LEGAL SERVICES COMMISSIONER ANNUAL REPORT 2012

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Disciplinary complaintsComplaints that raise allegations aboutthe professional conduct of a lawyerand are of a character that do not seemcapable or appropriate for negotiatedresolution are referred to thecomplaint handlers for investigation.The purpose of an investigation isto determine whether a lawyer hasengaged in professional misconduct orunsatisfactory professional conduct.Upon receiving a complaint, thecomplaint handlers determine thescope of the problem and extent of theinvestigation. An investigations planis formalised and discussed, whichoutlines the steps that are to be taken.This plan is revised as the investigationprogresses. The complaint handlersuse a number of techniques forinvestigating complaints, including:• reviewing the legal file or relateddocuments• interviewing the consumer,lawyer and other witnesses• seeking a written explanation fromthe lawyer in response to the issuesraised in the complaint• visiting the lawyer’s office to identifypotential problems in the legalpractice• obtaining copies of documents fromcourts or tribunals• conducting searches of the LandTitles Office, company records,electoral register and other sources• attending court or tribunal on relatedmatters, and• seeking information from otherlegal regulators, for example theLSB and LIV.From the evidence gathered, thecomplaint handlers may determinethat the lawyer has not engaged inconduct that amounts to a disciplinarybreach. Where this occurs, thecomplaint handlers will advise theconsumer of the outcome and mayalso provide guidance to the lawyerto help them improve their practicesand avoid further problems fromoccurring. Where the complainthandlers determine that a disciplinarybreach has occurred, then the matterwill be referred to the Commissionerwho will decide whether the conductamounts to unsatisfactory professionalconduct or professional misconduct.If the Commissioner determines thatthe conduct amounts to professionalmisconduct, then the LSC will make anapplication to VCAT. For unsatisfactoryprofessional conduct matters, theCommissioner may apply to VCAT foran order against the lawyer or mayinstead take an alternative disciplinaryaction against the lawyerThe LSC commenced 236investigations in the reporting year,compared with 449 in 2010-11 and 749in 2010-09. This decrease is due toa change in the way complaints arehandled by the LSC. Previously, theLSC formally investigated complaintsthat contained service relatedissues. In many of these cases, thealleged conduct would not amountto a disciplinary breach and wouldoften result in the complaint beingdismissed by the LSC, or would beformally investigated when this wasunsuitable. These complaints are nowreferred to the RRT for resolution.Now, the LSC only launches a formalinvestigation where it is evident that thecomplaint raises allegations of seriousdisciplinary breaches.Merging of the InvestigationsTeam and Litigation TeamIn the 2010-11 reporting period, theLSC established an InvestigationsTeam to help streamline theinvestigations process across theoffice, and a specialist LitigationTeam allowing for a more focusedand consistent approach whenfinalising investigations likely toresult in a prosecution. The creationof these specialist investigationand litigation teams proved to bea successful initiative in 2010-11and was a contributing factor to theoffice achieving a reduction in thenumber of outstanding complaintsand finalising disciplinary mattersin a timely manner. However, itbecame evident that specialisedteams restricted the diversity of workundertaken by individual complainthandlers and confined the expertise toselect individuals. The Commissionerfelt there was a need for individualcomplaint handlers to be involved inany litigation that was commencedfollowing the investigation of adisciplinary complaint. Accordingly,during 2011-12, the InvestigationsTeam and Litigation Team weremerged to form two Complaintsand Investigations Teams, whichare comprised of staff who areskilled to deal with both investigationsand any litigation arising froma disciplinary complaint.Activities of the Complaintsand Investigations TeamsDuring the reporting period, staff in theComplaints and Investigations Teamscontinued to meet with consumers andpractitioners to better understand thepositions of the parties and thereforebetter exercise their regulatory andeducative roles. As the file loads ofcomplaint handlers have reduced it hasmeant that although these teams nowdeal primarily with the more seriousdisciplinary complaints, they are ableto spend more time meeting withconsumers, legal practitioners, otherwitnesses concerned, as well as othergovernment bodies some of whomhave overlapping responsibilities; forexample, Victoria police and interstateregulators. Staff in the Complaints andInvestigations Teams regard the linksformed with other regulatory bodiesas invaluable.14 Legal Services COMMISSIONER Annual Report 2012
