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Professional Discipline for Legal Professionals in Queensland

 By Zac Reinke | 10 May 2024

Legal professionals in Queensland are held to high professional standards and are subject to a broad range of obligations imposed on them, primarily, by the Legal Profession Act and the Legal Profession Regulation; as well as guidelines like the Australian Solicitors Conduct Rules.

Alleged breaches of these standards can result in complaints being made by judicial members, other solicitors, and clients. These allegations are often made about conduct occurring during practice such as communications with clients and billing; but can also extend to conduct outside of practice.

The purpose of this article is to take you through the Queensland scheme with a primary focus on the functions of the by Queensland Legal Services Regulator, the Legal Services Commission.

The Queensland Scheme

In Queensland, the professional standards scheme for Lawyers is broadly broken up into the Legal Profession Act 2007 (the Act), the Legal Profession Regulation 2017, the Solicitors Conduct Rules 2012, and various cases and decisions.

Who is Who in the Act?

Division 2 of the Act contains a number of definitions in relation to admitted persons in Queensland. Broadly those are:

  • Australian Lawyers – who are persons admitted to the legal profession in Australia;
  • Local Lawyers – who are persons admitted to the legal profession under the Act, regardless of whether they are also admitted elsewhere in Australia;
  • Interstate Lawyers – who are persons admitted to the legal profession outside of Queensland;
  • Australian Legal Practitioners – who are Australian Lawyers who also holds a current local or interstate practising certificate;
  • Local Legal Practitioners – who are Australian Lawyers who holds a current local practising certificate; and,
  • Interstate Legal Practitioners – who are Australian Lawyers who hold a current interstate practising certificate, but not a local practising certificate.[1]

Another relevant term is “unlawful operator”. These are individuals who are pursued by the Legal Services Commission for practising in Queensland without a valid practising certificate. Unlawful operators may have a legal qualification (i.e., a university degree), and some may even be Australian Lawyers. However, they are marked by their lack of entitlement to engage in legal practice in Queensland.

The Legal Services Commission, and the Queensland Civil and Administrative Tribunal, takes unlawful operation very seriously. Punishments for engaging in such conduct can range from a fine, to imprisonment.[2]

The Act is a large piece of legislation and contains provisions that relate to the conduct of legal practice generally, trust accounting, costs disclosure and billing, and importantly (for this article), complaints and discipline.

The Regulator – Queensland Legal Services Commissioner

The Legal Services Commission is an independent statutory body which has the power to regulate the legal profession in Queensland. It was established in 2004 and its powers are pursuant to the Legal Profession Act 2007.

In Queensland, it works alongside the Bar Association of Queensland and the Queensland Law Society who, as regulatory authorities, also perform certain functions under the Act – such as the issuing and regulation of practising certificate and the setting of legal profession rules.

However, it is the Legal Services Commissioner (currently, Commissioner Megan Mahon)[3] who has the sole authority to prosecute lawyers or legal practitioners in relation to professional conduct matters. The Commission also investigates and prosecutes individuals who engage in “unlawful operation”, which is a criminal offence under the Act.

Powers of the Legal Services Commission

Chapter 4 of the Act contains the majority of the provisions relating to complaints and investigations made under the Act. They include powers to commence and dismiss investigations, including “own motion investigations”, powers to compel a respondent to provide the Commission with certain documents or information, and even powers to compel third parties to provide the Commission with documents or information (i.e., bank records).

Section 435, provides the Commissioner with the power to pursue an ‘investigation matter’[4] on the basis of the Commissioner’s own initiative. This includes investigations based on information which might come from the media, or may be brought to the Commission’s attention by way other than a complaint. However, it can also include the continuation of an investigation where a complainant has withdrawn the complaint.

What’s being investigated

Pursuant to section 436 of the Act, the Commissioner is obliged to investigate a complaint that the Commissioner believes is capable of amounting to either unsatisfactory professional conduct or professional misconduct.

Chapter 4 of the Act sets out two categories of “misconduct”. In level of seriousness those are unsatisfactory professional conduct, and professional misconduct.

Unsatisfactory professional conduct is defined in section 418 of the Act and is defined as:

Conduct of an Australian legal practitioner happening 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 Australian legal practitioner.[5]

Professional misconduct is defined by section 419 of the Act as including:

Unsatisfactory professional conduct of an Australian legal practitioner, if that conduct involves a substantial or consistent failure to reach of keep a reasonable standard of competence and diligence.

And

Conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise … that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.[6]

Examples of the kind of conduct which can amount to either unsatisfactory professional conduct or professional misconduct are described in section 420 of the Act. They include:

  • Charging excessive legal costs;[7]
  • Being convicted for a serious offence, a tax offence, or an offence involving dishonesty;[8] and
  • Becoming insolvent under administration. 

Complaints

An entity may make a complaint in the approved form to the Commissioner about the conduct of an Australian legal practitioner, law practice employee, or unlawful operator. That entity can be, for example, a client (or former client) of the law practice or a relevant regulatory authority (such as the Queensland Law society).

A complaint that is made in the approved form must identify the complaint, the person about whom the complaint is being made (if possible) and describe the conduct that is being complained about. While the Act prescribes an approved form, the Commissioner does have the power to accept a complaint that is made in writing, but in a form other than the approved form.

