imperfect practice under the legal profession act … · in this way, a regulator is seen as a ......

IMPERFECT PRACTICE UNDER THE LEGAL PROFESSION ACT 2004 (Qld)

The Legal Profession Act 2004 (Qld) ('the Act') brings greater consistency into many aspects of lawyer regulation. In doing so, it also forces the most dramatic change for Queensland banisters, who are subject to statutory regulation for the first time. The Bar Association of Queensland gains regulatory powers and duties equivalent to those retained by the Queensland Law Society, which in turn loses its powers over complaints and discipline. Although the Law Society has publicly criticised its loss of these powers, a close reading of the new Act suggests that the Law Society's practical control over the right to practise may in fact be greater than before.

There are also problems with the Act's measures for lawyer regulation. While they are designed to bring greater national uniformity into state disciplinary systems, in at least one and surprising way, the reforms depart from the national Model ~aws. ' This leads to unnecessary complexity. Other parts of the Act attempt to simply transplant pre-existing provisions into the new regime -- with clumsy, and regressive, results. Ayres and Braithwaite, for instance, have discussed the merits of an enforcement pyramid.2 To be fully effective such a pyramid must give the regulator a wide range of enforcement powers. These powers range, gradually and seamlessly, from the power to persuade self- regulation (a power represented at the base of the pyramid because it should be used most often and at first instance), rising to enforced self-regulation, discretionary punishment and finally to non-discretionary punishment (used rarely and so at the apex of the pyramid). In this way, a regulator is seen as a 'benign big gun' who 'speaks softly while carrying a big stick'.3 An examination of the changes to the regulation of the legal profession in Queensland suggests enforcement powers are now less pyramidal in structure than before.

* BA, LLB (Monash), LLM (UQ); Lawyer (Qld); Barrister and Solicitor (Vic); Lecturer in Law; Fellow, Centre for Public, International and Comparative Law; TC Beime School of Law, The University of Queensland. My thanks to Reid Mortensen for comments on an earlier draft.

Standing Committee of Attorneys-General, Legal Profession - Model Laws Project: Model Provisions (2004) Attorney-General's Department <hnp:llwww.ag.gov.au/agd/www/Agdhome.nsf/Page/RWP4B55623E 1 E4CF96DCA256E85000958EO?OpenD ocument> at 2 1 September 2004 ('Model Laws').

Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992) 35. h id 40.

412 Imperfect Practice under the Legal Profession Act 2004 (Qld)

The publication of 'ethical codes', or codes of conduct, is often considered one of the hallmarks of a profession. For a number of years the Bar Association of Queensland published such professional conduct rules as the Queensland Barristers ' Rules and the Queensland Law Society as the Solicitors ' Handbook. While there was no procedure for barristers' professional conduct rules to be given legal effect, the Queensland Law Society Act 1952 (Qld) did provide for the Law Society to make rules with the status of subordinate legislation.4 The Solicitors Handbook was a compilation of rules with the status of subordinate legislation, passed according to the procedure set out in the Act, together with rulings of the Council of the Law Society which had not become subordinate legislation.

In August 2002 the Council of the Law Society passed such a ruling, which attempted to place a cap on the amount of fees recoverable in 'no win, no fee' personal injury matters and which warned solicitors they may be liable to disciplinary action if they did not comply. A firm of solicitors successfully challenged the legal validity of the ruling, with Helman J declaring that the ruling was of no legal effect as the Law Society had not taken the necessary steps for it to become subordinate legislation. Therefore, it was hypothetical to determine whether a failure to comply with the ruling could amount to professional misc~nduct.~

The Legal Profession Act 2004 (Qld) seems to confirm that such rulings will be of no legal effect unless subsequently passed as subordinate legislation.6 Instead the Act provides for both the Bar Association and Law Society to recommend legal profession rules and administration rules.7 Before either body can recommend a legal profession rule to the Minister, it must first send a copy of the proposed rule to the ~ i n i s t e r . ~ Then, as in New South ~ a l e s , ~ it must publicise the proposal in daily newspapers, allowing 21 days for public comment.1° The rule is then made by the overn nor-in-~ouncil." No similar public consultation is required in victoria.12 While these reforms give legal force to barristers' professional conduct rules for the first time, the degree of control to be exercised by the Minister lessens the sense of professional self-regulation and control of professional bodies over their members.13 The Attorney-General has

Queensland Law Society Act 1952 (Qld) s 5A. Holland v Queensland Law Society Inc [2003] QSC 327 (Unreported, Helman J, 26 September 2003) [14]. Explanatory Memorandum, Legal Profession Bill 2004 (Qld) 4. The Act also refers to barristers' rules, incorporated legal practice rules, indemnity rules and solicitors' rules:

Legal Profession Act 2004 (Qld) s 214. "egal ~rofession Act 2004 (Qld) s 222(2). Legal Profession Act I987 (NSW) s 57CC.

lo Legal Profession Act 2004 (Qld) s 222. ' I Legal Profession Act 2004 (Qld) s 2 15. l2 As Legal Practice Act 1996 (Vic) s 81 excludes the rules fiom the scrutiny required by Subordinate Legislation Act 1994 (Vic) although rules can be disallowed: Legal Practice Act 1996 (Vic) s 77. l 3 Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2003,5245 (Lawrence Springborg).

(2004) 23 The University of Queensland Law Journal 413

expressed some pleasure in being able to recommend legal profession rules to the Governor for the first time, even rules which the professional body may consider unnecessary.14 The Act does not spell out the intended ambit of legal profession rules except to say they are designed to 'promote the maintenance of high standards of professional conduct'15 and breach can lead to discipline.16

It is interesting to compare the transitional provisions applying to barristers and solicitors. The solicitors7 branch of the profession is the much larger sector of the profession and therefore the need for legal profession rules would seem more pressing than for barristers. This may partly explain why the Law Society has had the power for over 70 years to formulate professional conduct rules and then sponsor their passage into subordinate legislation. However, no legal profession rules under the Act have as yet been passed for Queensland solicitors. Section 610(1) of the Act does provide for 'rules of the law society7 to continue in force until 1 July 2005'~ and at first glance this section seems to construe 'rules' more broadly than simply rules made under section 5A and 46 of the Queensland Law Society Act 1952 (Qld).18 However such an interpretation is discounted by s 610(2) which suggests that only those rules with the status of subordinate legislation remain valid. This means that those sections of the Solicitors Handbook which never had the status of subordinate legislation are redundant, and Queensland solicitors remain without legal profession rules.

In stark contrast, even though the Bar Association's professional conduct rules never had the force of law as subordinate legislation, the Act expressly provides that, until 18 September 2004,19 the first set of legal profession rules for barristers is a codification of the Bar Association's pre-existing Queensland Barristers' ~u l e s .~ ' As the Act foreshadowed, the Legal Profession (Barristers) Rule 2004 came into force on 1 July 2004 and largely reproduces in full the Bar Association's rules as in force on 18 June 2004.~' So barristers presently have a more complete set of legal profession rules than solicitor^.^^ Solicitors now have only those rules which previously had the status of subordinate legislation and await the passing of a more comprehensive set of legal profession rules, which the Act would appear to contemplate could take up to 12 months to bring into force.

l4 Queensland, Parliamentary Debates, Legislative Assembly, 18 May 2004, 1127 (Rod Welford). ' Legal Profession Act 2004 (Qld) s 2 12(a). l 6 Legal Profession Act 2004 (Qld) s 223(2), although breach of an administration rule cannot, unless compliance is in turn required by a legal profession rule: Legal Profession Act 2004 (Qld) s 228(3), s 225(2). l 7 Legal Profession Act 2004 (Qld) s 610(7). Reflecting the intention, as stated in the heading of Division 6, that the continuation of these rules be only transitional. ls Legal Profession Act 2004 (Qld) s 610(1). l9 Legal Profession Act 2004 (Qld) 61 1(3), being three months from when s 61 1 came into force. 20 Legal Profession Act 2004 (Qld) s 61 l(2). The Bar Association and Law Society can also make 'administration rules' in relation to types of practising certificates, mandatory courses of study for the grant of a practising certificate and indemnity insurance: Legal Profession Act 2004 (Qld) s 226(2).

Legal Profession (Barristers) Rule 2004 (Qld) r 3. 22 Albeit for only three months at first instance.

