Annual Report 2011 - Legal Services Commissioner

Disciplinary complaints
Complaints that raise allegations
about the professional conduct of a
lawyer and are of a character that
do not seem capable or appropriate
for negotiated resolution are
referred to the Investigations Team
for investigation. The purpose of an
investigation is to determine whether
a lawyer has engaged in professional
misconduct or unsatisfactory
professional conduct. Upon receiving
a complaint, the Investigations Team
determines the scope of the problem
and extent of the investigation. An
investigations plan is formalised
and discussed, which outlines the
steps that are to be taken. This
plan is revised as the investigation
progresses. The Investigations Team
uses a number of techniques for
investigating complaints, including:
• reviewing the legal file or related
documents
• interviewing the complainant,
lawyer and other witnesses
• seeking a written explanation from
the lawyer in response to the issues
raised in the complaint
• visiting the lawyer’s office to
identify potential problems in the
legal practice
• obtaining copies of documents
from courts or tribunals
• conducting searches of the Land
Titles Office, company records,
electoral register and other sources
• attending court or tribunal on
related matters, and
• seeking information from other
legal regulators, for example the
LSB and LIV.
From the evidence gathered, the
Investigations Team may determine
that the lawyer has not engaged in
conduct that amounts to a disciplinary
breach. Where this occurs, the
Investigations Team will advise the
complainant of the outcome and may
also provide guidance to the lawyer
to help them improve their practices
and avoid further problems from
occurring. Where the Investigations
Team determines that a disciplinary
breach has occurred, then the matter
will be referred to the Commissioner
who will decide whether the conduct
amounts to unsatisfactory professional
conduct or professional misconduct.
If the Commissioner determines that
the conduct amounts to professional
misconduct, then the LSC will make an
application to VCAT. For unsatisfactory
professional conduct matters, the
Commissioner may apply to VCAT for
an order against the lawyer or may
instead take an alternative disciplinary
action against the lawyer.
The LSC conducted 449 investigations
in the reporting year, compared with
749 in 2009-10. This decrease is due
to a change in the way complaints are
handled by the LSC. Previously, the
LSC formally investigated complaints
that contained service related issues.
In many cases, the alleged conduct
would not amount to a disciplinary
breach and would often result in the
complaint being dismissed by the
LSC or would be formally investigated
when this was unsuitable. These
complaints are now referred to the
RRT for resolution. Now, the LSC
only launches a formal investigation
where it is evident that the complaint
raises allegations of serious
disciplinary breaches.
Disciplinary complaint outcomes
In 2010-11, the LSC formed the view
that VCAT was likely to find the lawyer
guilty of a disciplinary breach in 152
matters. In 338 cases, the LSC formed
the view that VCAT was unlikely to
find the lawyer guilty of a disciplinary
breach. In 333 matters, the consumer
was satisfied with their outcome and
therefore withdrew their complaint.
This is compared with 211 in 2009-10.
This increase is due to the efforts of
the RRT where if the complainant
is satisfied with the outcome of the
matter, then they may choose to
withdraw their complaint against the
lawyer. Where the LSC is unable to
resolve the matter, the LSC may form
the view that no further investigation
is required. This was the case in 172
matters compared with 67 in 2009-10.
Figure 6 shows the outcomes of
disciplinary complaints for 2010-11
and previous years.
12 Legal Services COMMISSIONER Annual Report 2011