Limitation Period

Section 430 of the Act provides a limitation period for complaints to the Commissioner. Pursuant to that section, where a complaint is received more than three years after the conduct happened, the Commissioner is empowered to dismiss the complaint unless they decide that:

  • It is just and fair to deal with the complaint, having regard to the extent of and reasons for the delay; or
  • If the complaint involves conduct of an Australian legal practitioner, or of a law practice employee, which may amount to professional misconduct.[9]

The start of the “limitation period” commences on the last day that the conduct happened.[10]

Assessing a Complaint

Once a complaint is accepted by the Commissioner it undergoes an “assessment” phase. During this period of a complaint, it will be considered by the Commission to determine if the conduct that is complained about warrants an investigation.

To make this determination, the Commission might ask a complainant to provide further information, including by way of a notice under section 431 of the Act – which can require a complainant to:

  • Give further information about the complaint;
  • Verify the complaint, or any further information, by statutory
  • declaration; and/or
  • Sign a waiver of legal professional privilege or the duty of
  • confidentiality over their matter.

Once the assessment of a complaint is finalised, it will either be summarily dismissed by the Commissioner, or an investigation will be commenced.

Delay

It is important to note that the Commissioner can delay dealing with a complaint in certain prescribed circumstances. In this case, the assessment process will be prolonged until such a time as the matter is progressed or dismissed.

An Investigation

For practitioners, the first time that they will be made aware of the existence of a complaint by the Commission is upon the issuing of a notice under section 437 of the Act. The contents of that notice are stipulated by the Act to ensure that the respondent is provided with the necessary details to, if they desire, provide a response to the Commission.

An investigation typically takes between six and nine months, however for serious or complex investigations, this time period can be significantly increased. The investigation will be conducted by an investigator (a lawyer) within the Commission.

It is during this stage of a matter that the Commissioner will ask the respondent to provide a response, along with any supporting material, to the Commission for consideration. Note that while the Commissioner does have coercive powers to demand a response from a practitioner, a notice under section 437 is only a request for a response.

It is also during this stage of a matter that the Commissioner could exercise powers under section 543 of the Act to require the lawyer, or another party, to provide the Commission with documents or written information. It is an offence to not comply with a section 543 notice without a reasonable excuse. 

Where a practitioner chooses to provide a response to the Commission, it must be considered by them before a decision is made about whether or not to make a discipline application relating to the complaint or investigation matter.

Once an investigation is finished, the investigator will prepare a report to the Commissioner.

Respondents to investigations commenced by the Commission will typically be issued with a copy of the Commission “Information for Respondents” brochure which is also available on their website.[11]

A Decision

Following an investigation, the Commissioner has, essentially, two decisions which can be made:

  1. A decision pursuant to section 447 of the Act to commence a proceeding before a disciplinary body under Chapter 4; or
  2. A decision pursuant to section 448 of the Act to dismiss the complaint or investigation matter because either;
    1. There is no reasonable likelihood of a finding of either unsatisfactory professional conduct or professional misconduct against the Australian legal practitioner; or
    2. It is in the public interest to dismiss the matter.

Whichever decision is made by the Commissioner, a record of the decision must be created, together with the reasons for that decision. A copy of the Legal Services Commission’s Discipline Application Guidelines is available on their website.[12]

It bears noting that the public interest considerations about whether to commence a disciplinary action include considerations of the length, time, and expense a disciplinary proceeding might take. In circumstances where the practitioner has apologised to the client, re-done or offered to re-do the work, waived fees, or made efforts to remedy the faults in the service which has been provided/or learn from the mistakes – the Commission may be minded to dismiss the complaint on the basis that it would not be in the public interest to initiate disciplinary proceedings.

Key Take Aways and Conclusion

Practitioners who receive a notice from the LSC should be mindful in the first instance that the publishing of a matter is not an accusation, but is a request from the Commission for the practitioner’s side of the story.

In many cases, a full and frank response from the Commission will allow the investigator to properly assess the merit of the complaint which can result in the matter being dismissed by the Commissioner at an early stage.

It is essential that practitioners be mindful of their obligation in Rule 43 of the Australian Solicitors Conduct Rules to be open and frank in any dealings with a regulatory authority, as well as to respond within a reasonable time to any requirement of the regulatory authority for comments or information in relation to the regulator’s investigation.[13]


Zac Reinke is a Senior Associate at Aitken Whyte Lawyers, a law practice based in Brisbane, Queensland. Zac’s practice experience is broad but is rooted in the criminal and regulatory spheres. He regularly appears in courts throughout Queensland for clients charged with both State and Commonwealth criminal offences, as well as acting for both companies and individuals facing prosecutions brought by regulators. Zac believes that communication with his clients is key, and his down-to-earth communication style and lack of ego ensures that he can establish strong connections with his clients and their families. You can read more about Zac here: https://www.awbrisbanelawyers.com.au/team/zachary-reinke/


FOOTNOTES

[1] Legal Profession Act 2012 (Qld) Division 2.

[2] See Arulogan v Legal Services Commissioner [2023] QDC 207; See generally Legal Services Commissioner v Raghoobar [2023] QCA 191 at [19] for conduct which amounts to “engaging in legal practice” contrary to s 24 of the Legal Profession Act.

[4] See Legal Profession Act 2012 (Qld) schedule 2 for definition.

[5] Ibid s 418.

[6] Ibid s 419.

[7] See Legal Services Commissioner v Chapman [2023] QCAT 357.

[8] See Legal Services Commissioner v Desacola [2023] QCAT 271.

[9] Legal Profession Act 2012 (Qld) s 430.

[10] Ibid s 430(4).

[13] Particularly when responding to a notice pursuant to s 443 of the Legal Profession Act 2012 where a failure to do so can amount to professional misconduct. See Legal Services Commissioner v Munt [2023] QCAT 479.


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