414 Impe$ect Practice under the Legal Profession Act 2004 (Q14

Where lawyers are found guilty23 of an indictable24 offence or tax offence or become insolvent under admini~tration:~ the Act requires them to notify the Law Society or Bar Association within seven days. Then, within 28 days they must provide an explanation as to why they are still a suitable person to hold a practising ~ertificate.~~ That explanation is then passed on to the Legal Services Commissioner to decide whether further action is necessary.27 In addition, notice must be given within seven days of conviction of any offence which 'would have to be disclosed under the admission rules'.28 However the Supreme Court (Legal Practitioner Admission) Rules 2004 (Qld) provide no guidance on the types of convictions to be disclosed. General guidance is provided in Re ~ a m ~ t o n ~ ~ where de Jersey CJ confirmed that applicants for admission are obliged to display 'utmost good faith and candour, comprehensively displaying any matter which may reasonably be taken to bear on an assessment of fitness for pra~tice'.~' Hence the apparent 'current practice for applicants for admission is to routinely disclose even reasonably minor traffic offences'." It is suggested that, until the admission rules are amended, practitioners take a conservative approach and advise their professional body of any finding of guilt.32

The Legal Profession (Barristers) Rule 2004 (Qld) does not reflect the terminology and definitions used in the Act because it simply restates the Bar Association's professional conduct rules as they appeared prior to the passing of the Act. This causes some confusion and discrepancies. For instance, the Act expressly nominates a number of incidents which must be disclosed to the Law Society or Bar Association. It also contains detailed procedures to disqualify a lawyer fi-om managing an incorporated legal practice33 and states that conduct leading to a person becoming disqualified fi-om managing any corporation can constitute unsatisfactory professional conduct or professional miscond~ct .~~ However, the Act does not require either form of disqualification to be notified to the Law Society or Bar Association. The Barristers Rule, nevertheless, requires notification of the latter form of disqualification within 28 days.)'

23 Legal Profesion Act 2004 (Qld) s 15(1). 24 Legal Profesion Act 2004 (Qld) s 14. 25 Each of these is deemed a 'show cause event': Legal Profession Act 2004 (Qld) Schedule 5 definitions. 'Insolvent under administration' is also defined in Schedule 5. 26 Legal Profesion Act 2004 (Qld) s 63(1). 27 Legal Profession Act 2004 (Qld) s 63(2). 28 Legal Profession Act 2004 (Qld) s 58. 29 [2002] QCA 129 (Unreported, de Jersey CJ, Moynihan SJA and White J, 5 April 2002). 30 Ibid [26]. 3 1 Peter Byrnes, 'A New Disclosure Regime for Practitioners' (2004) 24(6) Proctor 23,24. 32 Mortensen's view is that the 'show cause' obligation is lying dormant, but I consider that this is an incautious assumption for practitioners to make: cf Reid Mortensen, 'Becoming a Lawyer: From Admission to Practice under the Legal Profession Act 2004 (Qld)' (2004) 23 Universiv of Queensland Law Journal 3 19. 33 Legal Profession Act 2004 (Qld) s 109. 34 Legal Profession Act 2004 (Qld) s 246(e). 35 Legal Profession (Barristers) Rule 2004 (Qld) rr 13 l(c), 132. The written notification must include sufficient detail to allow the Bar Association to determine whether the matter affects the banister's 'suitabiliy to engage in legal practice': ibid.


Similarly, it uses different terminology to describe the types of convictions to be notified than that used in the A C ~ . ~ ~

Since Queensland solicitors were first required to hold practising certificates in 1930, the Law Society's powers in relation to practising certificates have been strengthened through a series of legislative The 2004 reforms extend the powers of the Law Society further and grant similar powers to the Bar Association for the first time.38 As well as having the power to impose any condition which is 'reasonable and rele~ant', '~ the Law Society or Bar Association can refuse, cancel, suspend or amend a local practising certificate after giving the certificate holder 28 days to respond to a 'show cause' notice:' or immediately if necessary in the public interest.41 Although a practitioner can appeal all such decisions to the Supreme Court, the 2004 amendments undoubtedly give the professional bodies a significant degree of control over who will practise law. Hence, while there has been much complaint from the Law Society about losing the power to prosecute disciplinary action? its extended power over practising certificates will have a significant practical impact. This power will usually be exercised quietly, unllke the public display of control which accompanies disciplinary action. Disciplinary prosecution plays a demonstrative role which the administrative act of suspending, cancelling or imposing conditions upon practising certificates does not. Disciplinary proceedings are therefore more useful to a profession seeking public legitimacy and some may argue that this is why the grant of increased power in relation to practising certificates has been of cold comfort to the Law Society.

But will a shift of emphasis towards practising certificates lead to more effective regulation of lawyers? It can be safely presumed that it would be cheaper to remove a person's right to practise by utilising the certification procedures set

36 Legal Profession Act 2004 (Qld) refers to indictable offences, whereas the Legal Profession (Barristers) Rule 2004 (Qld) refers to offences with a maximum penalty of more than 12 months imprisonment or involving fraud or dishonesty: r 13 1 (d). 37 Linda Haller, 'Waiting in the Wings: the Suspension of Queensland Lawyers' (2003) 3 Queensland University of Technology Law and Justice Journal 397,416-8. From 1938 the Law Society could refuse to issue a practising certificate to a practitioner who was in default of an order of the disciplinary tribunal, had practised without a certificate or had not reimbursed monies paid from the fidelity h d . From 1974 the Law Society could suspend a practising certificate if disciplinary charges were pending or the Society had taken control of the practitioner's trust account, where there were trust account irregularities or where the practitioner had been convicted upon indictment or convicted of an offence which involved moral turpitude or fraud. In 1985, the Law Society's powers to refuse a certificate were further extended to situations where the applicant had taken advantage of bankruptcy laws, was in default of an order of the disciplinary tribunal or had failed to comply with a condition on a previous practising certificate. 38 Some of the conditions which the Law Society and Bar Association can impose on practising certificates are discussed in Mortensen, above n 32,32 1-322. 39 Legal Profession Act 2004 (Qld) s 53(1). 40 Legal Profession Act 2004 (Qld) s 68. 4' Legal Profession Act 2004 (Qld) s 79. 42 Josh Massoud, QLS won 't cop policing role (14 November 2003) Lawyers Weekly <http://www.lawye~weekly.com.au/articles/a6/OcOlb6a6.asp at 2 1 July 2004>. The article reports a complaint by the President of the Law Society about losing the prosecuting role while being asked to continue to investigate complaints referred by the commissioner.

4 16 Imperfect Practice under the Legal Profession Act 2004 (Qld)

out in the Act than it would be to convene a disciplinary hearing to achieve the same result. Such administrative processes can also respond more rapidly to concern about a legal practitioner's suitability to practise than can disciplinary action. A legal practitioner is less likely to challenge the cancellation or suspension of, or the imposition of conditions upon, a practising certificate than to challenge disciplinary action, for two reasons. First, the long term embarrassment and damage to reputation from a decision in relation to a practising certificate is likely to be less than from discipline, as such an administrative act occurs behind closed doors43 and the notions of dishonour and disgrace which attach to disciplineM do not necessarily apply with the same force to such administrative acts.45 A second, although more tentative, reason for suggesting that a lawyer is less likely to challenge a loss of practising certificate than discipline is that a challenge to the withdrawal of a practising certificate requires a lawyer to initiate court action, whereas the lawyer need only respond to a discipline application brought by the commissioner and already before the Tribunal and which the lawyer may be compelled to attend.46 If it is true that depression and other forms of mental ill-health underlie many examples of substandard practice, and if one symptom of this is procrastination, then extended disputation after the cancellation or suspension of a practising certificate may be less likely.

The only body which previously had a statutory obligation to accept and investigate complaints against lawyers was the Queensland Law An individual with a complaint against a barrister may have chosen to lodge a complaint with the Bar Association, the Barristers Board, the Legal Ombudsman or the Supreme Court, but none of these bodies was required, or had any statutory power, to investigate the complaint. It was the Law Society's poor handling of complaints against solicitors which was the main impetus for the new A C ~ . ~ ~ The Act now requires that all complaints against lawyers be channelled through the Legal Services ~ornrnissioner,4~ creating a single gateway as in New South Wales. Such a centralised system has the obvious advantage of indicating to complainants where to direct their grievance and should also ensure that complaints will be systematically recorded and dealt with. Its independence from professional bodies should also ensure greater

43 Compare disciplinary proceedings, which must be heard in public: Legal Profession Act 2004 (Qld) s 474(1). 44 See below VI A 2, for the test for professional misconduct. 45 Decision makers can amend, cancel or suspend a practising certificate if they believe the certificate holder is no longer 'a fit and proper person to hold the certificate' (s 67(a)) as well as on a number of other grounds, but it is argued that greater shame still attaches to discipline. 46 Legal Profession Act 2004 (Qld) s 483. 47 Queensland Law Society Act 1952 (Qld) s 5F. 48 In August 2002 the Attorney-General asked the Legal Ombudsman to investigate allegations of 'numerous unresolved complaints made to the Law Society'. The Ombudsman was highly critical of the Law Society's complaint handling record and recommended that all complaints be received by and investigations carried out by an independent body: Legal Ombudsman Report on Baker Johnson Lawyers, <http://www.justice.qld.gov.au/dept~pdfsaker.pdf > at 24 August 2004. 49 Legal Profession Act 2004 (Qld) s 256.

