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Professional discipline of legal practitioners

Steps in an application for disciplinary findings and/or orders in a matter about the conduct of a legal practitioner

Step 1: An application is made by a professional body or an individual about the conduct of a practitioner

Step 2: The applicant files an application form, an affidavit and any relevant documents

Step 3: The applicant serves (gives) a copy of the application to the practitioner

Step 4: The practitioner files and serves a reply by the deadline

Step 5: The parties take part in a directions hearing

Step 6: The parties take part in a hearing

Step 7:  If the practitioner fails to appear, the hearing may proceed despite his or her absence

Step 8: The Tribunal makes a decision 

Step 9: Costs are awarded

Step 10: The practitioner may consider whether they have grounds for appeal

Step 1 - An application is made by a professional body or an individual about the conduct of a practitioner

After receiving a complaint about a legal practitioner, the Legal Services Commissioner, the Council of the NSW Bar Association or the Council of the Law Society may apply to the Tribunal for an original decision. The Legal Services Commissioner, the Council of the NSW Bar Association or the Council of the Law Society of NSW can apply to the Tribunal for: 

  • disciplinary orders (s 551 and s 555 of the Legal Profession Act 2004)
  • directions not to engage in marketing of legal services (s 85)

The Council of the NSW Bar Association or of the Law Society of NSW can also apply to the Tribunal for orders:

 prohibiting the employment of a lay associate (s 18)

  • prohibiting partnership (s 19)
  • imposing or varying the conditions on a practising certificate (s 51 for a local legal practitioner and s 225 for a registered foreign lawyer)

 An individual can apply to the Tribunal for:

 the approval of a lay associate convicted of a serious offence (s 17(3))

  • the revocation of a prohibition on partnership (s 18)
  • removal of suspension by the holder of a local practising certificate (s 70)
  • leave to appeal a costs assessment or a costs award made by the Tribunal

Step 2 - The applicant files an application form, an affidavit and any relevant documents

The application form must be accompanied by an affidavit sworn by a competent person on behalf of the applicant. The affidavit must:

  •  identify the maker of the original complaint to which the application relates
  • give a brief description of the allegations of unsatisfactory professional conduct or professional misconduct on which the application is based
  • outline investigation of the complaint undertaken by the applicant
  • identify any person who investigated the complaint, or associated matters, and upon whose evidence the applicant relies
  • identify all reports and documents relating to the investigation, that the applicant intends to tender in evidence, and include true copies of these as annexes to the affidavit
  • establish that the person who is the subject of the complaint, was a legal practitioner to whom the Legal Profession Act 2004 applied at the time the alleged professional misconduct or unsatisfactory professional conduct occurred
  • list the orders sought

Step 3 - The applicant serves (gives) a copy of the application to the practitioner

As soon as practical after lodging an application, the applicant will serve the legal practitioner with a sealed copy of the application and all affidavits in support.

The NSW Civil and Administrative Tribunal Rules 2014 make provision for substituted service.

Step 4 The practitioner files and serves a reply by the deadline

The legal practitioner should file and serve a reply in the approved form within 21 days of service.

Step 5 The parties take part in a directions hearing

A directions hearing will be held at least 28 days after an application has been filed.

The applicant, during or before the directions hearing, will file and serve a chronology of the complaint, together with the names of any Council or Conduct Division members who have considered the complaint.

The Tribunal will make any directions for the filing and service of evidence and submissions and for any other directions that are preliminary or orders necessary to make the case ready for hearing.

The parties may agree to a written timetable which they submit to the Tribunal for approval. To be approved, the timetable needs to allow for substantive proceedings to be listed for hearing within six months of the date the original application was filed. The fact that a preferred legal representative is not available for either party, will not generally constitute sufficient reason to schedule a hearing outside the time standards.

Step 6 - The parties take part in a hearing

The legal practitioner may only present evidence of matters which they included in their reply, unless the Tribunal gives leave for them to present other evidence.

Three members of the Tribunal will hear cases brought by professional bodies. These members will be a senior judicial member, a practitioner member and a lay member; or, two practitioner members and a lay member.

The Divisional Head will decide on the composition of the panel for applications for:

  • approval of associates convicted of a serious offence: s 17(3)(c)
  • the imposition of conditions on practising certificates: s 51 & s 225
  • removal of suspension of practising certificates: s 70(3)
  • Contraventions of advertising under s 85 will be heard by one judicial member.

Step 7 - If the practitioner fails to appear, the hearing may proceed despite his or her absence

The Tribunal may conduct a hearing of an application despite the failure of the legal practitioner to appear, provided the following matters are proved to the satisfaction of the Tribunal:

  • that the application and supporting documents were served to the legal practitioner
  • that the time provided for filing a reply, or any extension of that time ordered by the Tribunal, has expired
  • that the time specified for compliance by the parties with any directions made by the Tribunal, has expired
  • sufficient notice of the hearing has been given to the legal practitioner

Step 8 - The Tribunal makes a decision

The Tribunal can make a number of orders, as specified in the Legal Profession Act 2004.

If, after a hearing, the Tribunal is satisfied that the legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit. Orders can be made without a full hearing, if an instrument of consent is filed. The following are examples of some of the orders the Tribunal may make: 

  • an order that the name of the practitioner be removed from the local or interstate roll ('struck off')
  • an order that the practitioner’s local or interstate practising certificate be suspended or cancelled; or that conditions be imposed on the practising certificate  
  • an order that a local or interstate practising certificate not be issued to the practitioner before the end of a specified period
  • an order reprimanding the practitioner
  • an order imposing a fine of up to $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct; or $75,000 in the case of professional misconduct.

the Tribunal also has a limited power to make a compensation order against a practitioner.

For the complete list of possible outcomes in applications for disciplinary findings and or orders, see s 562 of the Legal Profession Act 2004.

Step 9 - Costs are awarded

Costs awards in cases involving the discipline of legal practitioners are governed by s 566 of the Legal Profession Act 2004. According to the Act:

  • the Tribunal must make costs orders against a legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct, unless exceptional circumstances exist  
  • the Tribunal may make costs orders against a legal practitioner whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct, if certain circumstances apply
  • the Tribunal may make orders that a legal practitioner’s costs be covered by the Public Purpose Fund, if certain circumstances exist.

See s 566 of the Legal Profession Act 2004 for full details.

The NSW Civil and Administrative Tribunal Act 2013 makes provision for the enforcement of costs orders.

Step 10 - The practitioner may consider whether they have grounds for appeal

Practitioners can appeal to the Supreme Court against orders and decisions of the Tribunal, however leave of the Supreme Court is required to appeal against interlocutory decisions; decisions made with consent; and decisions as to costs.