The Legal Services Commission receives and investigates complaints against members of the legal profession, their employees and unlawful operators.
When a complaint is received by the Legal Services Commission it is assessed for its eligibility under the Legal Profession Act 2007 (the Act) before it is accepted. The Legal Services Commissioner has the power to dismiss complaints if they:
- do not disclose conduct that is covered in the Act
- are ‘frivolous, vexatious, misconceived or lacking in substance’
- have already been dealt with and there is no reason for further consideration
- are over three years old.
If a complaint contains sufficient information and clearly falls under the jurisdiction of the Legal Profession Act 2007 (the Act), the Legal services Commissioner is obliged to investigate the conduct.
The Commissioner may conduct investigations or refer them to the Queensland Law Society (QLS) or the Bar Association of Queensland (BAQ), to be carried out under the Commissioner’s direction and control.
The final decision as to whether a discipline application is pursued rests with the Commissioner. From 1 September 2015 by agreement with the QLS all complaints will now be investigated by the Legal Services Commission. The Commissioner will continue to refer matters at her discretion to the BAQ.
Note: Neither the QLS or BAQ has the power to decide how investigations should be concluded, or to initiate disciplinary proceedings. The QLS and BAQ report their findings and recommendations to the Commissioner. The Commissioner is responsible for final review and any decision.
If you are the subject of a complaint, you will be informed in writing when an investigation is commenced into a conduct complaint or an investigation matter against you.
The commencement of an investigation in no way implies that the complaint is justified, or that there has been any impropriety.
You will be provided with a reasonable time and opportunity to reply to the complaint or to otherwise make submissions.
The investigation will often be conducted via correspondence, however on occasions you may be asked to produce your file or other documents, or the Commission may contact witnesses and take statements.
Often a prompt and detailed response from the legal practitioner will assist the matter come to a swift conclusion. The Act requires the investigating body to inform you of:
- the nature of the matter(s) raised in the complaint now subject to investigation
- anything the complainant has done in relation to the complaint before writing to you
- the identity of the person who made the complaint:
- for conduct complaints, a legal consumer, other legal practitioner, QLS or BAQ
- for investigation matters, the Commission.
All investigations conducted by the Legal Services Commission must demonstrate procedural fairness. For this reason a practitioner’s response will usually be provided to the complainant.
The Commissioner has substantial powers of investigation, including (but no limited to) the power to demand:
- A full explanation of the matter(s) subject to investigation, in writing or in person, although lawyers can refuse to disclose information that might incriminate them or that would contradict or invalidate a professional indemnity insurance policy.
- That you produce any document in your ‘custody’, possession or control’ that you are required at law to produce.
The Legal Services Commission strives to make requests in a courteous and respectful manner.
The Commissioner may take disciplinary action if a legal practitioner does not provide a response as directed or if the response provided is inadequate.
The Legal Profession Act 2007 (the Act) requires legal practitioners being investigated to provide the Commission with ‘reasonable help’ throughout the course of the investigation.
The Act also states it is an offence to ‘obstruct an investigator in the exercise of a power [without] a reasonable excuse’.
The courts and disciplinary tribunals have reinforced the point. The Solicitors Complaints Tribunal commented in the matter of Whitman in 2003 that ‘a solicitor has a duty to be truthful even to his own detriment, and not just a duty to be truthful but a positive duty to be full and frank and for his answers to be candid as well as truthful’.
The Court of Appeal observed in the same matter on appeal that ‘neither the investigation [nor any subsequent disciplinary] hearing is criminal in nature – it is a process directed towards protection of the public. Recognising that, a practitioner is duty bound to cooperate reasonably in the process.’
Both judgments can be accessed under Disciplinary Decisions.
Note: Failure to comply with a request from the Commissioner may amount to professional misconduct.