(2004) 23 The University of Queensland Law Journal 4 17

public confidence and lessen the risk of an actual or perceived conflict of interest. It was mentioned earlier that the Act gives the Law Society and Bar Association substantial power in relation to practising certificates. While the Law Society has had power in relation to practising certificates for many years, until this Act was passed, it was also responsible for the receipt and investigation of all complaints about solicitors. Together with its intimate knowledge of members gained by other, more collegiate means, the receipt of complaints had the potential to forewarn the Law Society of solicitors whose right to hold a practising certificate should be examined more closely. Now only the commissioner will have a complete picture of which lawyers are attracting complaints. The risk of information asymmetry and the inappropriate and automatic reissuing of practising certificates is obvi~us,~' but could be overcome by requiring the commissioner to provide the name of any barrister or solicitor subject to a complaint to the Law Society and Bar Association. An amendment to the Act is required to achieve this.

A De$nitions of Misconduct

The divergence between Australian jurisdictions as to the type of conduct subject to discipline has been a serious impediment to any national approach to lawyer regulation. Statutory definitions and case law varied fiom state to stateS1 and a major aim of the Model ~ a w s ' ~ is to standardise definitions between the jurisdictions.

1 Unsatisfactory Professional Conduct

The Act adopts the terminology used in New South for some time and proposed by the Model ~ a w s : ~ ~ professional misconduct and unsatisfactory professional conduct. Unsatisfactory professional conduct is not defined exhaustively but includes conduct in relation to practice which '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'.55 This is potentially much wider than the definition of unprofessional conduct which it supersedes. The common law definition of unprofessional conduct is 'conduct which may reasonably be held to violate, or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by

In considering the desirability of a single gateway for complaints handling in England and Wales, the Clementi Review noted the many advantages but also acknowledged that this would deny professions the valuable feedback gained from receiving complaints: Review of the Regulatory Framework for Legal Services in England and Wales: a Consultation Paper (March 2004) ('Clementi Review') 45 <http://www.legal- services-review.org.uWcontent/consultlconsultrevieaper.pd at 20 August 2004. 5' Attorney-General v Clough [2002] 1 Qd R 1 16,120 (Pincus JA), 135-8 (Muir J). 52 Model Laws, above n 1. 53 Legal Profession Act 1987 (NSW) s 127(2). 54 Model Laws, above n I, s 1 104. 55 Legal Profession Act 2004 (Qld) s 244.

418 Imperj%ect Practice under the Legal Profession Act 2004 (Qlq

members of the profession of good repute and c~mpetency ' .~~ Legislation in 1997 extended this definition to include 'serious neglect or undue delay, the charging of excessive fees or costs or a failure to maintain reasonable standards of competence or diligence'.57 There is little case law to provide guidance on the meaning of unprofessional conduct or unsatisfactory professional probably because discipline has focused on the more serious professional m i sc~nduc t~~ and because a finding of unprofessional conduct or unsatisfactory professional conduct is likely to lead to only minor discipline, which a lawyer is less likely to challenge in court.

2 Professional Misconduct

The ambit of professional misconduct has also been clarified by the Act to include a 'substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence'.60 In the past there was some confusion as to whether this could amount to more than unprofessional c~nduct .~ ' The Act also expressly broadens the ambit of professional misconduct to include matters occurring outside practice that relate to ~uitability.~' This will resolve past confusion as to the proper categorisation of such conduct.63

The Act expressly provides that the following can constitute professional misconduct or unsatisfactory professional conduct:

charging of excessive fees; a finding of guilt for an ind i~ tab le~~ offence, tax offence or offence involving dishonesty; an act of bankruptcy; or conduct deemed to be professional misconduct or unsatisfactory professional conduct by the Act or a legal profession mle?

Categorisation was not crucial under the Queensland Law Society Act, as all charges were heard by one tribunal and all powers of that tribunal could be

56 Re R, apractitioner of the Supreme Court [I9271 SASR 58,61. 57 Queensland Law Society Act 1952 (Qld) s 3B (repealed), inserted by Queensland Law Society Legislation Amendment Act 1997 (Qld) s 5. 58 While not required to determine the limits of 'unsatisfactory professional conduct', the High Court in Walsh v Law Society ofNew South Wales (1999) 198 CLR 73 thought that its inclusion was designed to meet concerns that regulators had previously neglected 'conduct falling short of proper standards of competence and diligence': [60] (McHugh, Kirby and Callinan JJ). 59 Between 1930 and 2000 the Queensland disciplinary tribunal for solicitors only found unprofessional conduct in 13% of cases: Linda Haller, 'Solicitors' Disciplinary Hearings in Queensland 1930-2000: A Statistical Analysis' (200 1) 13 Bond Law Review 1,23. 60 Legal Profesion Act 2004 (Qld) s 245(1)(a). 6' See discussion of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 and Medical Board of Queensland v Bayliss [2000] 1 Qd R 598 by Pincus JA in Attorney-General v Clough [2002] 1 Qd R 116, 120. 62Legal Profession Act 2004 (Qld) s 245(1)(b), (2). 63 Re Wheeler [I9921 2 Qd R 690,697 (Dowsett J); QueenslandLaw Society v Smith [2001] 1 Qd R 649,652 (Thomas JA); A Solicitor v Council of the Law Society of New South Wales (2004) 204 ALR 8. 64 Even if heard summarily: Legal Profession Act 2004 (Qld) s 14. 65 Legal Profession Act 2004 (Qld) s 246.


applied, whether the tribunal found professional misconduct or only unprofessional conduct? However the distinction between professional misconduct and unsatisfactory professional conduct now becomes crucial: first, because it is upon this basis that the commissioner will determine which disciplinary body should hear a matter; and second, questions arise as to how the Legal Practice Committee should respond if it finds evidence of professional misconduct. Both of these issues are taken up later in this article.

B Prosecution

1 Prosecutorial Discretion

Because Queensland barristers were not subject to any statutory regulation prior to the Act, there was much confusion as to what body, if any, should initiate disciplinary action. The range of disciplinary options was also far from pyramidal, with a lack of 'mid-range' discipline available.67

The Bar Association of Queensland could discipline members, but only to the extent allowed by its Articles of Association. As barristers were not required to be members of the association to practise law, even expulsion from membership was an inadequate form of discipline in more serious cases. The only other available response to misconduct by a barrister was an application to the Supreme Court in its inherent jurisdiction, but even there the range of orders available was necessarily limited?

The Bar Association appeared to have standing in relation to matters beyond those involving its own members, for instance in relation to admission proceedings,69 but in recent times the Barristers' Board became the de facto prosecutor,70 despite the fact that its formal disciplinary powers appeared limited to applications for the disbarment of a barrister convicted of an indictable offence.71 The discipline of barristers was in desperate need of reform.

The problems in the solicitors' branch of the profession were different but also demanded attention. As a result of concerted criticism of the Law Society's past performance,72 the Act totally removes the role of the Law Society in

-

66 Queensland Law Society Act 1952 (Qld) s 6R; Attorney-General v Clough [2002] 1 Qd R 116, 138 (Muir J). 67 CW Pincus, 'Ethical Conduct at the Bar' (Speech delivered to Bar Association pupils, Brisbane, 2 1 September 1990); CW Pincus, 'Ethical Conduct at the Bar' (1990) 34 Bar News 17,24. 68 Barristers ' Board v Daweniza (2000) 1 12 A Crim R 439, [37], discussed in Reid Mortensen, 'Lawyers' Character, Moral Insight and Ethical Blindness' (2002) 22 The Queensland Lawyer 166, 17 1. 69 Bar Association of Queensland v Lamb [I9721 ALR 285; as do bar associations elsewhere: Wentworth v New South Wales Bar Association ( 1 992) 176 CLR 239. 70 Barristers ' Board v Daweniza (2000) 1 12 A Crim R 439; Barristers 'Board v Young [2001] QCA 556 (Unreported, de Jersey CJ, Davies JA and Mackenzie J, 7 December 2001); Barristers 'Board v Pratt 120021 QCA 532 (Unreported, de Jersey CJ, Helman and Philippides JJ, 5 December 2002). 71 Barristers 'Admission Rules (no 1) 1995 (Qld) r 42A. This power was in addition to its power to enquire into the fitness of applicants for admission and of current students-at-law: Barristers 'Admission Rules (no 1) 1995 (Qld), rr 36,42B, 44. 72 Legal Ombudsman Report on Baker Johnson Lawyers, <http://www.justice.qld.gov.au/dept/pdfsaker.pdf > at 24 August 2004.


prosecuting solicitors. The decision whether to institute a prosecution against barristers or solicitors will now be that of the Legal Services ~ornrnissioner.~~ The new Act adopts provisions recommended by the Model Laws: even if the commissioner believes there is evidence of professional misconduct or unsatisfactory professional conduct, he or she may dismiss a complaint if this is in the public interest.74

