4.1 This Chapter deals with issues that arise during the investigation of complaints about lawyers, including the time limit for making complaints, whether complaints against law firms (as opposed to individual practitioners) should be dealt with under Part 10 and issues relating to investigations. This Chapter also considers the requirements of procedural fairness, the investigative powers of the Legal Services Commissioner (the “LSC”), the Law Society Council and the Bar Council, the transfer of complaints and the effect of non-compliance with the procedural requirements of Part 10 of the Legal Profession Act 1987 (NSW) (the “LPA”).
TIME LIMIT
4.2 While complaints can be made at any time, a complaint cannot be made more than three years after the conduct is alleged to have occurred unless a determination is made to accept it. Determinations are made by the LSC, except where a Council makes a complaint. In this case the Council also determines whether or not to accept the complaint.1
4.3 There are two grounds for determining to accept a complaint about conduct which occurred more than three years earlier. First, the complaint may be accepted where it is just and fair to deal with the complaint having regard to the length of the delay and the reasons for delay in making the complaint.2 Secondly, the complaint may be accepted where it involves an allegation of professional misconduct, and it is in the public interest to deal with the complaint.3
4.4 In the Issues Paper (IP 18), the Commission asked whether there should be a time limit for making complaints, and if so, whether the time limit should apply to complaints initiated by the Councils and the LSC, how long the time limit should be and when time should start to run (Issues 5-8).
Should there by a time limit?
4.5 Arguably, misconduct is always relevant to a practitioner’s fitness to practise, regardless of when it occurred. On this view, the time lapse between alleged misconduct and the complaint should not affect the power to conduct an investigation, although it may be relevant to the sanction imposed if the complaint is upheld.4
4.6 Several submissions argued that no time limit should be imposed. It was argued that a time limit is unfair because it sometimes takes time, often many years, to identify clearly the grounds for a complaint, especially for lay complainants.5 Other submissions claimed that the LSC and Councils misuse the time limit.6
4.7 On the other hand, imposing a time limit on complaints has several functions. First, a time limit protects practitioners against potential oppression and injustice in the case of delayed complaints.7 Indirectly, this also contains the cost of legal services, which would increase if practitioners were exposed to liability unlimited as to time and required to insure accordingly.
4.8 Secondly, the time limit serves an evidentiary purpose, since investigating complaints about conduct alleged to have occurred a very long time earlier is hampered by difficulties in gathering evidence and assessing its reliability. Related to this is the practical need to limit the obligation on practitioners to preserve potential evidence.
4.9 Time limits also reflect the expectation that people will be reasonably diligent in making complaints and provide an incentive for this.8 The Legal Aid Commission argued that the time limit should be retained because strict time limits currently apply to summary criminal matters which, arguably, attract more serious sanctions than complaints against practitioners heard by the Legal Services Division of the Administrative Decisions Tribunal (the “Tribunal”).9
How long should the time limit be?
4.10 A longer limitation period (mostly of six years but ranging from five to seven years) was supported in a number of submissions.10 It was submitted that in many instances, misconduct may not become apparent within three years. This could occur because of the nature of the legal service provided. For example, litigation often takes longer than three years to complete.11 Other submissions pointed out that complainants from culturally and linguistically diverse backgrounds, people with disabilities and people who are unfamiliar with the options for complaining about lawyers may take longer than three years to respond to conduct that may give rise to a complaint.12
4.11 Two submissions argued that the time limit for making complaints should not be increased.13 It was submitted that increasing the time limit would compromise fair hearings, due to problems obtaining and assessing evidence. This is especially so as retainer agreements commonly authorise solicitors to dispose of files after seven years from giving instructions, or after completion of instructions and retirement of the file.
4.12 The Commission’s previous Report on the system for dealing with complaints against lawyers recommended that the time limit for complaints should be six years.14 The exposure draft version of the bill to introduce Part 10 into the LPA included a six year time limit.15 It is not clear why the time limit was subsequently altered.
4.13 Part 6 of the LPA deals with solicitors’ obligations in relation to money received on behalf of clients (trust accounting). The Law Society is empowered to appoint an inspector or investigator to conduct an inspection or investigation of a solicitor’s trust accounts.16 Solicitors are required to maintain trust accounting records for six years.17 This means that the time limit for trust account inspections and investigations is effectively six years.
When should time start to run?
