The Legal Services Commission is an independent statutory body responsible for the regulation and discipline of the legal profession in Queensland. One of the statutory functions performed by the Legal Services Commissioner involves receiving enquiries and investigating complaints against legal practitioners, law practice employees, and unlawful operators.
A large portion of the Legal Services Commissioner's investigations stem from complaints made under the Legal Profession Act 2007 (the Act).
Section 435(1) of the Act gives the Commissioner power to pursue an 'investigation matter' on the Commissioner’s own initiative, including continuing with an investigation where a complaint has been withdrawn. These investigations are commonly known as “own motion investigations”.
The Commissioner does not require a named complainant or formal written complaint to commence an own motion investigation.
An own motion investigation may be commenced if the Commissioner receives information, and believes it is reasonable to commence an investigation.
Information for own motion investigations can be received from many difference sources such as:
- A court or tribunal reporting a lawyer’s conduct in the course of proceedings
- The Director of Public Prosecutions, the Queensland Police Service, the Office of Fair Trading or other like agency reporting a lawyer’s conduct
- A trust account investigation report
- A report in the media about a lawyer or other person over whom the Commission has jurisdiction
- A review of advertisements for law firms and law firm websites for compliance with the restrictions on the advertising of personal injury services, and
- An anonymous source.
Persons or organisations who report suspected conduct are not treated as complainants and are not required to be named in own motion investigations.
Before commencing any own motion investigation, the Commissioner will take into account a number of considerations such as:
- Whether the Commissioner has jurisdiction
- The nature and seriousness of the suspected conduct
- Whether another investigative body is the appropriate authority to conduct the investigation
- The means by which the Commissioner becomes aware of the conduct
- The promotion of public confidence in the legal profession
- The impact of the suspected conduct on the reputation of the profession
- The impact on the administration of justice
- Whether the person the subject of the information (the subject person) has a disciplinary or complaint history.
Once an own motion investigation has concluded and the Commissioner is satisfied it is reasonably likely that a decision body will make a finding of unsatisfactory professional conduct or professional misconduct, the Commissioner may make a Discipline Application to the Queensland Civil and Administrative Tribunal (QCAT) or the Legal Practice Committee, and cause a record of the investigation and decision to be kept. The investigation may be undertaken by the Commissioner or referred to the Queensland Law Society (QLS) or the Bar Association of Queensland (BAQ).
Once completed, any investigation findings from a matter referred to the QLS or BAQ are reported to the Commissioner.