Annual Report 2008-09 - Legal Services Commissioner

Chapter TWO
Handling complaints
A disciplinary complaint is a complaint about
the conduct of a legal practitioner to the extent
that the conduct, if established, would amount to
unsatisfactory professional conduct or professional
misconduct.
Unsatisfactory professional conduct is defined by
the Legal Profession Act 2004 to include conduct of
a legal practitioner occurring in connection with the
practice of law that falls short of the standard
of competence and diligence that a member of the
public is entitled to expect of a reasonably competent
legal practitioner.
Professional misconduct is more serious. It is defined to
include:
• unsatisfactory professional conduct of a legal
practitioner, where the conduct involves a
substantial or consistent failure to reach or
maintain a reasonable standard of competence
and diligence; and
• conduct of a legal practitioner, whether occurring
in connection with the practice of law or
occurring otherwise than in connection with the
practice of law, that would, if established justify a
finding that the legal practitioner is not a fit and
proper person to engage in legal practice.
Case Study
Disciplinary complaint
Failure to obtain authority to disclose breach of undertaking
Sarah and her brother Peter were not on
good terms. Their father died many years
ago and their mother lived in a nursing
home and suffered from dementia. Sarah
held an enduring Power of Attorney from
her mother. Peter instituted proceedings
in the Tribunal seeking to be appointed
as his mother’s guardian and to overturn
Sarah’s enduring Power of Attorney. Peter
also disputed ownership of heirlooms
found in their mother’s house. Peter
claimed that they were given to him as
gifts but Sarah disagreed.
Mediation was arranged to take place
before the hearing. Meanwhile Peter and
Sarah undertook not to remove any of
the heirlooms from the house until the
dispute was properly resolved. However
Peter breached his undertaking and
removed the heirlooms from the house.
Peter told his lawyer not to let Sarah
know about what he had done.
The mediation took place. However
Peter’s lawyer did not tell Sarah that Peter
had removed the heirlooms from the
house. When she became aware of what
Peter had done, Sarah felt that she had
been misled. Sarah made a complaint to
the Legal Services Commissioner about
Peter’s lawyer.
The Legal Services Commissioner
acknowledged that Peter’s lawyer was
in a difficult position. However the
Commissioner found that Peter’s lawyer
should have obtained authority to
disclose the breach of the undertaking.
Had Sarah been aware of Peter’s breach,
she would not have proceeded to
mediation and incurred unnecessary
legal costs. The Commissioner found that
in not attempting to obtain authority
to disclose, Peter’s lawyer had acted
improperly. The Commissioner, with the
lawyer’s consent, cautioned the lawyer.
10 Legal Services COMMISSIONER 2009 Annual Report