A similar power to dismiss complaints has existed in New South Wales since 2000~' and that legislation suggests it may be in the public interest to dismiss a complaint where the practitioner has retired from practice or is prevented from practising.76 In Queensland this is stated more narrowly, only suggesting it may be in the public interest to dismiss a complaint if the lawyer's name has already been removed from the

2 Summary Powers of Commissioner

The Queensland Law Society previously had a broad range of powers to deal with substandard conduct without formally prosecuting disciplinary charges. These included the power to censure, admonish or seek undertakings from a practitioner about a complaint78 or facilitate mediation of a complaint if both parties agreed.79 But under the new Act the Queensland commissioner has less discretion to deal summarily with a complaint. Although the commissioner can recommend mediation of a complaint that he or she considers involves only a consumer dispute,80 there is no power to deal summarily with minor misconduct, even though the Model Laws contemplate that all Australian jurisdictions will allow 'appropriate authorities7 to impose fines or public or private reprimands? Such 'on the spot' fines were also recommended by the Legal Ombudsman in his report into the Law Society's handling of complaints.82 The new Queensland provision is also narrower than the current power of the New South Wales Legal Services Commissioner to issue reprirnand~.~) Summary action must still be considered a valuable disciplinary tool in New South Wales as the power of the commissioner to reprimand and enforce undertakings has been recently

73 Legal Profession Act 2004 (Qld) s 273. The Law Society or Bar Association must include a recommendation whether or not to prosecute with the report of any investigation the commissioner has requested that they undertake: s 268(4)(b). 74 ~ e ~ a l profession Act 2004 (Qld) s 274(1)(b); Model Laws, above n 1. 75 Legal Profession Act 1987 (NSW) s 155A(1 j, inserted by Legal Profession Amendment (Complaints and Discipline) Act 2000 (NSW) sch 1 [4]. 76 Legal Profesion Act 1987 (NSW) s 155A(2). 77 Legal Profession Act 2004 (Qld) s 259(1)(e). 78 Queensland Law Society Act 1952 (Qldj s 5J (repealed). 79 Queensland Lmv Society Act 1952.(Qld) s 51 (repealed). 80 Legal Profession Act 2004 (Qld) s 263. 'Consumer dispute' is defined by s 262(b) to mean a dispute which does not involve any issue of unsatisfactory professional conduct or professional misconduct.

Model Laws, above n 1, s 1131. 82 Legal Ombudsman Report on Baker Johnson Lawyers, <http://www.justice.qld.gov.au/dept~pdfsibaker.pdf> at 24 August 2004. 83 Legal Profession Act 1987 (NSW) s 155(3)(a).

(2004) 23 The University of Queensland l a w Journal 42 1

strengthened and clarified,84 even though wholesale amendments are imminent .85

The Braithwaite enforcement pyramid requires a seamless model of escalating powers and sanctions - but the structure established by the Act is far from seamless. The commissioner's options are limited: he or she can dismiss a complaint if satisfied that it is in the public interest to do so, even if there is evidence of professional misc~nduct.~"he threshold test for 'unsatisfactory professional conduct'87 may require no more than 'mere' negligence. In such circumstances, the commissioner's only option apart from dismissing the complaint on public interest grounds is to bring a formal discipline application before one of the two new disciplinary bodies. Ayres and Braithwaite's discussion of responsive regulation would suggest that reducing the options available to the commissioner makes him or her less able to 'bargain and bluff 88

and less likely to receive co-operation from those he or she seeks to regulate, as they scramble to avoid the likelihood of a public disciplinary hearing arising from an allegation of what may amount to little more than negligence. In addition, without a greater range of options available to the Commissioner, there is the risk of (at least sub-conscious) under-regulation by the commissioner, in the same way that police are said to avoid arresting drunk drivers if the only outcome is mandatory Of course, if the commissioner were given summary powers, his or her use of those powers would need to be subject to scrutiny, perhaps through a requirement that the commissioner briefly record in his or her Annual Report the type of matters which have led to an 'on the spot' fine or censure, in the same way that censures imposed by the Law Society Council were reported in Disciplinary Action Reports published by the Law Society.

C Legal Practice Tribunal and Legal Practice Committee

1 Powers

The Act introduces two disciplinary bodies, the Legal Practice Tribunal and Legal Practice Committee. The Tribunal will have a similar range of powers to those held by the Solicitors Complaints Tribunal, including the power to order that a person's name be removed fi-om the roll9' or practising certificate

84 Legal Profession Amendment Act 2004 (NSW), amending s 155 and inserting ss 17 IN and 17 1U. 85 The amendments will incorporate the Model Laws, above n 1, recommendations from the New South Wales Law Reform Commission Report, Complaints Against Lawyers: An Interim Report, Report No 99 (2001) and New South Wales Attorney-General's Department report, Further Review of Complaints Against Lawyers (2001): New South Wales, Parliamentaq Debates, Legislative Assembly, 2 June 2004,9396 (Bob Debus). 86 Legal Profession Act 2004 (Qld) s 274(1)(b). 87 It includes conduct in relation to practice which '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.': Legal Profession Act 2004 (Qld) s 244.

Ayres and Braithwaite, above n 2,36. 89 Malcolm Feeley, Court Reform on Trial: Why Simple Solutions Fail ( 1 983) 126-3 8; cited in Ayres and Braithwaite, above n 2, 36. 90 Legal Profession Act 2004 (Qld) s 280(2)(a). Although the section refers to a recommendation for removal, the Registrar must follow the recommendation: Legal Profession Act 2004 (Qld) s 285(3).

422 Impe$ect Practice under the Legal Profession Act 2004 (Qld)

cancelled or suspended.91 The maximum fine remains at $100 0 0 0 . ~ ~ AS noted by ort tens en:^ the new Act removes the power of the Tribunal to suspend from practice, instead focusing on a power to suspend a practising certificate. This again demonstrates a trend to control the right to practise through practising certificates, rather than through the roll of legal practitioners.

The disciplinary powers94 of the Legal Practice Committee are much more circumscribed than those of the tribunal. It will hear matters involving non- lawyer employees95 and can also hear matters involving lawyers but cannot cancel or suspend practising certificates and can only impose fines up to $10 0 0 0 . ~ ~

2 Queensland's Previous Experience of a Two-Tiered Disciplinary System

The reintroduction of a two-tier system in Queensland is surprising, given that such a structure was not successful when previously introduced in 1 9 8 5 . ~ ~ The full reasons for its demise remain unclear and it is not possible to get a full picture as some records of its operations are missingY8 but some possible problems can be gleaned from the records which are available from 33 hearings. For instance, on two occasions the Solicitors Disciplinary Tribunal felt inadequate to handle cases and referred them to the more powerful Statutory Committee; on one occasion because it was the solicitor's second appearance before the Tribunal and the solicitor still failed to ~ o - o ~ e r a t e , ~ ~ and on a second occasion because the charges included allegations of dishonest conduct.100 And yet the Tribunal did not routinely decline to hear matters involving dishonesty. On one occasion, even though the Tribunal found that a solicitor knowingly misled a fellow solicitor, it did not refer the matter to the Statutory Committee, and instead imposed a fine of $3,000.~~' On another occasion the Tribunal found that a solicitor had requested and procured his secretary to witness two bills of mortgage when he knew she had not in fact witnessed their execution.lo2 Again, despite the evidence of dishonesty, the Tribunal declined to refer the matter to the Statutory Committee which could have imposed more severe orders, and instead fined the practitioner $2 000. All of these cases suggest that the Tribunal exercised its powers in an uneven fashion, leading to confusion as to what

" Legal Profesion Act 2004 (Qld) s 280(2)(b), (c). " Legal Profesion Act 2004 (Qld) s 280(4)(a). 93 Mortensen, above n 32,324. 94 It is also required to monitor the adequacy of each legal profession rule: Legal Profession Act 2004 (Qld) s 221. 9' Legal Profssion Act 2004 (Qld) s 276(l)(b)(ii). 96 Legal Profssion Act 2004 (Qld) s 282(2)(b). 97 Queensland Law Society Act Amendment Act 1985 (Qld) s 6A. 98 It would seem from available records that approximately 53 matters were allocated for hearing by the Solicitors Disciplinary Tribunal, but 20 of these files were missing at the time of an earlier data collection: Linda Haller, 'Solicitors' Disciplinary Hearings in Queensland 1930-2000: A Statistical Analysis' (2001) 13 Bond Law Review 1. 99 Re X (1992) 22 Queensland Law Society Journal 466. loo Re X (1 993) 23 Queensland Law Society Journal 192. lo' Re X( 1992) 22 Queensland Law Society Journal 467. lo2 Re X (1 992) 22 Queensland Law Society Journal 468.


matters it should hear and what matters should only be heard by the Statutory Committee.