4.14 The time limit for making complaints starts on the date when the conduct is alleged to have occurred.18 An alternative, which was supported in a number of submissions, would be for time to run from the time that the complainant became aware of the alleged misconduct.19 There is of course an analogous debate at common law.20
4.15 Where the existence of a cause of action based on fraud (or the identity of a person against whom a cause of action for fraud is available) is fraudulently concealed, time starts to run from the date on which the fraud was discovered, or could, with reasonable diligence, have been discovered.21 It was argued that a complaint against a practitioner is analogous to a cause of action for fraud.22 The Commission does not accept that the analogy between complaints against lawyers and civil actions for fraud is appropriate.23
4.16 It was also argued that a time limit which ran from the time that the complainant became aware of the alleged misconduct would be fairer to consumers of legal services and would reflect the fact that consumers often need time to understand that misconduct has occurred and seek appropriate guidance as to the options for making a complaint and obtaining redress.24
4.17 Other submissions argued that the date on which time starts to run should not be changed.25 It was argued that the current discretion to waive the time limit adequately covers any unfairness in its application.26
Complaints made by the LSC and the Councils
4.18 In Barwick v Law Society of New South Wales the High Court considered the status of a complaint initiated by the Law Society Council about conduct which occurred outside the time limit.27 The Law Society Council had not obtained a determination from the LSC waiving the time limit (as was then required by Part 10).28 The Council argued that the time limit should not apply to complaints initiated by the LSC or a Council because the very fact that the complaint was initiated by the LSC or Council was sufficient to ensure that it was properly brought.29 The Court rejected this argument, holding that complaints initiated by the Law Society Council were also subject to the time limit.30
4.19 Part 10 was amended in response to this decision to provide that where a Council makes a complaint which is out of time, the Council must decide whether to waive the time limit. Similarly, where the LSC makes an out of time complaint, the LSC must make the relevant determination.31
4.20 Consistently with its argument in Barwick, which was rejected by the High Court, the Law Society submitted that there should be no time limit on complaints made by the Councils or the LSC.32 The Bar Association also argued that complaints by the LSC and the Councils should not be subject to any time limit.33 Other submissions argued that the time limit should apply to all complainants, including those made by the LSC and the Councils.34
Other jurisdictions
4.21 There is no statutory time limit on complaints in the Australian Capital Territory, the Northern Territory, South Australia, Tasmania or Western Australia. In Queensland, complaints must be made within 3 years of the conduct complained of.35 In Victoria, the time limit is 6 years from the date that the conduct allegedly occurred, except in relation to costs disputes, where the time limit is 6 months.36
Recommendations
4.22 The Commission’s view is that there should be a time limit on making complaints. A time limit protects practitioners against the oppression and injustice of delayed complaints. It also protects consumers from the increased cost of services that would be associated with requiring practitioners to insure for an indeterminate period. A time limit also reflects the evidentiary difficulties associated with dealing with very old complaints and creates an incentive to consumers to make timely complaints.
4.23 The Commission recommends that the time limit for complaints should be increased from three years to six years. Increasing the time limit to six years would better reflect the time needed by many complainants to identify misconduct and obtain information about their options for redress. This applies particularly (though not exclusively) to complainants engaged in litigation, people from culturally and linguistically diverse backgrounds and people with disabilities.
4.24 The Commission does not accept that time should run from the date on which the complainant first becomes aware of the alleged misconduct. The Commission is satisfied that the discretion to waive the time limit for making complaints provides adequate protection against unfairness in situations where a complainant needs longer than six years to identify the alleged misconduct and obtain information about the process for making a complaint.
4.25 Nor does the Commission accept that the time limit should be removed in its application to complaints made by the Councils and the LSC. The Commission’s view is that the purposes of a time limit discussed in paragraphs 4.7-4.9 above apply in relation to all complaints, including complaints made by the Councils and the LSC.
4.26 The Commission recommends that the Tribunal should have power to extend the time limit for complaints under Part 10. The Commission’s view is that a fairly conducted Tribunal hearing on the question of extending the time limit would be more appropriate than leaving the question to the LSC and the Councils. This would ensure consistency with the extensive body of common law on the circumstances in which a discretion to extend a time limit should be exercised.37 It should be noted that in Chapter 6, the Commission recommends that the Government should consider altering the composition of the Tribunal.38
4.27 The LSC and the Councils should be permitted to apply to the Tribunal for an order that the time limit be extended in relation to a particular complaint for a specific period. The Tribunal should also have the power to permit the LSC or relevant Council to conduct a preliminary investigation to establish whether or not there is any substance to a complaint. Failure to co-operate with a preliminary investigation of this nature should constitute professional misconduct in the same way as provided for in the investigation of timely complaints. The practitioner should also be permitted to be a party to an application for an extension of time.
4.28 Where a complaint is made following a conviction for a criminal offence involving behaviour capable of constituting professional misconduct, or in respect of which a custodial sentence is imposed, the reasons for imposing a time limit are less convincing. Stringent rules ensure the fairness of criminal trials and the standard of proof, of course, is beyond reasonable doubt. Necessarily, there will have been a substantial and independent investigation preceding the trial. A complaint that follows a conviction does not depend on the motives or idiosyncrasies of a complainant. However, the Commission considers that the Tribunal’s power to extend time in appropriate cases makes it unnecessary to provide for an exception in these circumstances.39
Recommendation 5
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to give the Tribunal the power to extend the time limit in relation to a particular complaint on the application of the LSC, the Law Society or the Bar Association. The practitioner should also be permitted to be a party to an application for an extension of time.
Recommendation 6
The Tribunal should also have the power to permit the LSC, the Law Society or the Bar Association to conduct a preliminary investigation to establish whether or not there is any substance to a complaint. Failure to co-operate with a preliminary investigation of this nature should constitute professional misconduct.
COMPLAINTS AGAINST LAW FIRMS
4.29 Complaints under Part 10 must relate to the conduct of an individual practitioner. It is not currently possible to make a complaint against a firm of lawyers.40
4.30 Legislation enacted late in 2000 provides for the incorporation of legal practices in New South Wales.41 This legislation is expected to commence operation in mid 2001 following the drafting of regulations, which is currently under way.42
4.31 The legislation provides that an incorporated legal practice (ILP) must have at least one solicitor director who is responsible for the management of legal services provided by the ILP in New South Wales.43 A solicitor director must ensure that appropriate management systems are implemented and maintained to ensure that the ILP complies with the professional obligations of solicitors, ensure that the conduct of other directors and employed solicitors that contravenes or is likely to contravene professional obligations is promptly reported to the Law Society Council, and take all reasonable action to deal with misconduct by employed solicitors.44 A solicitor director must not remain as a director of an ILP if it becomes apparent that the provision of legal services by the ILP will result in breaches of the professional obligations of solicitors.45 Non-compliance with these obligations constitutes professional misconduct.
