Annual Report 2008-09 - Legal Services Commissioner

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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
Chapter TWO Handling complaints A mixed complaint is a complaint involving both a disciplinary complaint and civil complaint. Case Study Mixed Complaint Lawyer refused to hand over documents to client’s new lawyer Francesca was involved in Supreme Court proceedings and she retained a lawyer to represent her in those proceedings. Francesca later became unhappy with how the lawyer was handling her case. Francesca was also concerned that the lawyer had not given her any information about how her legal costs would be calculated. Francesca therefore sought alternate representation. Francesca’s new lawyer wrote a number of letters and made a number of telephone calls to her former lawyer requesting Francesca’s file. However Francesca’s former lawyer delayed in responding. When Francesca’s former lawyer finally responded, he said that he would not hand over Francesca’s file until Francesca paid the legal costs she had incurred ($5000). Francesca’s new lawyer really needed her file to represent her in the Supreme Court proceedings. After many unsuccessful attempts to obtain the file, Francesca’s new lawyer made a complaint to the Legal Services Commissioner on Francesca’s behalf about the former lawyer’s conduct. The Commissioner found that Francesca’s former lawyer should have acted promptly in relation to the request for the file. This was particularly important because Francesca was involved in Supreme Court proceedings. “When Francesca’s former lawyer finally responded, he said that he would not hand over Francesca’s file until Francesca paid the legal costs she had incurred ($5000).” The Commissioner also found that Francesca’s former lawyer should have given her information about how her legal costs would be calculated. In failing to do these things, the Commissioner found that Francesca’s former lawyer was likely to be found guilty of a disciplinary breach. However instead of referring the matter to the Tribunal, the Commissioner required Francesca’s former lawyer, with the consent of the former lawyer, to waive his bill for $5000 as compensation to Francesca. Legal Services COMMISSIONER 2009 Annual Report 11
Page 1 and 2: A N N UA L R E P O R T 2009
Page 3 and 4: Table of Contents Chapter 1 - About
Page 5 and 6: Our Mission: The Legal Services Com
Page 7 and 8: Chapter ONE About the Legal Service
Page 9 and 10: Chapter TWO Handling complaints Obj
Page 11: Chapter TWO Handling complaints A c
Page 15 and 16: Chapter TWO Handling complaints Com
Page 17 and 18: Chapter TWO Handling complaints Our
Page 19 and 20: Chapter TWO Handling complaints Dis
Page 21 and 22: Chapter TWO Handling complaints Cas
Page 23 and 24: Chapter TWO Handling complaints •
Page 25 and 26: Chapter THREE Educating the legal p
Page 31 and 32: Chapter FOUR Educating the communit
Page 37 and 38: Chapter FIVE Projects and research
Page 43 and 44: Chapter SIX Human Resources Objecti
Page 45 and 46: Chapter SIX Human Resources Figure:
Page 47 and 48: Chapter SIX Human Resources Organis
Page 49 and 50: Chapter SIX Human Resources Table:
Page 51 and 52: Chapter SIX Human Resources Human R
Page 53 and 54: Chapter seven Governance Objective:
Page 55 and 56: Chapter SEVEN Governance National C
Page 57 and 58: Chapter SEVEN Governance Office-Bas
Page 59 and 60: Chapter SEVEN Governance Indicator
Page 61 and 62: Chapter EIGHT FINANCIAL STATEMENTS
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Chapter EIGHT Financial Statements
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APPENDICES Introduction to Complain
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APPENDICES Complaints under the Leg
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APPENDICES Complaints and Disputes
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APPENDICES Delegations Date of Dele
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APPENDICES Delegations Date of Dele
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APPENDICES Delegations 4.2 Delegati
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APPENDICES Disclosure Index DISCLOS
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APPENDICES Disclosure Index Legisla
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Level 9, 330 Collins Street MELBOUR
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Annual Report 2008-09 - Legal Services Commissioner

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