The Complaints and InvestigationsTeams recruited a number of staffwho are not legal practitioners butwho have extensive experience inother fields, such as experience inthe Australian Taxation Office andthe Federal Police. This enhancesthe breadth of experience of theteams as a whole. Staff have alsobeen dealing with more telephoneenquiries which often provide a morecomprehensive and timely servicethan formal correspondence.New Investigations andRegulation Team in theRegulation and Complaints UnitThe Commissioner implemented arestructure in the reporting periodto align the LSC and LSB with thestructure of the proposed nationallaw. This resulted in the establishmentof a new team in the Complaints andInvestigations Unit of the LSC, knownas the Investigations and RegulationTeam. This team is responsible forcarrying out work under the regulatorypowers of the LSB such as breachesof the Act, regulations and rules, andworking with the staff of the LIV andBar, who deal with non-compliancematters as delegates of the LSB.These functions were previouslyperformed by the Legal and PolicyTeam, which was disbanded throughthe restructure process. Most noncompliancematters overlap withor relate to the LSC’s complaintshandling function. It therefore seemedappropriate to position this team withinthe Complaints and InvestigationsUnit of the LSC. This placementhas enhanced the ability of LSB andLSC staff to carry out a coordinatedapproach in respect of a numberof matters involving IncorporatedLegal Practices (ILPs) and individuallawyers. The case of LSC v DanielOldham (see case study on page 22)is an example of a combined approachwhich led to a single joint hearing,where staff from both the LSC andLSB also worked with staff from theLIV in preparing and presenting thecase. This new initiative has enabledinvestigations and litigation to beconducted efficiently and ensure themost appropriate action is taken inanygiven matter, taking into accountthe wide range of regulatory powers.The activities of the Investigations andRegulation Team is summarised in the2011-12 Annual Report of the LegalServices Board, which is available on theBoard’s website at www.lsb.vic.gov.auDisciplinary complaint outcomesIn 2011-12, the LSC formed theview that VCAT was likely to find thelawyer guilty of a disciplinary breachin 117 matters. In 164 cases, theLSC formed the view that VCAT wasunlikely to find the lawyer guilty of adisciplinary breach. In 366 matters,the consumer was satisfied with thelawyer’s explanation and withdrewthe complaint. This is compared with333 in 2010-11 and 211 in 2010-09.This increase is due to the efforts of theRRT where if the consumer is satisfiedwith the outcome of the matter, whichin most cases has been achievedwith the assistance of RRT staff, thenthey may choose to not pursue theircomplaint further against the lawyer.Where this outcome is not achieved,or in other specific situations, theLSC may however form the view thatno further investigation is required.This was the case in 193 matterscompared with 172 in 2010-11.Figure 6 shows the outcomes ofdisciplinary complaints for 2011-12and previous years.Figure 6 Disciplinary complaint outcomesDisciplinary complaint outcomes 2009-10 2010-11 2011-12LSC formed view that VCAT likely to find lawyer guilty of a disciplinary breach 64 (7%) 152 (11%) 117 (9%)LSC formed view that VCAT unlikely to find lawyer guilty of a disciplinary breach 254 (28%) 338 (26%) 164 (13%)Lawyer Struck Off – not in the public interest (no further action) s4.4.12B N/A N/A 22 (2%)Complainant satisfied with lawyer’s explanation & withdrew complaint 211 (23%) 333 (25%) 366 (29%)Complaint made out of time 5 (0.5%) 14 (1%) 18 (2%)Complaint made before (or subject of another complaint) 18 (2%) 15 (1%) 13 (1%)Complainant failed to provide further information when requested 75 (8%) 48 (4%) 30 (3%)Complaint lacked legal substance etc (eg. alleged conduct was not inappropriate) 104 (11%) 157 (12%) 165 (13%)Complaint about lawyer/client relationship and duties but made by third party(eg. not the client)LSC formed the view that complaint required no further investigation (eg. lawyernot obliged to accept instructions from complainant)Complaint not one that the LSC has power to deal with(eg. involves question of law and therefore should be dealt with by a court)26 (3%) 36 (3%) 51 (4%)67 (7%) 172 (13%) 193 (16%)89 (10%) 47 (4%) 68 (6%)Lawyer deceased 2 (0.2%) 1 (0.1%) 0Lawyer ill health or not located 8 (1%) 2 (0.2%) 2 (0.2%)Closed due to ongoing proceedings N/A 7 (0.5%) 20 (2%)Total 923 1,322 1,229* Please note that withdrawing a complaint is seen by the LSC as a perfectly valid means of concluding a complaint if the consumer is satisfied withthe outcome and if the LSC accepts that a fair and practical result was achieved.Legal Services COMMISSIONER Annual Report 2012 15
Page 3: contentsAbout the Legal Services Co
Page 7 and 8: Education and OutreachIn accordance
Page 9 and 10: chapter 01REPORT OF OPERATIONSThis
Page 11 and 12: Figure 4 Top six issues that featur
Page 13 and 14: Overcharging complaint resolved wit
Page 15: An explanation and apology resolved
Page 22 and 23: Alternative disciplinary actionsWhe
Page 24 and 25: Oldham v Law Institute of Victoria
Page 26 and 27: Complaints outstandingThere were 57
Page 28 and 29: Educating consumers of legal servic
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Page 37 and 38: chapter 03governanceFreedom of Info
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2 Income from transactions2012 2011
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4 Cash and deposits2012 2011$ $(a)
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7 Plant and equipment CONTINUEDCOMP
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Figure 43 Disciplinary applications
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LEGAL SERVICES COMMISSIONER ANNUAL REPORT 2012

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