Professional discipline 

Professional discipline is not the same as negligence, and it is not primarily about compensating a client. Its purpose is protective: to maintain the standards of the profession and to protect the public from practitioners who fall short of them. That purpose explains both the standards applied and the orders available.

In New South Wales, Victoria and Western Australia the governing scheme is the Legal Profession Uniform Law. Other jurisdictions retain their own legislation on broadly similar lines. The scheme is described as uniform, but adoption has not been universal, and the first step in any problem is to identify which regime applies.

The two levels of conduct

Unsatisfactory professional conduct is conduct occurring in connection with legal practice that falls short of the standard of competence and diligence a member of the public is entitled to expect of a reasonably competent lawyer.¹ The standard is objective and the bar is not high — a single instance of carelessness may qualify.

Professional misconduct is the more serious category. It covers unsatisfactory professional conduct involving a substantial or consistent failure to reach the required standard, and conduct — whether in connection with practice or not — that would justify a finding that the lawyer is not a fit and proper person to engage in legal practice.²

Two features of that second limb deserve attention. It reaches conduct outside legal practice: dishonesty in a personal capacity may found a finding of misconduct because of what it reveals about character. And it is framed around fitness, which is why misconduct findings can support removal from the roll where unsatisfactory conduct findings cannot.

Certain conduct is declared by statute to be capable of constituting one or the other — conviction for a serious offence, insolvency, failure to comply with an order, and breaches of the trust accounting provisions among them.

How a complaint progresses

A complaint may be made by anyone, and is directed to the designated local regulatory authority for the jurisdiction. The authority may deal with a complaint in several ways:

• Dismiss it, where it is misconceived, lacking substance, or out of time.
• Treat part of it as a consumer matter — a dispute about costs or service that is better resolved by mediation or a binding determination than by discipline.
• Investigate it as a disciplinary matter, with powers to require documents and explanations. A practitioner's failure to co-operate is itself capable of being unsatisfactory professional conduct.

After investigation, the authority may make a determination itself, or initiate proceedings in the disciplinary tribunal. The dividing line is seriousness: the authority may determine a matter it regards as unsatisfactory professional conduct, but a finding of professional misconduct, and the orders that follow from it, are for the tribunal.

Orders

At the authority level the orders are corrective: a caution or reprimand, a compensation order up to a statutory limit, a requirement to undertake further education, to be supervised, or to redo work at no charge, and a modest fine.

At the tribunal level the orders extend to the practitioner's ability to practise: conditions on the practising certificate, suspension, a substantial fine, and — where fitness is the issue — an order recommending removal from the roll. Note the word: Legal Profession Uniform Law s 302(1)(f) empowers the tribunal to make "an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court". The tribunal does not strike the practitioner off; the Supreme Court does, on its own roll and in its inherent jurisdiction over its officers. Removal is not a punishment for the past but a protective conclusion about the present: the question is whether the practitioner is presently a fit and proper person.

Who regulates

Most jurisdictions operate under the Legal Profession Uniform Law or closely modelled legislation, and the functions are split:

• a local regulatory authority — the Law Society, Bar Association, or a Legal Services Commissioner — receives complaints, investigates, and may deal with lower-level matters itself;
• a designated tribunal hears the serious matters and makes the orders that affect the right to practise; and
• the Supreme Court retains its inherent jurisdiction over its own officers, which exists independently of the statute and cannot be removed by it.

The inherent jurisdiction matters when the statutory scheme does not reach the conduct, and it is the source of the court's power to strike a practitioner from the roll.

The purpose is protective, not punitive

Every disciplinary decision rests on this. The jurisdiction exists to protect the public and to maintain confidence in the profession, not to punish the practitioner.

Two consequences follow, and both are examinable:

• The question at the serious end is whether the practitioner is a fit and proper person to remain on the roll — assessed at the date of the hearing, not the date of the conduct. Evidence of insight, rehabilitation and changed circumstances is therefore directly relevant.
• Orders are chosen for their protective effect. A condition requiring supervision or further education may be preferred to a suspension where it addresses the risk.

Because the purpose is protective, the ordinary criminal protections do not all apply, and disciplinary proceedings may follow a criminal acquittal on the same facts without offending double jeopardy.

Conduct outside practice

Conduct unconnected with the practice of law can still found a finding, where it demonstrates that the practitioner is not a fit and proper person — dishonesty offences, serious violence, and tax evasion being the recurring categories.

The statutes also list conduct that is capable of constituting unsatisfactory professional conduct or professional misconduct, including conviction of a serious offence or a tax offence, becoming insolvent under administration, and being disqualified from managing a corporation. Listing does not make a finding automatic; the tribunal still assesses fitness.

Disclosure and the practising certificate

Separate from the complaints process, practitioners must disclose prescribed matters when applying for or renewing a practising certificate, and must notify the regulator of certain events as they occur. Failure to disclose is frequently treated as more serious than the underlying matter, because it goes directly to candour with the regulator.

Applying this in a problem question

1. Identify the jurisdiction and whether the Uniform Law or a state Act applies.
2. Characterise the conduct against both definitions, and say why it falls on one side of the line rather than simply asserting the more serious category.
3. Consider whether the conduct occurred in connection with practice, and if not, whether it bears on fitness.
4. Trace the procedural path: complaint, possible consumer matter, investigation, then determination or tribunal proceeding.
5. Match the orders to the forum — do not attribute removal from the roll to the regulatory authority.

Self-check

• Have I confirmed which legislative scheme applies before using Uniform Law terminology?
• Have I distinguished the two levels by seriousness or persistence, rather than by outcome?
• Have I considered conduct outside practice where fitness is in issue?
• Have I kept the authority's orders separate from the tribunal's?