Disciplinary structures

12.18 Misconduct and breaches of ethical obligations by lawyers are largely dealt with by law societies or committees and bodies such as the legal services commissions or boards and the ombudsman in each state and territory. Significant reform, including to disciplinary structures, the ability of consumers of legal services to be involved in the complaints process, and the range of sanctions available, has occurred across jurisdictions in recent years.[20]

State and territory disciplinary structures

12.19 Legal professional disciplinary structures and processes vary across jurisdictions.[21] Currently, complaints about the conduct of practitioners can be made by a number of parties and are lodged with a central legal services commission, a practitioner’s complaints committee or conduct board, or the relevant law society.[22] Generally, it is then open to the relevant body to dismiss, investigate or initiate disciplinary proceedings in relation to the complaint.[23] Complaints in some jurisdictions may be referred to mediation. In some instances the complaint is referred directly to the relevant disciplinary tribunal in that jurisdiction.

12.20 Following a finding that a practitioner’s conduct constitutes unsatisfactory professional conduct or professional misconduct, a range of sanctions may be imposed—from a caution to being struck off the roll of practitioners.[24] In most jurisdictions, at least one disciplinary body can impose any order that it considers appropriate.[25] The Supreme Court in each jurisdiction has inherent jurisdiction over all practising lawyers and hears appeals from the relevant disciplinary tribunals.

The National Legal Services Board and Commissioner

12.21 As part of the National Legal Profession Reform Project, the Australian Government has proposed a new national framework to regulate the profession. The proposed framework consists of a National Legal Services Board (the Board) and a National Legal Services Commissioner (the Commissioner). These bodies would ‘operate within a delegated model, with many of the functions of the national bodies to be performed in practice by local representatives’.[26] The Board would be responsible for making National Rules to give effect to the National Law, including rules governing legal practice, conduct and continuing professional development.[27]

Court-imposed sanctions

12.22 A lawyer’s primary duty to the court is supervised and enforced by the court, which ‘retains an inherent supervisory jurisdiction over its officers, directed at preserving the proper administration of justice’.[28] In addition to this inherent jurisdiction of the court, jurisdiction is also conferred under statute by way of judicial appeal from disciplinary tribunals. Courts possess a range of discretionary powers to discipline parties and lawyers for breach of both procedural rules and ethical obligations. The Federal Court’s power to sanction certain discovery conduct, and the question of whether such power should be articulated in greater detail in legislation, is discussed in Chapter 7. Costs orders, which may operate as a sanction, are discussed in Chapter 9.

[20] Y Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (5th ed, 2010), 217.

[21] The ALRC welcomes the move towards harmonisation under the National Legal Profession Reform Project.

[22] Legal Profession Act 2004 (NSW) s 505; Legal Profession Act 2007 (Qld) s 429; Legal Practitioners Act 1981 (SA) s 76; Legal Profession Act 2007 (Tas) ss 57, 58; Legal Profession Act 2004 (Vic) s 4.4.8; Legal Profession Act 2008 (WA) ss 410(2), 555; Legal Profession Act 2006 (ACT) s 394(2); Legal Profession Act 2006 (NT) s 472(1).

[23]Legal Profession Act 2004 (NSW) ss 513, 525, 526; Legal Profession Act 2007 (Qld) s 429; Legal Practitioners Act 1981 (SA) ss 77, 82; Legal Profession Act 2007 (Tas) ss 58, 60, 65A, 65B, 65C; Legal Profession Act 2004 (Vic) s 4.4.13; Legal Profession Act 2008 (WA) ss 421(3)(a), 415(1)(a)(c); s 415(2)(b). See also: Legal Profession Act 2008 (WA) ss 415(1)(d), 415(2)(a), 415(2)(c), 416(7), 417(1), 418; Legal Profession Act 2006 (ACT) ss 399(1)(a),(g), 399(2), 401, 402, 406(1), 410(1)(a), 412; Legal Profession Act 2006 (NT) ss 477, 478(1)(a), (h), 496(1)(a).

[24] These sanctions are prescribed in state and territory legal profession legislation and were outlined in more detail in the Consultation Paper.

[25] Legal Practitioners Act 1981 (SA) s 89(e); Legal Profession Act 2007 (Tas) ss 470(1), 485(2)(f), 487; Legal Profession Act 2004 (Vic) ss 4.3.17(f), 4.4.19(n); Legal Profession Act 2006 (ACT) s 425(1)(b); Legal Profession Act 2006 (NT) ss 514, 525(2).

[26] National Legal Profession Reform Taskforce, Consultation Report (2010), Executive Summary, 2.

[27] National Legal Profession Reform Project, Legal Profession National Law: Consultation Draft (2010) s 9.1.1–9.1.4. As noted above, these rules would be developed by the Law Council and Australian Bar Association, subject to approval by the Board: s 9.1.6.

[28] G Dal Pont, Lawyers’ Professional Responsibility (4th ed, 2010), 370.