Misconduct

The Commissioner is responsible for investigating complaints about the conduct of lawyers.

If a client or third party believes that a lawyer’s behaviour consitutes misconduct, a complaint can be made to the Commissioner who generally must then investigate the lawyer's conduct.

There are two definitions of misconduct under the Act:

Unsatisfactory Professional Conduct

This type of misconduct only relates to the conduct of a lawyer when they are practising law. It occurs when a lawyer falls short of the standard of competence and diligence that a member of the public is entitled to expect when engaging a lawyer’s services.

Professional Misconduct

This is the more serious of the two types of misconduct and it can extend to conduct outside of the practice of law.  There are two categories of Professional Misconduct as follows: 

• Where a lawyer engages in Unsatisfactory Professional Conduct (ie the less serious type of misconduct), but he or she does so substantially or consistently.
• Where the lawyer’s conduct, either professionally or outside of the practice of the law, would justify a finding that the lawyer is not a fit and proper person to practise law.

Below are some examples of conduct by a lawyer which may amount to misconduct:

• unreasonable delay in progressing a matter or in complying with instructions
• repeated failure to return telephone calls or respond to letters or other communications without reasonable excuse
• intimidating or bullying behaviour
• charging excessive legal costs
• acting when there is a conflict of interest
• deliberately or recklessly misleading a client or a Court
• mishandling money, especially trust money
• a breach of the Act, Regulations or the Australian Solicitors’ Conduct Rules
• bankruptcy
• failing to cooperate with the LPCC
• comply with an order made by the Legal Practitioners Disciplinary Tribunal or another disciplinary body
• failing to pay a fine imposed under the Act
• failing to comply with a compensation order made under this Act

For a more extensive list of conduct that may be considered misconduct read the Australian Solicitors’ Conduct Rules or refer to section 70 of the Act.   

Disciplining misconduct

The Commissioner has a range of powers to deal with Unsatisfactory Professional Conduct and Professional Misconduct, by taking disciplinary action against a lawyer. And in some circumstances he will take proceedings in relation to that misconduct in the Legal Practitioners Disciplinary Tribunal or the Supreme Court.