4.32 In IP 18 the Commission asked how complaints against firms and ILPs should be dealt with (Issue 9).
4.33 Several submissions argued that Part 10 should cover complaints against law firms as well as individuals.46 The Office of the LSC (the “OLSC”) submitted that where legal work is performed by several practitioners in a firm over a period of time, it can be difficult to establish misconduct by an individual practitioner. It was also argued that Part 10 should cover complaints against firms in order to address misconduct which is not attributable to an individual practitioner, but rather indicates systemic improper practice. These submissions emphasised the consumer redress aspect of the complaints system.
4.34 Other submissions argued that personal culpability is an essential element of misconduct.47 These submissions focused on the disciplinary function of the complaints system.
Other jurisdictions
4.35 In the Australian Capital Territory, the Northern Territory, Queensland and Western Australia, complaints must be made against individual lawyers.48 In Victoria complaints may be made about individual lawyers, law firms which are partnerships, and incorporated firms.49 In South Australia and Tasmania complaints may be made against individual lawyers and companies. 50
The Commission’s view
4.36 It is well established at common law that supervisory failure by a practitioner may constitute misconduct. For example, a partner’s failing to supervise the financial controls in a partnership, to ensure that proper financial systems were in place, and leaving financial management to another partner in circumstances giving rise to apprehension about the partner’s misuse of a joint trust account, has been held to amount to misconduct.51 Failing to supervise the activities of an unqualified clerk has also been held to amount to misconduct.52 Finally, failing to exercise a reasonable standard of supervision and attention to the affairs of the firm as a whole has also been held to amount to misconduct.53
4.37 The Commission’s view is that Part 10 should focus on the conduct of individual practitioners. This is consistent with the approach taken in relation to ILPs, which focuses on management and supervision by a solicitor director.
INVESTIGATIONS
Independent investigations
4.38 While complaints are generally investigated by the Councils, or, in some cases, by the LSC, Part 10 also provides that a Council may request the LSC appoint an independent investigator. The independent investigator must report to the Council. The Council is then required to make a decision on the complaint.54 In a preliminary submission, the Bar Association pointed out that Councils have no input into the investigation and no monitoring role once an independent investigator has been appointed.55
4.39 In IP 18 the Commission asked whether independent investigators should be required to report to the LSC, and whether the LSC should be required to decide how to deal with complaints investigated by independent investigators (Issue 12). Submissions received in response to IP 18 generally supported this.56 The Commission recommends that independent investigators should be required to report to the LSC, rather than the Council. The LSC, rather than the Council, should be required to make a decision on a complaint which has been investigated by an independent investigator. This process would increase the level of independence in relation to these complaints.
Recommendation 7
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to provide that, where a complaint is investigated by an independent investigator under s 151, the independent investigator must report to the LSC, and that the LSC must make a decision under s 155 on the complaint.
Additional complaints
Current procedure
4.40 Informations laid in the Tribunal must contain allegations specifically nominated in a complaint and investigated in accordance with Division 5 of Part 10.57 Therefore, whenever an additional complaint arises during the course of an investigation, the LSC or relevant Council is required to make an additional complaint and conduct a further investigation. An additional complaint may relate to alleged conduct which occurred more than three years earlier. In this situation, for the additional complaint to proceed, the LSC or Council must also make a determination to waive what is currently the 3 year time limit.58
4.41 The Tribunal can vary an information to include additional allegations.59 Variation is not precluded because the alleged conduct which is sought to be added occurred more than three years earlier.60
Problems with the procedure
4.42 The High Court has criticised the procedural requirements for dealing with additional complaints.61 A number of preliminary submissions also argued that the requirements are highly technical and artificial, create procedural difficulties in the administration of Part 10, waste resources and cause unnecessary delays.62 In IP 18 the Commission asked whether the requirements should be modified (Issue 13).
4.43 Submissions generally supported the amendment of Part 10 to effect a clear division between making complaints, investigations and the jurisdiction of the Tribunal, so that investigations were not confined to matters raised in the original complaint.63
Recommendation
4.44 The Commission views the current requirements in relation to additional complaints as excessively technical and artificial. The Commission recommends that Part 10 should be amended to effect a clear division between complaints and investigations. The LSC and the Councils should be empowered to investigate, and make determinations about, additional complaints that arise in the course of an investigation without the need to initiate a separate complaint and conduct a separate investigation. However, the Commission emphasises that the LSC and Councils must ensure that the rules of procedural fairness are applied to all complaints, including additional complaints.
Recommendation 8
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to enable the LSC, the Law Society and the Bar Association to investigate, and make determinations about, additional complaints that arise in the course of an investigation into a complaint, without the need to initiate a separate complaint and conduct a separate investigation.
The requirement for a formal investigation
4.45 A formal investigation must always be undertaken before the LSC or a Council can refer a matter to the Tribunal.64 In a preliminary submission, the OLSC suggested that situations arise where the LSC or relevant Council can be satisfied that there is sufficient evidence to institute Tribunal proceedings against a practitioner without having to undertake a formal investigation into a complaint.65 In IP 18 the Commission asked whether the LSC and the Councils should be able to institute Tribunal proceedings other than by conducting an investigation into a complaint (Issue 14).
