Objetivos específicos 3 y 4 (análisis de caso de estudio)

5.2 One of the general issues raised in this chapter is whether the LSC or relevant Council should be able to make enforceable orders at the end of the investigative stage. Powers currently available to the LSC or Councils at this stage include:

 allowing the complaint to be mediated if the parties agree;

 reprimanding the practitioner with respect to unsatisfactory professional conduct (such a reprimand may only be made with the consent of the practitioner);

 dismissing the complaint, which has no adverse effect on the practitioner and therefore does not require enforcement.

5.3 The LSC and Councils are responsible for receiving, investigating and prosecuting complaints about conduct while the Tribunal is responsible for determining complaints and imposing disciplinary sanctions (which are capable of enforcement). The fact that many of the remedies available to the LSC and Council require some form of consent on the part of the practitioner highlights the limited role of those bodies and emphasises the separation of roles between them and the Tribunal. It is presumed that if a practitioner does not consent to an outcome in relation to a conduct matter, the matter will then be referred to the Tribunal. Similar distinctions operate in other Australian schemes, for example, those in Western Australia and South Australia.

1. Except for the decision to refer a complaint to the Tribunal, which is dealt with in Chapter 3.

Powers of the LSC and Councils after an investigation

The Western Australian system

5.4 The Western Australian provisions² relating to the conduct of practitioners were enacted following a 1983 report which recommended that there be a body to investigate complaints and a tribunal to discipline practitioners in relation to matters arising from such investigations.³ However, the inquiry also recommended that there be a limited jurisdiction, where appropriate, for the complaints handling body to deal with “minor disciplinary matters”

and that these powers only be exercised with the practitioner’s consent.⁴ The powers that may be exercised with the practitioner’s consent (and notwithstanding that no finding has been made against the practitioner) include:⁵

 imposing a fine of not more than $500;

 issuing a reprimand;

 ordering that the practitioner seek and implement advice relating to the management and conduct of the practitioner’s practice;

 ordering that the practitioner reduce or refund certain fees and charges; and

 ordering that the practitioner pay all or part of the costs incurred by the complainant or the investigating body in relation to the investigation.

5.5 Even though no order can be made without the consent of the practitioner, an appeal lies to the Supreme Court in relation to any such order.⁶ Conciliation is also possible at the investigative stage,

2. Legal Practitioners Act 1893 (WA) Pt 4.

3. Western Australia, Inquiry into the Future Organisation of the Legal Profession in Australia (Report, 1983) at 63.

4. Western Australia, Inquiry into the Future Organisation of the Legal Profession in Australia (Report, 1983) at 83.

5. Legal Practitioners Act 1893 (WA) s 28A.

6. Legal Practitioners Act 1893 (WA) s 28A(5). Presumably the right could be exercised by a complainant or professional association, there being no apparent reason why the practitioner would want to.

and effect may be given to negotiated settlements provided the parties agree.⁷

The South Australian system

5.6 In South Australia the Legal Practitioners Conduct Board investigates complaints (in relation to conduct issues only) and lays charges, while the Legal Practitioners Disciplinary Tribunal takes disciplinary action against practitioners found to have engaged in unsatisfactory or unprofessional conduct.⁸ This division of functions was made clearer by amendments introduced in 1998.⁹ The 1998 amendments gave the Board a limited jurisdiction in relation to

“relatively minor” matters. Like Western Australia, the Board’s jurisdiction requires the consent of the practitioner, thereby emphasising the distinction between the roles of the two bodies.¹⁰ The powers that may be exercised, with the practitioner’s consent, include:¹¹

 issuing a reprimand;

 making an order imposing conditions on the practitioner’s practising certificate that relate to the practitioner’s legal practice or require the practitioner to undertake further education, training or counselling;

 ordering payment to a specified person; and

 ordering that the practitioner “refrain from doing a specified act in connection with legal practice”.

5.7 The Board may also investigate allegations of overcharging and, as the result of an investigation, may recommend that a

7. Legal Practitioners Act 1893 (WA) s 28B.

8. Legal Practitioners Act 1981 (SA) Pt 6. See also South Australia, Parliamentary Debates (Hansard) House of Assembly, 3 June 1998, the Hon M H Armitage, Minister for Government Enterprise, Second Reading Speech at 1069.

9. Legal Practitioners (Miscellaneous) Amendment Act 1998 (SA).

See C Cocks, “Act Changes Lawyer Discipline” (1999) 21(9) Bulletin (The Law Society of South Australia) 20.

10. Legal Practitioners Act 1981 (SA) s 77AB(1).

11. Legal Practitioners Act 1981 (SA) s 77AB(1)(c)-(e).

Powers of the LSC and Councils after an investigation

practitioner reduce charges or refund amounts to complainants.¹² Conciliation is also possible at the investigation stage, and effect may be given to negotiated settlements provided the parties agree.¹³ Failure to comply with the terms of such an agreement amounts to unprofessional conduct.¹⁴

Proposals made in submissions

5.8 Some proposals discussed in this chapter would allow the LSC and Councils to make orders (without consent) that would be enforceable against practitioners who have been complained against. These include:

 orders for compulsory mediation;

 reprimands without consent;

 orders for compensation; and

 enforceable undertakings.

The Commission favours retaining a reasonably clear distinction between the roles of the investigative bodies (the LSC and the Councils) and the determinative body (the Tribunal). The introduction of any of the powers listed above may, to some extent, blur the distinct roles of the different bodies. However, there are practical problems associated with maintaining a complete separation of functions. For example, the Commission is concerned to ensure that the workload of the Tribunal is not substantially increased to the extent that it would hamper the expeditious treatment of serious conduct matters. In such circumstances it may be that certain minor conduct matters can be more appropriately dealt with by giving the investigative bodies power to deal with the matters without referring them to the Tribunal.

12. Legal Practitioners Act 1981 (SA) s 77A(5)(b).

13. Legal Practitioners Act 1981 (SA) s 77B.

14. Legal Practitioners Act 1981 (SA) s 77B(6).

DEALING WITH CONDUCT ASPECTS