ILP investigations
The legal practitioner director(s) and any other legal practitioners who provide legal services on behalf of an ILP have the same professional obligations as all other Australian lawyers. We will respond to complaints that allege they have breached their professional obligations as lawyers and initiate ‘own motion’ investigations in the same way we respond to complaints and initiate ‘own motion’ investigations into the conduct of any other lawyer.
The Legal Profession Act 2007 (the Act) imposes additional obligations on the legal practitioner director(s) of an ILP, however, and specific obligations on its other directors and employees and indeed on the corporation itself, and it describes the disciplinary, criminal and civil sanctions that can apply when legal practitioner directors, other directors, employees or the corporation itself contravene their obligations.
ILP investigations are investigations we initiate of our own motion or in response to complaints that allege legal practitioner directors or other directors or employees of an ILP have contravened their ILP specific obligations, or that a corporation has contravened its ILP specific obligations.
Contraventions of the Act by legal practitioner directors capable of constituting unsatisfactory professional conduct or professional misconduct
The LSC might decide to investigate, either in response to a complaint or of its own motion, any of the following alleged or suspected conduct by a legal practitioner director of an ILP which, if proved, might amount to unsatisfactory professional conduct or professional misconduct:
- failure to keep and implement appropriate management systems to enable the provision of legal services by the practice in accordance with a practitioner’s professional obligations (section 117).
- failure to take all reasonably available action to ensure that other legal practitioners who provide legal services on behalf of an ILP honour their professional obligations and to take appropriate remedial action in the event of such breaches (section 118)
- any unsatisfactory professional conduct or professional misconduct by an employed legal practitioner of the practice - creating a form of vicarious liability (section 118)
- any conduct of a non-legal practitioner director of the practice that adversely affects the provision of legal services - also creating a form of vicarious liability (section 118)
- the unsuitability of a non-legal practitioner director to be a director of the corporation providing legal services - if, for example, an ILP has as a director a former legal practitioner who has been removed from the roll, or ‘struck off’ (section 118)
- contravention of the disclosure obligations when a person engages an ILP to provide services the person might reasonably assume to be legal services (section 123)
- contravention of the requirements relating to advertising (section 126), and
- failure to assist in an investigation or to ensure that an employee or officer complies with a requirement of an ILP investigator during an investigation (section 574).
Contraventions of the Act that make legal practitioner directors and / or ‘executive officers’ of an ILP or the ILP itself liable to criminal and/or disciplinary sanction
The LSC might decide to investigate, either in response to a complaint or of its own motion, any of the following alleged or suspected conduct by a legal practitioner director or executive officer of an ILP, or an ILP itself which, if proved, might amount to unsatisfactory professional conduct or professional misconduct on the part of a legal practitioner and/or a criminal offence:
- failure to lodge the required notice of intention to start engaging in legal practice as an ILP prior to prior to engaging in legal services (section 114)
- representing or advertising a legal practice as an ILP before lodging a notice of intention to start engaging in legal practice as an ILP (section 115)
- failure to lodge a notice of termination of the provision of legal services after an ILP stops engaging in legal practice (section 116)
- engaging in legal practice as an ILP without the ILP having a legal practitioner director for a period exceeding 7 days (section 119)
- failure by an ILP to meet its professional indemnity insurance obligations under the Act (section 121)
- permitting a disqualified person to be engaged or paid to provide legal services by the ILP or to be an officer or employee or to share receipts or other income arising from the provision of legal services by the ILP or to be a partner of the ILP in a business that includes the provision of legal services (section 129)
- providing legal services in contravention of a banning order (section 132), and
- cause or induce, or attempt to cause or induce a legal practitioner director or legal practitioner who provides legal services for an ILP to contravene the practitioner’s professional obligations (section 143).
Powers of investigation
The LSC has the same powers of investigation in relation to ILP investigations as it has in relation to complaints and investigation matters generally (sections 540-568), but also some additional powers (sections 569-574). The additional powers include powers:
- to audit an ILP to ensure its compliance with the Act
- to examine persons
- to inspect the books of the ILP, and
- to hold hearings for the purposes of an investigation or audit.