In addition to the problem of determining which disciplinary body should hear a matter, the benefits expected from a lower level tribunal failed to materialise. For instance, at the time the Solicitors Disciplinary Tribunal was introduced, the President of the Queensland Law Society told his members that this second body was needed to

provide the Society with a body which can discipline practitioners in a more constructive and positive role when the occasion so demands. In particular . . . to order remedial action to be undertaken by the practitioner concerned, including attendance at lecture programmes conducted by the ~ociety."~

There are strong arguments that there was no need to create a second body as the existing Statutory Committee already had the power to order such remedial action.'" Nevertheless, the records suggest that the Solicitors Disciplinary Tribunal did not take up the invitation to order remedial action to the extent envisaged by the President, with fhrther education ordered in only three cases; audits, reporting or document inspection ordered in two; and counselling in only

105 one.

The President also promised members that the less formal style of the Solicitors Disciplinary Tribunal would provide a 'less awesome' prosecution process106 and the Attorney-General told Parliament that this new Tribunal would be less formal and therefore more efficient than the Statutory

In what sense was the new Tribunal expected to be less formal than the Statutory Committee? It is true that proceedings before the new, lower level Tribunal were more private because it was not required to report its hearings - as was the

103 Denis Byrne, '1985 Amendments to the Law Society Act Introduce Widespread Changes in the Society's Disciplinary Procedures' (1986) 16 Queensland Law Society Journal 7,7. 104 From its inception in 1927, the Statutory Committee had been given powers as broad as those held by the court: Section 5(3)(a) of the Act of 1927 stated that the Statutory Committee 'had power aRer hearing the case to make any such order as to striking off the roll or suspending from practice either conditionally or otherwise, the practitioner to whom such application relates or as to the payment by any party of costs or otherwise, in relation to the case as before the commencement of the Act the court would have hadpower to make in accordance with the authority andpractice of the court' (emphasis added). Therefore, for guidance on the extent of its own powers, the Statutory Committee need only look to the court's inherent powers to discipline practitioners. In Law Society ofNew South Wales v Foreman (1994) 34 NSWLR 408, Kirby J had no doubt that the Court of Appeal in New South Wales, in exercising its inherent jurisdiction, could frame quite novel orders to klfil its protective role. He called on courts to be 'more creative' in fashioning orders 'apt to the misconduct found'. '05 From a total of 33 hearings for which records are available. 106 Denis Byrne, '1985 Amendments to the Law Society Act Introduce Widespread Changes in the Society's Disciplinary Procedures' (1986) 16 Queensland Law Society Journal 7,7. 107 Queensland, Parliamentary Debates, Legislative Assembly, 28 November 1985,3046-3047 (Neville Harper). The changes were supported by the opposition, with the Leader of the Opposition noting that 'for a long time a need for greater flexibility has existed': Queensland, Parliamentary Debates, Legislative Assembly, 4 December 1985,33 16 (Wayne Goss).

424 Imperfect Practice under the Legal Profession Act 2004 (Qlq')

Statutory - and sat in private until 1993.1°9 Closed hearings may encourage greater co-~~era t ion"~ and hence more 'efficient' hearings, but any perceived advantage was lost once proceedings were opened to the public in 1993. Nor could this be a relevant consideration today as both of the disciplinary bodies established by the Legal Profession Act 2004 (Qld) are required to sit in public."' Perhaps it is just a coincidence that the only record of senior counsel appearing on behalf of a solicitor before the Solicitors Disciplinary Tribunal occurs in a case heard after such hearings were opened to the public (and the media). But apart fiom whether or not the QC was briefed to appear because the hearing was to be in public, his presence itself attests to the fact that proceedings before the Solicitors Disciplinary Tribunal were not necessarily any less formal than those before the Statutory Committee. It remains difficult to know how the President of the Law Society and the Attomey-General expected these proceedings to be less formal.

Most importantly, whatever the possible reasons for the failure of the Solicitors Disciplinary Tribunal, it was the prosecutor, the Queensland Law Society, which appears to have finally lost faith in a two-tier system well before it was formally removed by legislation. The Law Society did not refer any matters to the Solicitors Disciplinary Tribunal after December 1994 and instead brought all matters before the Statutory Committee. Although it had no more work to do, the Tribunal remained part of the disciplinary fiamework in Queensland until it was formally disbanded by legislation in 1997, along with the Statutory Committee, and replaced by one tribunal, the Solicitors Complaints ~ribuna1.l l2

3 Current Impetus for a Two-Tier System

It is difficult to find the source of the idea to reintroduce a two-tier disciplinary system in 2004. Although both the Queensland Law Society and Attorney- General promoted the introduction of a two-tier system in 1985, since its demise in 1994 neither the Government nor has either of the professional bodies championed its reintroduction. In its response to the State Government's Discussion Paper on Legal Profession ~ e f o r m " ~ in December 1998, the Bar Association of Queensland recommended the introduction of a single disciplinary body, as operates in New South ~ a 1 e s . l ' ~ In June 1999 the Government issued a Green Paper which proposed the introduction of a single

108 Queensland Law Society Act 1952 (Qld) s 6(3)(b), relocated to s 6W (repealed). 109 Linda Haller, 'Dirty Linen - The Public Shaming of Lawyers' (2003) 10 International Journal of the Legal Profession 28 1,295. 'I0 Ibid 298-9. 1 1 1 Legal Profession Act 2004 (Qld) s 474(1), unless satisfied that, for reasons connected with the subject matter of the hearing or the nature of evidence to be given, it is desirable in the public interest to close the hearing: s 474(2). 112 Queensland Law Society Amendment Act 1997 (Qld). 113 Queensland Department of Justice and Attorney-General, Legal Profession Discussion Paper (1998)<http://www.justice.qld.gov.ad0wlaws/pape/legaefom.htm at 21 September 2004 ('Discussion Paper'). 114 Bar Association of Queensland, Submission to Queensland Attorney-General on Discussion Paper on Legal Reform in Queensland, December 1998, 19.

(2004) 23 71ze University of Queensland Law Journal 425

disciplinary body,' l5 and while both the Bar ~ssociationl l6 and Law society1 l7

had a number of criticisms of the model proposed in the Green Paper, neither body suggested a two-tier system.

The Government did not provide any reasons for creating two rather than one disciplinary body when tabling the 2004 amendments. Even though a professed aim of the 2004 reforms is to increase the consistency with existing or proposed disciplinary structures in other Australian jurisdiction^,"^ a two-tier system in Queensland appears contrary to the national trend: the Model Laws contemplate only a single disciplinary body;ll9 New South Wales has only a single-tier disciplinary tribunal to hear matters at first instance;lzo and the multiple points of entry and complexity of the Victorian system have been unanimously criticised,lzl and a single point of entry proposed.122

4 Which Body?

The new Queensland legislation provides no guidance to the commissioner for deciding whether the Tribunal or Committee should hear a particular matter,123 although the Attorney-General indicated in his Second Reading speech that the commissioner was to bring less serious matters before the committee and more serious matters to the ~r ibuna1 . l~~ He has also expressed confidence that the commissioner would be able to seek guidance fiom a 'considerable body of precedent' in determining the appropriate body to hear a particular matter.lz5 However this may be an overly optimistic view of the situation, given that records only exist for 33 matters heard by a lower level tribunal in Queensland and in two of these the tribunal felt the matter had been inappropriately referred to it. Even these 33 records may be of limited use given that the definitions used then to decide which tribunal should hear a matterlz6 were different to the

115 Queensland, Green Paper -Legal Profession Reform (1999) 10 <http://www.justice.qld.gov.au/~~~laws/papersee.pd at 21 September 2004 ('Green Paper 3. 116 Bar Association of Queensland, Response to the Green Paper on Legal Profession Reform, June 1999,445. 117 Queensland Law Society, Response to the Green Paper on Legal Profession Reform, August 1999,8. The Law Society's main criticism of the proposed new Disciplinary Board was that it would not be able to award compensation, as could the Solicitors Complaints Tribunal: 1.2.6. Later in its submission, the Law Society did say that 'Allegation of professional misconduct or unprofessional conduct could be referred for hearing to the tribunal or disciplinary board . . . ' (1.5.6), but it is suggested that the Law Society was providing alternate terminology rather than suggesting two separate bodies, particularly as two bodies are not suggested anywhere else in its response. 118 Explanatory Memorandum, Legal Profession Bill 2004 (Qld), 2. 119 Model Laws, above n 1, Part 11, Division 9, ss 1137-1 152. 120 Although matters involving only unsatisfactory professional conduct can normally be heard in private: Legal Profession Act 1987 (NSW) s 170(1). 121 Peter Sallmann and Richard Wright, Regulation of the Victorian Legal Profession, Report of the Review of the Legal Practice Act 1996, November 200 1,15,18. 122 Rob Hulls, 'New Legal Complaints System Puts Consumers First' (Press Release, 25 July 2003). 123 Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2003,5239,5246 (Lawrence Springborg). 124 Queensland, Parliamentary Debates, Legislative Assembly, 29 October 2003,4487 (Rod Welford).

Letter from Rod Welford MP to Linda Haller, 21 November 2003. 126 'Professional misconduct' and 'unprofessional conduct', both of which at that time were defined only by the common law.

