Unsatisfactory professional conduct and professional misconduct

A lawyer must act responsibly and ethically in his or her client's interests. Any person (whether a client or not), who is dissatisfied with the conduct of a lawyer may complain to the Legal Profession Conduct Commission (LPCC). The Commissioner must investigate a complaint unless:

  • the complaint is vexatious, misconceived, frivolous or lacking in substance;
  • the complainant has not responded, or has responded inadequately, to request for further information;
  • the subject-matter of the complaint has been or is already being investigated, whether by the Commissioner or another authority;
  • the subject-matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body;
  • the subject-matter of the complaint is the subject of civil proceedings, except so far as it is a disciplinary matter;
  • the complaint is not one that the Commissioner has power to deal with;
  • the Commissioner is satisfied that it is otherwise in the public interest to close the complaint.

The Commissioner has the power to instigate an investigation an own initiative investigation) even if he has not received a complaint.

If a lawyer fails in his or her responsibilities or ethical obligations his or her conduct may constitute unsatisfactory professional conduct or professional misconduct.  These terms are defined in sections 68 and 69 of the Legal Practitioner’s Act 1981 (SA) as follows:

‘unsatisfactory professional conduct’ includes conduct of a 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 reasonably competent legal practitioners.

‘professional misconduct’ includes:

(a)  unsatisfactory professional conduct of a 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 a 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 practice the profession of the law.

Unsatisfactory professional conduct is misconduct of a lesser kind than professional misconduct. The difference between the two will often be unclear and only capable of definition once the circumstances of the conduct have been fully investigated.

Section 70 of the Legal Practitioner’s Act 1981 (SA) lists a number of types of conduct that is capable of constituting  unsatisfactory professional conduct  or professional misconduct. It includes, but is not limited to:

  • conduct consisting of a contravention of the Act, regulations or the legal profession rules;
  • charging excessive legal costs;
  • convictions for serious offences, tax offences, or offences involving dishonesty;
  • becoming an insolvent under administration or becoming disqualified from managing or being involved in the management of any;
  • failing to comply with an order of the Legal Practitioners’ Disciplinary Tribunal;
  • failing to comply with a compensation order made under the Legal Practitioners Act 1981 (SA);
  • failing to comply with the terms of a professional mentoring agreement.

The types of behaviour by a lawyer that the LPCC can investigate may amount to unsatisfactory professional conduct or professional misconduct and include but are not limited to:

  • persistent delay in answering a client's letters, emails or telephone calls
  • not accounting for a client’s money held or disbursed on the client's behalf
  • not keeping certain information confidential
  • acting in the same matter for both the client and other people whose interests conflict with the client's interests
  • acting against a former client
  • misleading the client, the court, or another lawyer
  • behaving inappropriately towards the client, a third party or another lawyer
  • unreasonable delay in completing work on a client's behalf.

The LPCC does not have the power to:

  • give legal advice; or
  • order a lawyer to hand over documents to anyone other than the LPCC itself; or
  • compel a lawyer to act for a particular client; or
  • recommend a particular lawyer or firm of lawyers; or
  • advise a lawyer how to perform his or her work, or
  • investigate allegations of negligence against a lawyer.

The Commissioner will advise the complainant where he determines that there has been unsatisfactory professional conduct or professional misconduct by a lawyer arising out of the complaint investigation. The Commissioner has no power to make a finding of negligence against the lawyer. If the Commissioner has reason to believe that a person has suffered a loss as a result of unsatisfactory professional conduct or professional misconduct by a lawyer, he may advise that person accordingly.

If, after investigation, the Commissioner considers that a lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the Commissioner may:

  • Reprimand the lawyer;
  • Order the lawyer to apologise to any person affected by their conduct;
  • Order the lawyer to redo the work subject of the investigation at no cost to the client;
  • Waive or reduce the fees for the work;
  • Pay the cost for having the work that is the subject of the investigation redone;
  • Order the lawyer to undertake training, education or counselling or to be supervised;
  • Order the legal practitioner to pay a fine not exceeding $5,000;
  • Order specified conditions on the lawyer’s practicing certificate.

And with the consent of the lawyer the Commissioner may order the lawyer to:

  • Submit to medical examination;
  • Receive counselling;
  • Participate in a program of supervised treatment or rehabilitation to address behavioural problems, substance abuse or mental impairment;
  • Enter into a professional mentoring agreement and comply with that agreement;
  • Submit their files and records to examination at intervals for a specified period;
  • Suspend the lawyer’s practicing certificate for a period not exceeding 6 months;
  • Make a specified payment or do or refrain from doing a specified act in connection with legal practice;
  • Order the legal practitioner to pay a fine not exceeding $20,000.

If the Commissioner determines that the lawyer has been guilty of unsatisfactory professional conduct or professional misconduct, the Commissioner may refer the matter to the Legal Practitioner’s Disciplinary Tribunal.

Appeals

If, following a determination made by the Legal Profession Conduct Commissioner finding either unsatisfactory professional conduct or professional misconduct, the person making the complaint is not satisfied with the determination, he or she may appeal the determination to the Legal Practitioners Disciplinary Tribunal (the Tribunal). Lawyers may, in certain circumstances, also appeal to the Tribunal.

An appeal must be instituted within one month unless there are good reasons to extend the time period.

Disciplinary Register

A finding of Professional Misconduct, whether made by the Commissioner, the Tribunal or the Supreme Court, must be published on the Disciplinary Register. A less serious finding of Unsatisfactory Professional Conduct may be included on the Register, at the discretion of the Commissioner.

Not all lawyers subject to disciplinary action prior to 1 July 2014 are listed on the Register. Only lawyers who have been struck-off (ie removed from practice), suspended from practice or placed under supervision for a period of time (and which is still in effect as at 1 July 2014) are on the Register.  Some information is not on the Register for older disciplinary actions.

The Commissioner may enable information to be removed from the Register in circumstances prescribed by regulation [s89C (7a) Legal Practitioners Act 1981 (SA)].

Lawyers found guilty of misconduct in other jurisdictions will have their details published on their state's Disciplinary Register.

Unsatisfactory professional conduct and professional misconduct  :  Last Revised: Tue Jan 20th 2015
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