4.46 Submissions generally supported streamlining the investigative process in certain circumstances, on the basis of expedience.66 It was submitted that the requirement for an investigation should be dispensed with where a practitioner has been convicted of a criminal offence.67 Submissions also argued that the need for a Part 10 investigation should be dispensed with in relation to complaints arising from an audit of a solicitor’s records by a trust account inspector.68
4.47 The Commission’s view is that where a practitioner has been convicted of a criminal offence, or a trust account inspector’s report identifies misconduct, the requirement that the LSC or Council conduct an investigation can often be satisfied by evaluating the judgment of the court or the inspector’s report, providing the practitioner with a copy of the complaint and giving the practitioner an opportunity to respond to it. However, the investigative stage cannot be completely eliminated without compromising the requirements of procedural fairness.
Client legal privilege
4.48 Confidential communications between a practitioner and client are not admissible as evidence in court. This is known as client legal privilege.69 The purpose of the privilege is to preserve the confidentiality of communications between practitioner and client and thereby encourage clients to make full and frank disclosure to their lawyers of the circumstances that are relevant to their case.70 This privilege belongs to the client and accordingly it may only be waived by the client, not by the practitioner, except on instructions.71
Exceptions to client legal privilege
4.49 There are two limited exceptions to client legal privilege under Part 10. First, practitioners must comply with a requirement to answer questions or produce information or documents if the client is the complainant or the client consents to the disclosure.72 Secondly, practitioners may disclose information to the LSC, a Council or the Tribunal in breach of client legal privilege if it is necessary to rebut an allegation in a complaint.73
4.50 In IP 18 the Commission asked for submissions on the exceptions to client legal privilege in Part 10 (Issue 15).
Submissions
4.51 Submissions generally favoured extending the existing exceptions to client legal privilege, arguing that this would improve the ability of the Councils and the LSC to investigate complaints and obtain evidence against practitioners who have committed misconduct.74 For example, it was submitted that under the current exception the Councils and the LSC are not able to investigate complaints where it is alleged that a lawyer and a client have been jointly involved in misconduct. In this situation, the client can obstruct an investigation by refusing to waive client legal privilege.75
4.52 One submission argued that the exceptions to client legal privilege should not be expanded.76 This submission relied on the undoubted law that evidence of communications made or documents prepared by a lawyer and client in furtherance of a fraud, offence or act which gives rise to a civil penalty is not protected by client legal privilege.77 It was also argued that the powers of trust account inspectors are adequate to enable the Law Society to conduct investigations.78 This submission argued that the privilege is an important right which should be preserved.
Other jurisdictions
4.53 Regulators in all Australian jurisdictions can require a lawyer who is the subject of a complaint to co-operate with an investigation.79 In Tasmania, a lawyer cannot rely on legal professional privilege as a reason for failure to co-operate with an investigation into their conduct unless the written consent of the client is provided.80 Victorian lawyers cannot rely on legal professional privilege as a reason for failure to co-operate with an investigation.81
Recommendation
4.54 The Commission considers that the public interest served by client legal privilege as explained by the majority of the High Court in Baker v Campbell82 and Carter v Northmore83 is of fundamental importance in the administration of justice and does not accept that the exceptions to the privilege in Part 10 should be extended. If the privilege (rightly) will not be qualified even to prosecute for serious criminal offences, it is difficult to see how it is appropriate to remove it in disciplinary proceedings.
4.55 A number of practical problems, moreover, would arise if disclosure were permitted. It would be virtually impossible in any case for a lawyer to assure the client of confidentiality, since there would always be a risk that a complaint made by another person could require exposure of otherwise privileged communications. It is worth noting that in some areas of emotionally charged litigation, such as family law disputes, allegations of misconduct are often made by one party against the lawyers retained by the other party. It would be completely inappropriate to enable this device to be used to obtain exposure of that party’s privileged communications.
4.56 A more appropriate way of addressing this issue would be to encourage waiver of client legal privilege by providing for restrictions on the use of information that is subject to client legal privilege and is disclosed in the course of an investigation under Part 10. This could be done by amending Part 10 to provide that the LSC and Councils can give undertakings to maintain the confidentiality of information subject to client legal privilege. Such information would be disclosed to investigators and the Tribunal, but not to the complainant. The Tribunal could also be empowered to make confidentiality orders in relation to information that is subject to client legal privilege. The powers of the Tribunal are discussed in Chapter 6, which includes a recommendation that the Tribunal should not be bound by the rules of evidence.84
4.57 Section 171P of the LPA deals with the improper disclosure of information obtained in the administration of Part 10. Improper disclosure is an offence punishable by a fine of $1,100 or up to six months’ imprisonment. Disclosure of information subject to client legal privilege in contravention of an undertaking or Tribunal order would constitute improper disclosure.
Recommendation 9
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to permit the Legal Services Commissioner, the Law Society and the Bar Association to give undertakings to maintain the confidentiality of information subject to client legal privilege which has been waived and disclosed during the course of an investigation.