426 Impeflect Practice under the Legal Profession Act 2004 (Qld)

definitions of professional misconduct and unsatisfactory professional conduct provided in the new legislation. 127

The power of the Legal Practice Committee to make orders only arises if the Committee concludes that the lawyer is guilty of unsatisfactory professional ~ 0 n d u c t . l ~ ~ This power is not expressly limited to where the finding is only of unsatisfactory professional conduct, hence the question arises whether the Committee has jurisdiction where it also finds evidence of professional misconduct. A finding of the more serious professional misconduct will often necessarily mean that the less onerous test of unsatisfactory professional conduct will also be met. This problem has been addressed in some parts of the Model Laws, for instance where they recommend power for a complaint to be summarily dealt with if the authority 'is satisfied that there is a reasonable likelihood that the practitioner would be found guilty by the Disciplinary Tribunal of unsatisfactory professional conduct (but not professional misconduct) . . Unlike the Model Laws, there is no obligation or procedure in the Act for the Legal Practice Committee to refer a matter to the Legal Practice Tribunal where there is evidence of professional misconduct, although this would seem to be Parliament's intent.l3'

The co-existence of two disciplinary bodies with such little distinction between them also creates a distinct 'bump' in any notionally pyramidal regulatory structure. Perhaps this will not be an insurmountable dilemma for the commissioner who no doubt will refer a matter to the more powerful tribunal if in doubt.131 A simple and possibly cheaper solution, given the poor record of twin disciplinary bodies in Queensland, is to remove the Legal Practice Committee's disciplinary powers.132 Alternatively, its jurisdiction should be clarified in line with the Model Laws.

5 Membership

In a major change to the existing regime for solicitors, the members of the Legal Practice Tribunal are the current judges of the Supreme Court and the Tribunal is constituted by one of those judges.133 The Chief Justice has highlighted the

127 'Professional misconduct' defined by the common law and by the Legal Profession Act 2004 (Qld) s 245, and 'unsatisfactory professional conduct', a partial definition of which is provided by Legal Profession Act 2004 (Qld) s 244. lZg Legal Profession Act 2004 (Qld) s 282(1), or an employee is guilty of misconduct in relation to the practice: s 282(l)(b). '29 Model Laws, above n 1, s 1 13 1 (l)(b). 130 Queensland, Parliamentary Debates, Legislative Assembly. 29 October 2003,4487 (Rod Welford); Model Laws, above n 1. 131 In New South Wales, the disciplinary body appears to face a more difficult task in distinguishing between unsatisfactory professional conduct and professional misconduct: the legislation requires a hearing which relates only to unsatisfactory professional conduct to be held in private (Legal Profession Act 1987 (NSW) s 170(1)), unless the Tribunal believes that a public hearing is in the public interest or the interests ofjustice. It will often not be until the end of a disciplinary hearing that the Tribunal will know whether it 'relates' to this or to the more serious professional misconduct, by when of course it is too late to close the doors of the hearing. 132 It could retain its role of monitoring legal profession rules: Legal Profession Act 2004 (Qld) s 22 1. 133 Legal Profession Act 2004 (Qld) s 429.


need for both consistency and timeliness in hearing these cases and indicated an intention to place the matters on the civil list, while noting the consistency which could be gained if only a smaller group of judges heard cases."4

Lay persons and practitioners still have a part to play, but only as members of advisory panels to sit with the Tribunal and 'help the tribunal in hearing and deciding a discipline application'.'35 The Leader of the Opposition has questioned the necessity of a judge being subject to the 'influence' of these advisers,136 although this reform in fact reduces the role of practitioner and lay members, who previously had full voting rights on the Solicitors Complaints Tribunal. In New South Wales, at least one practitioner member and one lay member sit on all disciplinary hearings.137 Significant reforms have been foreshadowed in Victoria to resolve the complexity of the present system,138 but there appears to be no plan to remove the voting rights of the lay and practitioner members who presently sit on the disciplinary trib~na1.l)~

A broader range of persons will have decision-making power on the Legal Practice Committee. The Committee will consist of a chairperson, two solicitors, two barristers and two lay members,l4' but will hear discipline applications with three members: the chairperson, a lay member and a practitioner member from the same branch of the profession as the person appearing before the committee. l4'

D Costs

Some valid concern has been expressed about the liability of lawyers to pay the costs of disciplinary hearings and the removal of much of the Tribunal's discretion in relation to Under the new Act the Tribunal is only excused from ordering the lawyer to pay costs if the Tribunal is satisfied that 'exceptional circumstances' exist,143 a very high standard. This implements the

134 Chief Justice Paul de Jersey, 'The Supreme Court under the Legal Profession Act 2004' (2004) 23 University of Queensland Law Journal 281,286. 135 Legal Profession Act 2004 (Qld) s 437(3), 444(2). A barrister member will assist in relation to matters involving barristers and a solicitor in matters involving solicitors: s 444(3)(b). 136 Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2003,5248 (Lawrence Springborg). 137 Administrative Decisions Tribunal Act 1997 (NSW) Sch 2 Pt 3 Div 3 cl4. The president of the Tribunal determines whether a District Court judge will also sit and whether three or four members are appropriate: cl i\l).

Jason Silverii, 'Regulation One-Stop Shop' (September 2003) 77(9) Law Institute Journal 20,20. It is proposed that the Victorian Civil and Administrative Tribunal will establish a Legal Practice List, similar to the Legal Services Division of the New South Wales Administrative Decisions Tribunal. An official report recommended that, given the 'distinctive importance' of disciplinary matters involving lawyers, this hnction not be absorbed into the Victorian Civil and Administrative Tribunal, but this recommendation was not accepted: Sallmann and Wright, above n 12 1,44; Julls, above n 122. '39 Legal Practice Act 1996 (Vic) s 400(2)(b). 140 Legal Profession Act 2004 (Qld) s 452(1). l4' Legal Profession Act 2004 (Qld) s 469(2). 142 Legal Profession Act 2004 (Qld) s 286; Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2003,5239,5247 (Lawrence Springborg). 143 Legal Profession Act 2004 (Qld) s 286(1). There need only be a finding of guilt. The section says nothing of the number of matters investigated by the commissioner and the number of charges upon which the lawyer was found not guilty.

428 Imperfect Practice under the Legal Profession Act 2004 (Ql4

proposal in the Model ~ a w s l ~ ~ but the experience in Queensland would suggest its inclusion is both unnecessary and undesirable. In 89% of disciplinary hearings in Queensland heard in the period 1930-2000, the Tribunal ordered the solicitor to pay costs.145 It would therefore seem this codification is unnecessary, particularly as a judicial body's power in relation to the awarding of costs is a very useful and subtle mechanism to regulate its proceedings. It is suggested it is inappropriate to limit the discretion in any way, particularly as there is no evidence that it has been misused in the past.

E Appeals

The Queensland Law Society has held the power to appeal tribunal decisions since 1937, although only began to exercise that power in the mid-1980s. Since then it has played an active role in the review of Tribunal decisions, lodging a number of appeals.146 In a major rebuff, the Act removes this power and only the practitioner, the Minister for Justice and the new Legal Services Commissioner can lodge appeals.147 This is quite distinct from the position in New South Wales where the Bar Association and Law Society can lodge appeals but the Legal Services Commissioner cannot, despite requesting such a power since at least 2000 . '~~ In Victoria, any party to the Tribunal hearing can appeal to the Court of ~ ~ ~ e a l ~ ~ ~ and this would appear to include the Law Institute of Victoria (if a solicitor is involved).150 In further evidence of an increasing national focus on practising certificates rather than discipline, the Model Laws include provisions in relation to appeals against restrictions on practising certificate^'^^ but remain silent on the question of appeals against discipline. Unlike Queensland, the professional bodies in New South and continue to have the power to prosecute discipline applications. The power to prosecute and the power to appeal tend to go hand-in-hand and, as the Act removes the

144 Model Laws, above n 1, s 1 150(1). 145 N= 459 hearings. The tribunal ordered the Law Society to pay on two occasions and a third party to pay on two other occasions. No order for costs was made in another 19 hearings. These figures are compiled from the database reported in Linda Haller, 'Solicitors' Disciplinary Hearings in Queensland 1930-2000: A Statistical Analysis' (200 1) 13 Bond Law Review 1. 146 Re Walter (Unreported, Connolly, Shepherdson and Williams JJ, 22 May 1987); Queensland Law Society Inc v A Solicitor [I9891 2 Qd R 33 1; Queensland Law Society v Mead (Unreported, Supreme Court of Queensland, Court of Appeal, Fitzgerald P, McPherson JA and Williams J, 22 April 1997); Queensland Law Society Inc v Smith [2001] 1 Qd R 649; Attorney-General v Bax [I9991 2 Qd R 9; Clough v Queensland Law Society Inc [2002] 1 Qd R 1 16; QLS v Carbewy [2000] QCA 450 (Unreported, Pincus JA, Moynihan SJA and Atkinson J, 3 November 2000); Council of the Queensland Law Society Inc v Whitman [2003] QCA 438 (Unreported, de Jersey CJ, McPherson JA and Jones J, 17 October 2003); Council of the QueenslandLaw Society Inc v Roche [2003] QCA 469 (Unreported, de Jersey CJ, McMurdo P and Williams JA, 3 1 Ovtober 2003); Council of the Queensland Law Society Inc v Wakeling [2004] QCA 42 (Unreported, de Jersey CJ, Davies and Williams JJA, 27 February 2004). 147 Legal Profession Act 2004 (Qld) s 292(1). 148 New South Wales Law Reform Commission, Complaints Against Lawyers: Review of Part 10 [Legal Profession Act 1987 (NSW)], Issues Paper 18, October 2000,37; Legal Profession Act 1987 (NSW) ss 169, 171F. 149 Legal Practice Act 1996 (Vic) s 170. 1 SO Legal Practice Act 1996 (Vic) s 3, as well as the complainant. Is' Model Laws, above n 1, s 443. lS2 Legal Profession Act 1987 (NSW) s 167(1). '53 Legal Practice Act 1996 (Vic) s 157(1).


