LSB December 2021 HR

FROM THE CONDUCT COMMISSIONER
Overview of the
LPCC Annual Report
GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER
recently presented my annual report for
I the financial year ended 30 June 2021
to the Attorney-General and the Chief
Justice. Once the Attorney has tabled it
in Parliament, it will be available on my
website (at lpcc.sa.gov.au).
In the expectation that not everyone
in the profession will spend as much
time as they should reading my annual
report, I thought I should just take this
opportunity to mention a few things that
are highlighted in the report that are in my
view particularly relevant and important.
From 1 November 2020, complainants
have had to pay a fee of $110 (including
GST) before I will consider their
complaint. There are though a number
of circumstances in which I will, or may,
waive the payment of that fee.
The introduction of that fee paying
regime has in my view been the main,
if not the sole, reason for complaint
numbers reducing from over 500 on
average per year to just over 400 in 2020-
21. And I now expect complaint numbers
from now on will be less than 400 per year.
The reduction in complaint numbers
has enabled me to reduce my staff
numbers without impacting too much on
the way in which we deal with complaints.
The expense incurred in running my office
has reduced from $4.3m in 2017-18 to
just under $4m in 2020-21, and my budget
for this current financial year is just over
$3.6m.
During 2020-21, I made 45 findings
of misconduct – 33 of unsatisfactory
professional conduct and 12 of
professional misconduct. I also laid 2
charges against 1 practitioner in the Legal
Practitioners Disciplinary Tribunal.
That number of findings of
misconduct is considerably higher than
in previous years. In 2019-20, I made 31
such findings and also laid charges against
4 practitioners). In 2018-19 it was 22
findings and 8 charges, and in 2017-18 it
was 21 findings and 7 charges.
A significant contributor to the
increased number of misconduct
findings was my findings in relation to
practitioners who had failed to comply
with their costs disclosure obligations
under Schedule 3 of the Legal Practitioners
Act (Act). There were 8 such findings
during 2020-21. I refer the profession to
my article about those obligations and the
way I view them in the April 2020 edition
of the Bulletin.
It is also perhaps worth me
summarising the conduct that resulted in
my other misconduct findings in 2020-21:
• a lack of courtesy in correspondence;
• failing to pay superannuation for the
firm’s employees;
• using a costs agreement that was legally
incorrect and potentially misleading
in relation to the firm’s entitlement
to increase its costs if the client
complained about its fees or asked for
an itemised account;
• having a conflict when advising a
client who had a number of different
capacities in relation to a deceased
estate;
• misleading a client as to whether a
judgment debt had been obtained in
recovery proceedings;
• threatening action against another
party without having instructions to
do so;
• failing to act on a client’s instructions
in a sufficiently timely fashion, which
led to the client terminating the firm’s
instructions – and then billing the
client for the work that was done
(despite it being of no use to the
client) and filing a credit default entry
when the bill wasn’t paid;
• failing to administer and distribute a
deceased estate in a timely fashion;
• providing mortgage financing services
in contravention of the Act;
• commencing to practice as an
Incorporated Legal Practice without
giving notices required under the Act;
• acting for two executors of an estate,
and then acting for one against the
other despite then having confidential
information about the other;
• having direct contact with the client of
another practitioner, in breach of the
ASCRs;
• allowing a client to view certain
documents despite a court order
requiring them to be destroyed;
• preparing a revocation of a Power of
Attorney and a new Power of Attorney
without having obtained instructions
direct from the client to do so or
assessing her capacity;
• misinterpreting a Will, maintaining that
incorrect interpretation despite viewing
advice to the contrary, and charging for
that incorrect work;
• charging a fixed fee up front for certain
work that was to be done, and then not
doing it;
• obtaining a report for a client without
instructions to do so, and without first
obtaining a fee estimate;
• failing to resolve an outstanding trust
account balance within a reasonable
time;
• failing to progress a client’s claim
within a reasonable time;
• failing to comply with undertakings
given to the Law Society as part of a
“low income fee earner” application;
• failing to comply with Court orders
and to appear at hearings;
• failing to comply with various
employment obligations;
• failing to comply with my orders;
• in relation to an estate of which the
practitioner was the executor, charging
fees without being authorised to do so,
charging for travel expenses without
being entitled to do so, breaching
fiduciary duties to the beneficiaries,
and failing to maintain adequate
records of instructions;
• backdating a letter, misleading the
other party about it, and blaming a
junior employee for the “need” to
do so;
• failing to maintain a trust account
despite receiving trust money; and
• failing to administer an estate in a
timely fashion. B
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THE BULLETIN December 2021