4.58 The Commission is unaware of any case in which a practitioner has sought to use s 171S(2) of the LPA to disclose confidential communications of clients other than the complainant. In its earlier Report, the Commission recommended that a practitioner who must disclose a communication otherwise subject to client legal privilege in his or her defence should be permitted to do so. It is clear from the discussion that the only confidential communications covered by this recommendation concerned those confidential to the complainant. The provision, however, on one reading, appears to remove the privilege of clients other than those making the complaint and, possibly, of practitioners other than the one under investigation where he or she needs to do so to rebut an allegation in the complaint. Such a destruction of client legal privilege is a fundamental change to the common law as clearly and authoritatively declared in the High Court. It is most unlikely that it was intended by the drafter to have this effect. Certainly, this is not what the Commission recommended. In Baker v Campbell,85 Chief Justice Gibbs (in a dissenting judgment) cited with apparent approval English authority for the proposition, which was acknowledged as novel, that legal professional privilege would give way to establish a defence in a criminal trial.86 This view was decisively rejected by the High Court in Carter v Northmore87 where it was held (by majority) that a person who has possession of documents subject to client legal privilege which is not waived cannot be compelled to produce them on subpoena issued on behalf of an accused person in criminal proceedings even though it may establish the innocence of the accused or materially assist the defence. In that case, Justice Brennan concluded that:
(as) the purpose of the privilege is to facilitate the application of the rule of law in the public interest, it is not possible to allow the interest of an individual accused to destroy the privilege which is conferred to advance that public interest.88
4.59 It would be inappropriately anomalous if a person charged with a serious (or, indeed, any) criminal offence could not require a disclosure in breach of client legal privilege to defend the charge but a practitioner defending disciplinary proceedings could do so. Of course, the privilege of the complainant is in a completely different category. It is almost certainly waived under the common law, at all events, by making a complaint which cannot be fairly evaluated without disclosure of the privileged communication.89 Section 171S(2) should be amended to make it clear that the only matter which may be disclosed despite the client legal privilege is matter otherwise subject to the privilege of the complainant.
PROCEDURAL FAIRNESS
4.60 One of the express objects of Part 10 is to ensure that the rules of procedural fairness are applied to all disciplinary proceedings against practitioners.90 It is uncontentious that practitioners should be afforded procedural fairness throughout the complaints process – the common law would require this even if the LPA was silent. The threshold question is what aspects of procedural fairness should be specified in Part 10 for the purpose of clarity.91
4.61 In IP 18 the Commission asked what should be required by Part 10 in order to clarify the requirement of procedural fairness to the practitioner and the complainant when the LSC or a Council decides how to deal with a complaint (Issue 16).92
Providing the practitioner with a copy of the complaint
4.62 In Murray v Legal Services Commissioner,93 the New South Wales Court of Appeal held that procedural fairness requires that before a decision is made under s 155 of the LPA, the practitioner who is the subject of the complaint must be given a copy of the complaint and an opportunity to respond to it. Failure to do so vitiates the institution of Tribunal proceedings.
4.63 Several submissions criticised this requirement.94 Most complaints made to the LSC are by lay persons. It was submitted that complaints may include unnecessary or irrelevant material or personal and offensive comments which make it difficult for practitioners to respond appropriately and inhibit further investigation and dispute resolution. Some complaints contain allegations that may be summarily dismissed and require no response from the practitioner.
4.64 It was also submitted that some legal consumers do not have the skills or resources to formulate their complaints well and their submissions to the complaints handling authority should, therefore, remain confidential.95
4.65 According to these submissions, procedural fairness should be satisfied by providing the practitioner with a document setting out the substance of the complaint.
4.66 Others argued that practitioners should receive a full copy of the original complaint in all cases.96 It was submitted that fairness requires that the practitioner should receive a full copy of the original complaint, and that summarising a complaint may change or misrepresent a complainant’s grounds for concern and lead to the dismissal of the complaint on grounds other than those intended in the original complaint. At all events, it would be virtually impossible to prevent the subpoena of and access to the complaint by a practitioner in any ensuing Tribunal proceedings.
The Commission’s view
4.67 The Commission considers that practitioners should be given a full copy of the original complaint in order to satisfy the requirement of procedural fairness. Practitioners should also be given a summary document clarifying the aspects of the complaint that will be investigated so that they can respond appropriately.
Notifying the parties of the decision
4.68 The LSC or Council must keep a record of its decision about every complaint and notify the complainant and the practitioner of its decision in writing, with reasons. This includes decisions to refer a complaint to the Tribunal.97 In IP 18 the Commission asked whether this requirement should be modified (Issue 17).
4.69 When a complaint is referred to the Tribunal, the practitioner must also be served with copies of the information and affidavits.98 Several submissions argued that this is sufficient notice to practitioners and that the additional notice requirement under Part 10 creates unnecessary duplication.99
4.70 Another submission criticised the current form of written notification to complainants, arguing that the legal language and citations used are difficult for complainants to understand.100
The Commission’s view
4.71 The Commission’s view is that the current notice requirement should be retained. The requirement gives practitioners about whom a complaint is referred to the Tribunal time to prepare for the upcoming hearing. Complainants are also entitled to be informed about the outcome of their complaint, in language that is clear and easy to understand.
INVESTIGATIVE POWERS
Compelling practitioners to co-operate
Under Part 10
4.72 The LSC and Councils have the power to issue notices compelling any practitioner to co-operate with an investigation.101 Non-compliance with a notice requiring co-operation with an investigation, without a reasonable excuse, constitutes professional misconduct.102 Misleading or obstructing an investigation is capable of amounting to professional misconduct.103 The LSC has the same investigative powers when reviewing Council decisions.104
4.73 In IP 18 the Commission asked whether this power and the sanctions for non-compliance with it are adequate (Issues 18 and 19).