Queensland Law Society's power to prosecute, it was perhaps inevitable that it would also lose the right of appeal.

The presence of two disciplinary bodies also complicates the appeal process: appeals against decisions of the Legal Practice Committee will be heard by the Legal Practice Tribunal if lodged within 28 daysls4 or by the Court of Appeal with leave if lodged after that time.155

F Publication of Disciplinary Outcomes

The publication of an adverse disciplinary finding can cause serious damage to a practitioner's reputation. Conversely, there is increasing public pressure that disciplinary proceedings be transparent and accountable and this is a stated aim of the new legislation.156 The Act follows the lead of New South by requiring disciplinary action to be recorded on a discipline register,15* but Queensland adopts a very narrow definition of disciplinary action for the purposes of publication, albeit a definition recommended by the Model ~ a w s . ' ~ ~ 'Disciplinary action' is defined as referring only to findings of professional misconduct but not to findings of unsatisfactory professional conduct.'60 In New South Wales disciplinary action is defined much more broadly to include the suspension or cancellation of a practising certificate, for whatever reason, and findings of unsatisfactory professional conduct.161 Ambiguity remains in Queensland as to the power to publicise less serious disciplinary action. For instance, the Act allows the commissioner to 'publicise disciplinary action taken against a person in any way the commissioner considers appropriate.'162 Given the narrow statutory definition of disciplinary action, this does not provide the commissioner with any protection for publicising the outcome of disciplinary matters where a lawyer is acquitted or only unsatisfactory professional conduct found, even if the tribunal considered it appropriate to fine the practitioner the maximum amount of $100 000.

The Act provides for a number of offences in relation to unauthorised disclosure of information, but permits the disclosure of information that does not help to identify a lawyer or complainant,'63 or is 'made in connection with a legal proceeding ... or of any report of a proceeding', including disciplinary proceedings164 or is otherwise disclosed with lawful excuse.165 While this means reports of disciplinary hearings are protected from criminal sanction, such a

'54 Legal Profession Act 2004 (Qld) s 293(1). IS5 Legal Profession Act 2004 (Qld) s 294. 156 Explanatory Notes, Legal Profession Bill 2004 (Qld) 3. 15' Legal Profession Act 1987 (NSW) s 171LC. Is8 Legal Profession Act 2004 (Qld) s 296. lS9 Model Laws, above n 1, s 1 159. 160 Legal Profession Act 2004 (Qld) s 295. 16' Legal Profession Act 1987 (NSW) s 171LA. 162 Legal Profession Act 2004 (Qld) s 297(1) (emphasis added). See also Legal Profession Act 1987 (NSW) s 171LB. 163 Legal Profession Act 2004 (Qld) s 592(3). '" Legal Profession Act 2004 (Qld) s 592(1)(d). '65 Legal Profession Act 2004 (Qld) s 592(1)(e).


provision certainly falls far short of facilitating reporting and encouraging transparency and accountability in the disciplinary system.'" This would require Parliament to provide express statutory protection against proceedings for defamation to reports of acquittals and findings of unsatisfactory professional conduct. 167

Even more disturbing is that the Act does not require either disciplinary body to record the reasons for its decision. Although the common law requires judicial bodies such as the Tribunal and Committee to give reasons,168 disciplinary bodies in Queensland have been repeatedly criticised by the court169 for ignoring not only the common law, but express legislative provisions which existed previously.170 This suggests it is essential that the Act expressly state the need to give reasons.

VII HEALTH ASSESSMENTS

A number of solicitors who face discipline appear to be struggling with issues such as alcohol abuse and depression. It is in the interests of the profession and the public to take steps to address these issues at an early stage.171 Difficulties have arisen in the past when it was presumed that the common law test of professional misconduct (disgraceful or dishonourable conduct) needed to be satisfied before a person could be removed from the roll and courts and tribunals were sometimes reluctant to consider a person suffering from serious health problems, who may be unaware of their actions and lack moral culpability, to be in disgrace or dishonour. 172

The Act takes the very welcome step of breaking the nexus between health issues and discipline. Its intention is that health issues not be dealt with in the disciplinary context. This compares favourably with the position in jurisdictions

166 Two objectives of the reforms: Explanatory Notes, Legal Profession Bill 2004 (Qld) 3. 167 Queensland, Parliamentary Debates, Legislative Assembly, 26 November 2003,5239,5247 (Lawrence Springborg), cf 27 November 2003,5299 (Bill Flynn). Claims for qualified privilege may prove more successful following the High Court's decision in Bashford v Information Australia (Newsletters) Pty Limited (2004) 204 ALR 193, but only statutory protection will encourage comprehensive reporting. 168 The Supreme Court has relied on the common law obligation of statutory tribunals to give reasons rather than on express legislative provisions. For instance, in A-G v Kehoe [2001] 2 Qd R 350,1221 Thomas JA cited Cypressvale Pty Ltd v Retail Shop Lease Tribunal [I9961 2 Qd R 462,476477,482484 and made no reference to the legislative provisions. 169 Walter v Council of Queensland Law Society (1988) 62 ALJR 153 at 157; Adamson v Queensland Law Society Inc [I9901 1 Qd R 498,508; Attorney-General v Kehoe [2001] 2 Qd R 350, [22-261 (Thomas J) and [3- 41 (de Jersey CJ, with whom Ambrose J agreed); QLS v Carberry [2000] QCA 450 (Unreported, Pincus JA, Moynihan SJA and Atkinson J, 3 November 2000) [6] (Pincus JA); Council of the QueenslandLaw Sociefy Inc v Lowes [2003] QCA 201 (Unreported, de Jersey CJ, Jerrard JA and Helman J, 23 May 2003) [22] (de Jersey CJ). 170' The need to state findings on questions of fact was contained in the Queensland Law Society Act from 1927, in s 6(3)(b) of the 1952 Act and then in s 6V(l)(b) (repealed). The need to provide reasons for the particular order made, in addition to giving findings on questions of fact was stated explicitly in Queensland Law Society (Solicitors Complaints Tribunal) Rule 1997 s 14(h). 171 Pat Mullins, 'Legal Profession Act 2003' (Paper presented at University of Queensland Law Graduates Association Breakfast Customs House, Brisbane, 25 February 2004) 3. "' Re B (a Solicitor) [I9861 VR 695; Re a Practitioner [I9601 SASR 178; Re Harrison (1997) 6 Disciplinary Reports (NSW) 29.


such as South Australia, where there is no legislative power to cancel or suspend a practising certificate on health grounds,173 necessitating disciplinary action to be brought.

The Queensland Law Society has had discretion in this area for some time: fiom 1974 it had the power to cancel or refuse to issue a practising certificate if 'infirmity, injury or illness (whether mental or physical)' made a practitioner 'unfit to carry on and conduct his practice' and if it was 'in the interests of his clients or of the public' that the certificate be cancelled or refused.174 The 2004 Act gives power to the Legal Practitioners Admissions Board, Law Society or Bar Association to require a person to undergo a health assessment if it believes the person 'may have a material physical or mental infirmity that may make the person unsuitable to engage in legal practice in ~ueens land ' . '~~ One or more health assessors can be appointed, at least one of who must be a medical practitioner. Assessors will be required to report any 'material physical or mental infirmity of the subject person and the extent, if any, to which the infirmity may make the person unsuitable to engage in legal practice'. '76

The health assessment is intended to be highly confidential. It can only be used as evidence in admission proceedings177 or in an appeal against a decision in relation to a practising certificate178 but cannot otherwise be used in any proceedings without the consent of both the lawyer and the health assessor.179 It must be destroyed after proceedings are finalised.l8' As in the Model ~ a w s ' ~ ' and in New South the discipline register is not to record that 'disciplinary action' was taken because of illness - it must only record the cancellation or suspension of the person's practising certificate, or regulation of practice.183 Given the Act's encouragement to deal with health issues through withdrawing or modifying a practising certificate rather than through discipline, and given a traditional reluctance to find that ill-health leads to dishonour and disgrace, such disciplinary proceedings should be rare.

