The Legal Services Commission (LSC) Investigation & Disciplinary Process
The Legal Services Commission (LSC)
When a lawyer receives a letter from the Legal Services Commissioner about a complaint, it can raise all sorts of fears and anxiety about the process and how the complaint might be resolved.
Practitioners should know that not every complaint received by the LSC is notified to the relevant practitioner. A large proportion of complaints are determined to be not to be proper complaints for the Commission to investigate, for various reasons. For example, a client complaint about costs which does not raise conduct issues might not be notified.
Although a practitioner might not appreciate it at the time, the main purpose of the Legal Services Commission is the protection of the public, and not the punishment of practitioners who fall short of their professional obligations. Moreover, if the Commissioner considers that the public can be adequately protected by measures other than a formal QCAT disciplinary application, then the matter can be resolved without proceedings and the embarrassment and expense of disciplinary proceedings is avoided.
Investigative Process
In those matters which proceed to an investigation, the practitioner is provided with a copy of the complaint, informed of the allegations or issues which the Commission requires the practitioner to respond to, notified of the due date for the response and provided with information about the investigation process.
A copy of the practitioner’s response is usually provided to the complainant who has an opportunity to comment.
Disciplinary Process
The Commission is tasked with assessing whether there is a reasonable likelihood of a successful discipline application and whether such an application is in the public interest.
There will be a porportion of complaints in which the explanation provided by the practitioner sets out the true facts of the matter, and it will be clear that there is no reasonable likelihood of a successful disciplinary prosecution. In that case, the complaint will be dismissed and will not proceed further.
Even if the Commission determines that there is a reasonable likelihood of a successful discipline application, the Commission has a statutory obligation to consider whether a prosecution is in the public interest.
Of those complaints that are sent to the practitioner for a response and explanation, only a small portion of complaints are the subject of formal disciplinary proceedings in QCAT. While disciplinary proceedings initiated by the Legal Services Commissioner are heard in QCAT, those proceedings are managed and decided by Justices of the Supreme Court, sitting in their capacity as QCAT Members or as President of QCAT. While the proceedings are filed in the QCAT registry, directions hearings, applications and determinations generally take place in the Supreme Court building in Brisbane on a separate Legal Practitioners List.
If a complaint is handled appropriately, there is a very real possibility that it may be resolved without the institution of a Discipline Application.
It is important to consider and obtain advice with respect to some preliminary issues before sending in a response to the LSC. You may wish to refer to our article which discusses some of those considerations linked here.
One of the fundamental principles in this area of law is that, unlike an adversarial litigation disputes, a practitioner is generally required to cooperate with the LSC and to be frank and honest in their dealings with the regulatory authority. Indeed, the manner in which a practitioner deals with the regulator is directly relevant to the consideration of the practitioner’s conduct and the sanction to be applied.
The jurisdiction is a quasi-criminal one in which common law privileges against self-incrimination and civil penalty liability are preserved. Client confidentiality obligations also often need to be considered.
Responding to the Complaint
The practitioner’s response to the complaint by reference to any appropriate apology, rectification of systems,
Generally, it is not in the legal practitioner’s interest to provide a robust and aggressive response. Rather, the approach should be a cooperative one, setting out the facts and information that the Commissioner requires (insofar as privilege, confidentiality, self-incrimination and professional indemnity issues don’t arise) to determine what further steps, if any, need to be taken.
The worst course to take, but it occurs all too often, is for a lawyer to not seek advice and/or fail to communicate with the Commission in relation to the complaint. The ‘burying one’s head in the sand approach’ will inevitably lead to a QCAT disciplinary prosecution in circumstances where appropriate submissions may have otherwise resolved the complaint without the involvement of the Tribunal.
A failure by a lawyer to cooperate with the Commission in relation to an investigation may, of itself, amount to professional misconduct. For example, Section 443(1) of the Legal Profession Act 2007 (Qld) requires a lawyer, if asked, to provide a full explanation in writing or personally. If the lawyer fails to cooperate, a notice may be issued pursuant to 443(3) requiring that the cooperation be forth coming within 14 days. If that notice is ignored, the LSC may institute disciplinary proceedings for professional misconduct on the basis of the lawyer’s failure to respond to the Section 443(3) notice. That is, you may be disciplined for failing to respond to a notice, regardless of any good excuse you may have had for the conduct originally complained about.
Assuming you cooperate and provide submissions, there is (statistically speaking) a very good chance that your matter can be resolved with the LSC without any disciplinary proceedings at all. Of course such an outcome is less likely if the conduct complained about is very serious, such as trust account defalcation.
Before responding to allegations with respect to your professional conduct, it is advisable that you avail yourself of the QLS free Senior Counsellor service to discuss the matter confidentially with an experienced volunteer lawyer, or with a QLS Ehics Centre solicitor or a lawyer who has experience representing lawyer clients in this area of disciplinary law.
Facing Disciplinary Prosecution
In the event that you realise that you may have acted contrary to your professional obligations, it is not a time to panic or give in to feelings of shame and anxiety.
There still may be important early steps that you can take to greatly reduce the likelihood of a disciplinary prosecution.
The Legal Services Commissioner has a wide ranging discretion about what action to take where a breach of professional duties has occurred.
The LSC publishes disciplinary guidelines which sets out matters that are required to be taken into account by the Commissioner before a decision to prosecute is made. Often, where an error in professional conduct has occurred it is important for the lawyer to show insight and to set out a course of action which will ensure that the error is not repeated.
A lawyer’s mental health and general heath at the time of the conduct may also be relevant to whether the Commissioner decided to prosecute. There are a range of other factors that are addressed in the disciplinary guidelines that may be relevant to a lawyer’s situation. Often, if a practitioner proposes a voluntary outcome that is above and beyond the likely sanction that would be handed down in QCAT, then the Commissioner may find that it is not in the public interest to prosecute as a prosecution is not required to protect the public. If you obtain early advice about these options, it will be easier to find the correct approach which is more likely to lead to a decision not to prosecute.
Sometimes, it will become apparent that a prosecution will be commenced despite the facts that you say are in your favour. If you intend to defend a prosecution, it is vital to gather all of the evidence early and commit your recollections to paper, as it may be a few years from the date you are notified about the investigation to the date of a hearing.
Defending a Prosecution
Some matters warrant a determined defence at hearing. The onus pf proof which the LSC carries in a Discipline Application is determined at the higher end of the balance of probabilities on the Briginshaw standard. This is a cogent or strict standard where allegations of serious misconduct are made which have significant consequences for the respondent practitioner
If a lawyer concedes that they are liable for disciplinary action in QCAT, a sanction hearing will be arranged to determine the appropriate sanction for the conduct. At a sanction hearing, a lawyer may wish to present affidavit evidence setting out an explanation and remorse together with references and, if relevant, expert evidence with respect to any psychological evidence of stressors affecting the practitioner at the time of the conduct.
Talk to us
If you are facing an LSC investigation, there is no need to compound your stress by trying to navigate the investigation and disciplinary process on your own.
We invite you to contact Craig DoRozario or Rob Franklin for a confidential discussion about your situation and your options.
Call today on (07) 5532 3133 or (07) 3221 4999.