Legal Profession Conduct Commissioner (SA) 

Act: Legal Practitioners Act 1981 (SA).¹

Established: The office was created on 1 July 2014, replacing the former Legal Practitioners Conduct Board.

Purpose: The Commissioner investigates complaints of unsatisfactory professional conduct or professional misconduct by South Australian lawyers. Two provisions do the work and they are easily swapped. Section 77B(2) carries the duty: subject to that section and to ss 67B and 77C, the Commissioner must investigate where a complaint is made or where the Attorney-General or the Society so directs. (Section 77B(1) is the separate discretion to investigate on the Commissioner's own initiative, without any complaint.) Section 77C is the release valve, letting the Commissioner close a complaint at any stage without considering its merits — where it is vexatious, misconceived, frivolous or lacking in substance, where the complainant will not cooperate, where the subject matter is already being investigated, where it would be better investigated or dealt with by police or another investigatory or law enforcement body, where it is the subject of civil proceedings except so far as it is a disciplinary matter, where the Commissioner has no power to deal with it, or where closure is otherwise in the public interest. So the duty is in s 77B(2) and the exceptions are in s 77C; citing s 77C for the duty states the obligation by reference to the provision that relieves it.

Powers conferred under the Act

The Commissioner can take a broad range of disciplinary action directly, including suspending a practitioner's practising certificate and requiring specified payments for less serious matters. For more serious conduct, the Commissioner can lay a charge before the Legal Practitioners Disciplinary Tribunal, or bring proceedings in the Supreme Court seeking orders including striking a practitioner's name from the roll of legal practitioners.

Is it a prosecuting authority?

In a narrow, specific sense, yes — and this is a genuine exception to the general pattern that regulators investigate and refer rather than prosecute. In Legal Profession Conduct Commissioner v Semaan [2017] SASCFC 19,² the Full Court of the Supreme Court of South Australia (Kourakis CJ, Lovell and Doyle JJ) heard an application brought by the Commissioner to strike a practitioner from the roll, after the practitioner had deliberately falsified his academic transcripts when applying for legal employment. The Court held that forging academic transcripts is serious professional misconduct and ordered the practitioner struck off. The Commissioner does not prosecute criminal offences — that remains the province of the police and the DPP — but it does itself institute and pursue professional-discipline proceedings, a real and checkable difference from bodies like Ombudsman SA that only investigate and recommend.

How it relates to the other SA bodies

The Commissioner regulates lawyers' professional conduct; it is not a source of legal assistance itself. Where a person needs legal representation rather than a mechanism to complain about a lawyer's conduct, the Legal Services Commission of South Australia is the relevant body instead.

Self-check

• Have I put the duty in s 77B(2) and the closure grounds in s 77C, rather than citing s 77C for both?
• Have I cited Semaan [2017] SASCFC 19 for both the outcome (striking off) and what it shows about the Commissioner's power to itself bring disciplinary proceedings?
• Have I distinguished the Commissioner's narrow disciplinary-prosecution power from a general criminal prosecuting power, which it does not have?