173 Legal Practitioners Act 1981 (SA): Disciplinary action was brought against practitioners who had ceased to practice and who were suffering mental ill-health in Law S o c i e ~ of South Australia v Murph-Y (1 999) 201 LSJS 456 and Legal Practitioners Conduct Board v Trueman [2003] (2003) 225 LSJS 503. The Law Society may also appoint a manager to the practice. Restrictions upon the right to practise can also be imposed through the Legal Practitioners Conduct Board or the Tribunal. The only other option is to refer the matter to the court, seeking an order striking the practitioner fiom the roll: Email fiom David Milne, Legal Practitioners Registrar, South Australia, to Linda Haller, 8 May 2003. 174 QueenslandLaw Society Act 1952 (Qld) s 41A (repealed). '75 Legal Profession Act 2004 (Qld) s 533. 176 Legal Profession Act 2004 (Qld) s 535(2)(a). Assessors can also advise whether a condition on admission or on a practising certificate would make a person suitable for practice: s 535(2)b). '77 Legal Profession Act 2004 (Qld) s 537(2)(a). 17' Legal Pro@ssion Act 2004 (Qld) s 537(2)(b). '79 Legal Profession Act 2004 (Qld) s 537(3). 180 Legal Profession Act 2004 (Qld) s 538(4). Although the Legal Services Commissioner cannot rely on a health assessment obtained under the Act in any subsequent disciplinary hearing, presumably a lawyer can still choose to tender medical evidence in an attempt to explain or excuse their conduct or to show that a period of ill-health has passed and is unlikely to recur. 181 Model Laws, above n 1 , s 1 164. lS2 Legal Profesion Act 1987 (NSW) s 17 1 LF(3). lg3 Legal Profession Act 2004 (Qld) s 298.

432 Impefect Practice under the Legal Profession Act 2004 (Qld)

The issue of whether information about ill-health should be restricted is a vexed one. Practitioners may be more likely to seek help at an early stage and admit their health problems if the matter can be dealt with behind closed doors, and their recovery may be assisted if public embarrassment is avoided. However, there are also reasons why such issues not be hidden away. The most obvious reason is the need for transparency in the regulation of lawyers, but greater openness about the risk of ill-health may also play an important educative role. Anecdotal evidence suggests that mental ill-health and substance abuse are prevalent within the legal profession. A problem in managing such ill-health can include a denial of the problem or level of risk. As the primary aim of disciplinary proceedings is to protect the the public can be protected if lawyers are forewarned and educated as to the degree of risk of developing mental ill-health and the symptoms of ill-health. Individual case reports provide fellow lawyers with more compelling and sobering evidence of the risks than is provided by statistics alone. Private hearings and confidential reports make it more difficult to disseminate this evidence within the legal profession.

Perhaps these competing concerns could be reconciled by reporting cases involving ill-health without identifying the practitioner inv01ved.l~~ It is at least essential that the commissioner, Law Society and Bar Association be required to keep statistics of the number and type of cases in which the right to practise has been withdrawn because of ill-health.

The new Queensland system may not always work as planned. If a regulatory authority is concerned that a physical or mental infirmity is affecting a person's ability to practise, it can suspend that person's practising certificate and, on a challenge to that suspension, the health assessment can be admitted into evidence. Sometimes the regulator may prefer to allow a person to remain in practice pending disciplinary proceedings but, as the Act is currently fiamed, the health assessment cannot be used in disciplinary proceedings.186 Therefore, in the fbture the regulatory authority may need to suspend or cancel any existing practising certificate to force the hand of the lawyer so that subsequent proceedings will relate to the practising certificate rather than to discipline.

Similarly, the person may not be seeking a practising certificate, but the regulatory authority may still consider that his or her name should be removed from the r01l.l~~ Again, as the Act does not allow the regulatory authority to rely

184 Southern Law Society v Westbrook (1910) 10 CLR 609; Clyne v New South Wales Bar Association (1960) 104 CLR 186; New South Wales Bar Association v Evatt ( 1 968) 1 17 CLR 177; Harvey v Law Society of New South Wales (1975) 7 ALR 227. 185 Section 592(3) pennits the disclosure of information which does not identify or help in identifying a practitioner. la' Without the consent of the legal practitioner. 187 The reasons for taking disciplinary action in such circumstances could vary greatly. Some reasons will be more valid than others. In Queensland Law Society Inc v Smith [2001] 1 Qd R 649 the Supreme Court was satisfied that disciplinary action was justified as otherwise the solicitor could simply resume practice once he had complied with the conditions of his earlier suspension and obtained a practising certificate; cf Victorian Bar Incorporated v Himmelhoch [I9991 VSC 222 (Unreported, O'Bryan J, 18 June 1999) in which a barrister had


on the health assessment in disciplinary proceedings, in this latter example it would seem that no action could be taken to remove a person from the roll of legal practitioners unless and until the person applied for a practising certificate. la8

Rather than asking whether health issues make a person no longer 'suitable' for practice, the New South Wales legislation is framed more narrowly and only allows a practising certificate to be suspended or cancelled if the Law Society or Bar Association forms the view that an infirmity, injury or mental or physical illness means that the person is 'unable to carry out the inherent requirements of practice'189 and suspension or cancellation of that person's practising certificate would be in the public interest.lgO The Model Laws do not deal with the issue of medical reports, leaving this to be dealt with by each jurisdiction, so we are likely to continue to see state variation in this area.

VIII LAWYER REGULATION: A SNAPSHOT

The Act introduces a broad range of regulatory responses to sub-standard practice by barristers and this is very welcome, although extremely overdue. Conversely, enforcement powers for solicitors are now less pyramidal in structure than prior to the Act. For instance, while the previous regulating body for solicitors, the Queensland Law Society, had a number of powers it could use prior to using the 'big stick' of disciplinary action, the Act reduces the options available to the new regulator, the Legal Services Commissioner. In particular, the commissioner has not been given the power to issue reprimands or 'on the spot fines' even though the grant of such summary power was recommended. In even further distortion of a pyramidal structure, and bringing a distinct bulge to any pretence of a pyramidal shape, is the introduction of two disciplinary bodies with judicial power to determine disciplinary matters. While the intention appears to be that the Legal Practice Committee hear more minor matters, the relationship between it and the Legal Practice Tribunal is left ill-defined and, particularly given the history of a two-tier system in Queensland, it is difficult to see why Queensland has departed from the structure recommended by the Model ~ a w s . ' ~ l

The Act also continues a legislative trend of shifting the focus of the regulation of practising lawyers from discipline to tighter control of practising certificates.

Adult Attention Deficit Disorder exacerbated by an anxiety and depressive disorder. O'Bryan J refused to remove his name from the roll of practitioners given that the public was adequately protected by the cancellation of his practising certificate. Views may differ as to when denial of a practising certificate is sufficient and when it is appropriate to also initiate disciplinary action to remove the person's name from the roll. 188 Legal Profession Act 2004 (Qld) s 280(2)(b). This may be an area in which the court's inherent jurisdiction has a role to play. As Mortensen notes in his article, it is important that the court's inherent jurisdiction be preserved to cover gaps in the legislative framework: Mortensen, above n 32,324. 189 Legal Profession Act 1987 (NSW) s 38A (1A).

Legal Profession Act 1987 (NSW) s 38A(l)(b). In NSWBar Association v Murphy (2002) 55 NSWLR 23 Giles JA queried the need for the second limb of the test in s 38A, given that it could be presumed that it would always be in the public interest that unfit lawyers not practise: (2002) 55 NSWLR 23,34-5. 191 Model Laws, above n 1.

434 Impegect Practice under the Legal Profession Act 2004 (Qld)

While there has been much huffing and puffing by the Law Society about the loss of its role in prosecuting disciplinary matters, the Society retains extensive practical control over the right to practise law in Queensland, through its powers in relation to practising certificates.

The State Government is to be congratulated on making Queensland the first Australian jurisdiction to enact legislation based on the Model Laws. The Act introduces a number of very welcome reforms into Queensland, particularly the statutory regulation of barristers. As the Chief Justice notes, a lengthy purchase period preceded the passing of the ~ c t . ' ~ ~ Noone was surprised to see a Bill finally tabled before Parliament, but there was little time to comment on the Bill and it was presented by the Government as a fait accompli. The lack of opportunity to comment on the Bill may explain some of the gaps and inconsistencies. Other problems with the Act are more difficult to explain and suggest that lessons fiom the past are not always learnt.

192 de Jersey, above n 134,28 1.

imperfect practice under the legal profession act … · in this way, a regulator is seen as a ......

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