| A "disciplinary complaint" is a complaint about conduct to which the Legal Profession Act 2004 applies to the extent that the conduct, if established, would amount to unsatisfactory professional conduct or professional misconduct: s4.2.3 of the Act.
Any person may make a disciplinary complaint. It is to be made to the Legal Services Commissioner.
For the purposes of the Act, 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 reasonably competent Australian legal practitioner.
Failure by an Australian legal practitioner to comply with a condition of his or her practising certificate constitutes unsatisfactory professional conduct unless the failure amounts to professional misconduct: s4.4.5.
For the purposes of the Act, 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. |
The following conduct by an Australian legal practitioner constitutes professional misconduct-
| a. |
wilful or reckless failure to comply with a condition to which an Australian practising certificate held by the practitioner is subject; |
| b. |
wilful or reckless failure to comply with an undertaking given to a
court, tribunal, the Commissioner or the Board: s4.4.6
|
Note: Section 4.4.4 specifies conduct that is capable of constituting unsatisfactory professional conduct or professional misconduct.
Time limit for complaints
Please refer to our section on time limits. Click here.
What may the Legal Services Commissioner do?
Disciplinary complaints are dealt with in accordance with Part 4.4 of the Act.
Commissioners referral to the Bar
The Commissioner may, pursuant to s4.4.9 of the Act refer a disciplinary complaint to the Victorian Bar Inc for investigation.
If a disciplinary complaint is referred to the Bar under section 4.4.9, the Bar must investigate the complaint and report to the Commissioner about the complaint by the stated date or a later date stated in an extension.
BACK TO TOP
Powers of the Commissioner
After receiving that report, the Commissioner may-
| a. |
deal with the matter under s4.4.13 of the Act; or
|
| b. |
require the prescribed investigatory body to investigate the complaint further and report to the Commissioner; or
|
| c. |
investigate or further investigate the complaint himself or herself. |
The Commissioner must apply to the Tribunal for an order under Division 4 in respect of the Australian legal practitioner the subject of the investigation if the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct.
Under s4.4.13(3) of the Act, if the Commissioner is satisfied that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct, the Commissioner may-
| a. |
apply to the Tribunal for an order under Division 4 in respect of the practitioner; or |
| b. |
with the consent of the practitioner, reprimand or caution the practitioner; or |
| c. |
take no further action against the practitioner if satisfied that-
| i. |
the practitioner is generally competent and diligent; and |
| ii. |
there has been no substantiated complaint (other than the complaint that led to the investigation) about the conduct of the practitioner within the last 5 years. |
|
BACK TO TOP
Compensation
Under s4.4.13(4) of the Act, if the investigation arose from a complaint under which the complainant requested a compensation order, the Commissioner may require the practitioner to pay compensation to the complainant as a condition of deciding under sub-section (3) not to make an application to the Tribunal in respect of the practitioner.
Taking no further action against the practitioner
Under s4.4.13(5) of the Act, if the Commissioner is satisfied that there is no reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct or unsatisfactory professional conduct, the Commissioner must take no further action against the practitioner.
In determining what action, if any, to take under s4.4.13, the Commissioner may rely on a recommendation contained in a report of the Bar under the Act.
The Bars Ethics Committee will investigate any complaint referred to the Bar by the Commissioner.
Function of the Victorian Civil and Administrative Tribunal
If, after it has completed a hearing in relation to an application in respect of an Australian legal practitioner, the Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may make any one or more of the orders specified in s4.4.17, 4.4.18 or 4.4.19 of the Act: s s4.4.16.
If the Tribunal makes an order in respect of an application under s4.4.13 (other than an interim order), a party may in certain circumstances and within 28 days of the day of the order apply to the Tribunal for a rehearing of the application: S4.4.21.
To view the published orders of the Tribunal, click here.
|
SITEMAP
CONTACT