Submissions
4.74 Numerous submissions submitted that this power should be strengthened.105 A number of submissions expressed concern that the current investigative powers do not protect investigations against the risk of unscrupulous practitioners interfering with evidence, either by producing false records or destroying real ones. These submissions argued that the LSC and Councils should be empowered to attend the office of a practitioner under investigation and inspect documents without notice.106
4.75 It was also submitted that the procedure is ineffective in making practitioners co-operate with investigations.107 The OLSC estimates that it may take a year or more before the LSC is able to obtain sufficient information from a practitioner using the notification procedure. This causes complainants and OLSC staff significant dissatisfaction.108
4.76 These submissions favoured strengthening the sanctions for practitioners who do not comply with a notice requiring co-operation. It was submitted that the practising certificate of a practitioner who fails to comply with a notice should be cancelled109 or suspended until the lawyer co-operates with the investigation.110 Another submission argued that the Tribunal should be permitted to draw adverse inferences against a practitioner who failed to co-operate with a notice.111
4.77 The Victorian Legal Ombudsman also emphasised the importance of vigilance in enforcing the sanctions for non-compliance with an investigation, arguing that as a result of strict enforcement of the disciplinary sanctions in Victoria, she has experienced few problems in securing co-operation with investigations.112
Other jurisdictions
4.78 Regulators in all Australian jurisdictions can require a lawyer who is the subject of a complaint to co-operate with an investigation.113 In the Northern Territory, the Australian Capital Territory and South Australia it is an offence to wilfully delay or obstruct an investigation into a complaint.114 It is also an offence in the Australian Capital Territory, the Northern Territory and South Australia for a lawyer to refuse to co-operate with an investigation, without a reasonable excuse.115 In the Northern Territory, Queensland, Tasmania, Victoria and Western Australia failure to co-operate with an investigation is dealt with as misconduct.116 In Western Australia it can also amount to contempt of court.117
Recommendation
4.79 Except as mentioned below, the Commission has concluded that the powers of the LSC and the Councils in respect of investigations are adequate and that the asserted shortcomings could be dealt with by a more rigorous application of the present regime. The Commission recommends that the LSC should have powers of entry, search and seizure without notice when investigating complaints. The requirement that a search warrant must be obtained would provide a check to ensure that the power of search is used appropriately. The Health Care Complaints Commission has similar powers for the purpose of investigating complaints about the professional conduct of health practitioners.118
4.80 Where a complaint is being investigated by a Council and it appears that a search of premises is appropriate, it should refer the matter to the LSC to obtain a warrant and conduct the search and seizure if appropriate. It is inappropriate, in the Commission’s view, to give powers of search to private institutions or persons.
4.81 Where there is no complaint, but the LSC or a Council has a reasonable suspicion that professional misconduct has been committed and it is reasonably necessary to conduct a search for the purpose of considering whether a complaint should be instituted, it should also be possible, in an appropriate case, for a search warrant to be obtained.
4.82 The Commission’s preferred view is that applications for search warrants should be heard by the Tribunal. This would require the development of administrative structures and procedures to deal with search warrant applications. Alternatively, the Supreme Court has existing administrative structures and procedures to deal with the issue of warrants.
Waiving the solicitor client lien
Solicitor client lien
4.83 Solicitors are permitted to withhold all files, documents and personal property of a client until the client pays their costs in full, unless the Supreme Court orders the solicitor to give up the documents.119
Solicitor client lien and Part 10
4.84 Sometimes a solicitor will claim solicitor client lien over the file of a client who has made a complaint. This prevents the client from gaining access to the file. The Councils and the LSC can compel a solicitor to waive the lien if satisfied that it is “necessary for the orderly transaction of the client’s business”.120
Submissions
4.85 The OLSC submitted that the power to compel a solicitor to waive the lien if satisfied that it is “necessary for the orderly transaction of the client’s business” may not cover the situation where a complainant requires the file in order to determine whether to take any action against a lawyer, including whether to make a complaint under Part 10.121 Other submissions argued that the solicitor’s lien should be suspended during an investigation,122 or abolished.123
Recommendation
4.86 The Commission recommends that the Councils and the LSC should be given the power to require a solicitor to hand over files which are subject to solicitor client lien to the Council or LSC. The client should then be able to inspect the files at the offices of the Council or LSC in order to decide whether to make a complaint against the solicitor. Where files are held by a solicitor in regional or rural New South Wales, they could be handed over to another local solicitor acting as the agent of the Council or LSC. This would make it easier for the client to inspect the file without having to travel to Sydney. Part 10 should expressly state that the exercise of this power does not waive the solicitor client lien.
Recommendation 12
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to give the LSC, the Law Society and the Bar Association the power to require a solicitor to hand over files which are subject to solicitor client lien. The client should then be able to inspect the files at the offices of LSC, the Law Society or the Bar Association in order to decide whether to make a complaint against the solicitor. Where files are held by a solicitor in regional or rural New South Wales, they could be handed over to another local solicitor acting as the agent of the Council or LSC. This would make it easier for the client to inspect the file without having to travel to Sydney. Part 10 should expressly state that the exercise of this power does not waive the solicitor client lien.
Service of notice requiring co-operation
4.87 A notice requiring a practitioner to co-operate with an investigation must be served personally on the practitioner.124 In IP 18 the Commission asked whether the service requirement should be modified (Issue 20).
4.88 Many submissions supported relaxing the service requirement. It was submitted that it should be adequate to serve notice personally, or by ordinary post, at the practitioner’s last place of business or residence as recorded with the Law Society or Bar Association;125 or in a manner reasonably calculated to bring the notice to the attention of the practitioner and approved by the Tribunal.126 This would address the problem of the inability of the LSC or Councils to serve notice personally on practitioners whose whereabouts is unknown. The Commission recommends that the service requirement should be relaxed.
Recommendation 13
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to provide that a notice requiring co-operation by a practitioner with an investigation can be served either personally, at the practitioner’s last place of business or residence as recorded with the Law Society or Bar Association or in a manner that is reasonably calculated to bring the notice to the attention of the practitioner and that is approved by the Tribunal.
