A lawyer must act responsibly and ethically in their 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 Commissioner (LPCC). Pursuant to s 77C of the Legal Practitioners Act 1981 (SA), the Commissioner must investigate a complaint unless:
The Commissioner has the power to commence an investigation even if they have not received a complaint [s 77B(1)].
If a lawyer fails in their responsibilities or ethical obligations, their conduct may constitute unsatisfactory professional conduct or professional misconduct. These terms are defined in sections 68 and 69 of the Legal Practitioners 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:
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 Practitioners Act 1981 (SA) lists a number of types of conduct capable of constituting unsatisfactory professional conduct or professional misconduct. It includes, but is not limited to:
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:
The LPCC does not have the power to:
The Commissioner will advise the complainant where they determine 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, they 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 [s 77J]:
With the consent of the lawyer, the Commissioner may order the lawyer to:
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 Practitioners Disciplinary Tribunal.
An Australian-registered foreign lawyer must not engage in any conduct in practising foreign law that would, if the conduct were engaged in by an Australian legal practitioner in practising Australian law in this jurisdiction, be capable of constituting professional misconduct or unsatisfactory professional conduct.
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.
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 [Legal Practitioners Act 1981 (SA) s 89C(7a)].
Lawyers found guilty of misconduct in other jurisdictions will have their details published on their state's Disciplinary Register.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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