oversight (Law Society

of Tasmania)

- A lawyer who repeatedly flouts his or her civic duties to pay tax

reveals a lack of integrity and little respect for the law that he or she

as a professional is sworn to uphold (Cummins)

- Lawyers whose failure to meet tax obligations is not driven by an

attempt to favour their own financial interests ahead of their civic

duty and/or are explainable by apathy and unforeseen circumstance,

may avoid being struck off (Murphy)

- The conduct of a lawyer as or in becoming an insolvent under

administration, or in becoming disqualified from managing or being

involved in the management of any corporation under the

Corporations Act 2001 (Cth), is branded as capable of being

unsatisfactory professional conduct or professional misconduct (Legal

Profession Act 2004 (NSW) s 498(1)(d), 498(1)(e))

- A failure to fulfil the terms of a person’s bankruptcy, which may

require him or her to make contributions to the trustee-in-bankruptcy

or a specific creditor (such as the Australian Taxation Office) out of

income derived during the period of bankruptcy, may generate a

disciplinary consequence (Legal Profession Act 2004 (NSW) s

498(1)(d), 498(1)(e))