TRANSFER OF COMPLAINTS
Review of transfers
4.89 The LSC may take over the investigation of a complaint from a Council if he considers it appropriate to do so,127 and may refer a complaint to a Council after commencing an investigation.128 The LSC may also, with the consent of a Council, refer a complaint to the Council after completing an investigation into the complaint (including after the institution of Tribunal proceedings).129
4.90 In IP 18 the Commission asked whether complainants should be entitled to a review of a decision to transfer a complaint (Issue 21). The Commission observed that this would increase the time taken to complete the complaints handling process.130
4.91 Most submissions did not support the availability of a review in such circumstances, arguing that the transfer mechanisms merely facilitate the division of labour and a right to review would increase delays.131 The Commission agrees with these submissions and accordingly, does not make a recommendation for the introduction of a review of decisions to transfer a complaint.
Transfer outside the time limit
4.92 There is no provision in Part 10 for the referral of a complaint by the LSC to a Council outside the time limit. At present, the LSC and Councils have an informal arrangement for the transfer of a complaint to a Council at any time with the consent of the Council. In IP 18 the Commission asked whether this informal arrangement should be given a statutory basis in Part 10 (Issue 11).
4.93 Submissions agreed that the informal arrangement should be given a statutory basis, arguing that Part 10 should facilitate the resolution of complaints wherever possible.132 The Commission agrees with these submissions and recommends that the informal arrangement which exists for the transfer of a complaint to a Council at any time by consent should be afforded statutory recognition.
NON-COMPLIANCE WITH PART 10
4.94 Non-compliance with the procedures for the investigation of complaints under Part 10 may deprive the Tribunal of jurisdiction over a complaint. The recent cases of Carson v Legal Services Commissioner,133 Law Society of New South Wales v M,134 Barwick v Law Society of New South Wales135 and Murray v Legal Services Commissioner136 illustrate this.
4.95 In Carson v Legal Services Commissioner, the New South Wales Court of Appeal ordered that disciplinary proceedings against a solicitor be permanently stayed as a result of an abuse of process by the LSC that consisted of the commencement of disciplinary proceedings which were so clearly untenable that they were “foredoomed to fail”,137 inexcusable delay in conducting an investigation138 and failure to satisfy the requirements of procedural fairness.139
4.96 In Law Society of New South Wales v M, the Tribunal held that it had no jurisdiction to hear disciplinary proceedings against a solicitor as a result of the LSC’s failure to give the solicitor reasons for deciding to refer a complaint against him to the Tribunal.140
4.97 In Barwick v Law Society of New South Wales the High Court held that the Tribunal did not have jurisdiction to hear disciplinary proceedings against a solicitor as a result of failure by the Law Society to investigate complaints, non-compliance by the Law Society with the time limit for complaints and misuse by the Tribunal of its power to amend informations.
4.98 Finally, in Murray v Legal Services Commissioner the Court of Appeal held that the LSC’s decision to institute Tribunal proceedings against a solicitor were void because the LSC denied the solicitor procedural fairness during his investigation into a complaint about the solicitor.
4.99 In IP 18 the Commission asked whether the consequences of non-compliance with the procedural requirements of Part 10 should be changed (Issue 22-24).
4.100 Submissions supported amending Part 10 to allow practitioners to waive the procedural requirements, and to provide for deemed waiver in certain circumstances.141
4.101 In Barwick v Law Society of New South Wales Justice Kirby commented that:142
Jurisdiction over the professional conduct and competence of legal practitioners exists for the fundamental purpose of protecting the public. In such circumstances the serious delays in disposing of the allegations against Mr Barwick (and the other legal practitioner involved) must occasion grave concern. The interests of the public, of complainants and of the legal practitioners themselves require that such matters be dealt with lawfully and fairly but also with more efficiency and expedition than has been the case here. ... Unhappily, the recent experience of this Court suggests that such delays may represent the norm, not an exception.
4.102 The Commission considers that a practitioner should not be able to rely on non-compliance by the LSC, the Law Society or the Bar Association with the procedural requirements of Part 10 to invalidate Tribunal proceedings unless the procedural irregularity has caused the practitioner substantial injustice. To permit procedural defects to invalidate Tribunal proceedings when no substantial injustice has resulted creates unnecessary complexity and inefficiency in the administration of Part 10 and contributes to the serious delays referred to by Justice Kirby.
4.103 Accordingly the Commission recommends that Part 10 should be amended to provide that disciplinary proceedings against practitioners are not invalidated by non-compliance by the LSC, the Law Society or the Bar Association with the procedural requirements for investigating and referring complaints to the Tribunal, unless this has resulted in substantial injustice. The Commission’s recommendation is adapted from the Bankruptcy Act 1966 (Cth) s 306(1).
4.104 The Commission has also considered whether this recommended provision should extend to procedural irregularities occurring in the Tribunal itself. The Commission has concluded that this would create an undesirable inconsistency between the basis for appeal or judicial review of decisions of the Tribunal in the Legal Services Division and the basis for appeal or review applying in other Divisions, where no such limitation applies.
Recommendation 15
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to provide that proceedings under Part 10 are not invalidated by a formal defect or an irregularity in the making or referral of the complaint to the Tribunal or the decision-making of the Commissioner, the Law Society or the Bar Association unless the court or Tribunal before which the objection on that ground is made is of the opinion that substantial injustice has been caused by the defect or irregularity and that injustice cannot be remedied by an order of the court or Tribunal.
