Investigation matters
The Legal Profession Act 2007 (the Act) authorises the Commissioner to receive and investigate complaints about the conduct of Australian legal practitioners, law practice employees, unlawful operators and ‘any person suspected of contravening the Personal Injuries Proceedings Act 2002, chapter 3, part 1’.
Importantly, it empowers the Commissioner to start an investigation without having received a complaint if the Commissioner ‘believes an investigation about a matter should be started’ (section 435). The Act refers to these investigations as ‘investigation matters’ but they are more commonly known as ‘own motion’ investigations.
The ‘investigation matter’ power is an important power to have given the Commission’s most fundamental purposes are to protect the rights of legal consumers and to promote high standards of conduct among lawyers and law firms. We can’t assume that consumers, even sophisticated repeat users of legal services will always be able to recognise unsatisfactory professional conduct or professional misconduct when they see it, or be able and willing to formally complain about it when they do, let alone (as sometimes happens but luckily only rarely) when their lawyers have taken pains to disguise it.
We need to be clear, however that the Commissioner doesn’t (and can’t) initiate an investigation matter on a whim – the Act doesn’t say so explicitly, but it empowers the Commissioner to start an investigation only if the Commissioner has reasonable grounds to believe that a lawyer or other person over whom the Commissioner has jurisdiction may have engaged in conduct that amounts to unsatisfactory professional conduct, professional misconduct or some other form of misconduct under the Act.
We initiate some investigation matters into conduct (or more accurately, into suspected misconduct) that comes to our attention incidentally, in the course of investigating complaints including unsubstantiated complaints about other matters. We initiate others as a result of information we obtain:
- during the course of a compliance audit of an incorporated legal practice;
- having received a trust account investigation report from the Queensland Law Society;
- having received a report from a court or tribunal about a lawyer’s conduct in the course of proceedings;
- having received a report about a lawyer’s conduct from the Criminal Justice Commission, the Director of Public Prosecutions, the Queensland Police Service, the Office of Fair Trading or other like agency;
- having read a report in the media about a lawyer or other person over whom we have jurisdiction; and
- having systematically reviewed print advertisements for law firms and law firm websites for compliance with the restrictions on the advertising of personal injury services;
and we deliberately target ‘problem’ practices, especially practices that appear to be widespread, which put consumers at risk – practices we have prioritised as headline issues.
We report what we are doing by way of investigation matters separately to complaints in our annual reports and provide relevant statistical information in our monthly performance reports.