Footnotes
1. Legal Profession Act 1987 (NSW) s 137. The time limit was amended in 2000 as a result of the decision of the High Court in Barwick v Law Society of NSW (2000) 74 ALJR 419.
2. Legal Profession Act 1987 (NSW) s 137(2)(a).
3. Legal Profession Act 1987 (NSW) s 137(2)(b).
4. New South Wales Law Reform Commission, Scrutiny of the Legal Profession: Complaints Against Lawyers (Report 70, 1993) at para 4.68-4.69.
5. Confidential Submission 1; F Combe, Submission at 5; C Berkemeier, Submission at 1-2; NSW Legal Reform Group, Submission at 4.
6. For Legally Abused Citizens Inc, Submission 2 at 3; F Combe, Submission at 5; G Taylor, Submission at 6.
7. Barwick v Law Society of New South Wales (2000) 74 ALJR 419 at para 96 per Kirby J. See also Walton v Gardiner (1993) 177 CLR 378. In this case the High Court upheld the decision of the NSW Court of Appeal that disciplinary proceedings against several doctors should be permanently stayed because of long delays (ranging from 13 to 21 years) between the conduct complained of and complaints. The Court held that the delays were so unfairly and unjustly oppressive as to amount to abuse of process by the Medical Tribunal.
8. Report 70 at para 4.68-4.69; M(K) v M(H) (1992) DLR (4th) 289 at 301.
9. Legal Aid Commission, Submission at 3.
10. M Fullerton, Submission at 3; B Barac, Submission at 1-2; R S Cuddy, Submission at 4; N R Cowdery, Submission at 2; NSW Legal Reform Group, Submission at 5; Victorian Legal Ombudsman, Submission at 22; P Breen, Submission at 3. See also IP 18 at para 4.30.
11. Medical Consumers Association, Inc, Submission at 8; B Barac, Submission at 2; NSWLRC IP 18 at para 4.30.
12. B Barac, Submission at 2; Medical Consumers Association, Inc, Submission at 8; NSWLRC IP 18 at para 4.30.
13. Legal Aid Commission, Submission at 3; R S Cuddy, Submission at 4.
14. NSWLRC Report 70 Recommendation 12.
15. Legal Profession Reform Bill 1993 (NSW) cl 139(1).
16. Legal Profession Act 1987 (NSW) s 55.
17. Legal Profession Regulation 1994 (NSW) cl 28(4).
18. Legal Profession Act 1987 (NSW) s 137(1).
19. Legal Aid Commission, Submission at 3; M Fullerton, Submission at 3; B Barac, Submission at 2; C Wall, Submission at 6; Medical Consumers Association Inc, Submission at 8; NSW Legal Reform Group, Submission at 5; For Legally Abused Citizens Inc, Submission 2 at 5. See NSWLRC Report 70 at para 4.67; NSWLRC IP 18 at para 4.32.
20. See M(K) v M(H) (1992) DLR (4th) 289 at 301.
21. Limitation Act 1969 (NSW) s 55.
22. For Legally Abused Citizens Inc, Submission 2 at 5.
23. The types of complaints dealt with under Part 10 are described at para 2.18-2.19.
24. NSW Legal Reform Group, Submission at 5.
25. Law Society of NSW, Submission at 9; NSW Bar Association, Submission at 28; Victorian Legal Ombudsman, Submission at 24; R S Cuddy, Submission at 4.
26. See para 4.2-4.3.
27. Barwick v Law Society of New South Wales (2000) 74 ALJR 419.
28. See Legal Profession Act 1987 (NSW) s 138 (subsequently amended: see para 4.19).
29. Barwick v Law Society of New South Wales (2000) 74 ALJR 419 at para 88 per Kirby J.
30. Barwick v Law Society of New South Wales (2000) 74 ALJR 419 at para 72 per Gleeson CJ, Gaudron and McHugh JJ; at para 97 per Kirby J; at para 143, 171 per Callinan J.
31. Legal Profession Act 1987 (NSW) s 137(3).
32. Law Society of NSW, Submission at 9.
33. NSW Bar Association, Submission at 28.
34. NSW Legal Reform Group, Submission at 4. See also M Fullerton, Submission at 3.
35. Queensland Law Society Act 1952 (Qld) s 5E(5).
36. Legal Practice Act 1996 (Vic) s 123 and s 139.
37. See Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. One of the paramount considerations is whether the applicant can demonstrate an exceptional explanation for the delay and show that an extension is fair and equitable in the circumstances because the delay was not reprehensible or oppressive. The longer the delay, the higher the expectation of an explanation.
38. See para 6.4-6.7 and Recommendation 28.
39. See also para 4.45-4.47.
40. Legal Profession Act 1987 (NSW) s 3 and s 134(1).
41. Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW).
42. See Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) s 3 and Sch 1, inserting s 47T into the Legal Profession Act 1987 (NSW).
43. Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) s 3 and Sch 1, inserting s 47E(1) and (2) into the Legal Profession Act 1987 (NSW).
44. Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) s 3 and Sch 1, inserting s 47E(3) into the Legal Profession Act 1987 (NSW).
45. Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW) s 3 and Sch 1, inserting s 47E(4) into the Legal Profession Act 1987 (NSW).
46. OLSC, Submission at 29; NSW Legal Reform Group, Submission at 5; Victorian Legal Ombudsman, Submission at 25; P Breen, Submission at 4.
47. NSW Bar Association, Submission at 30; R S Cuddy, Submission at 1; Law Society of NSW, Submission at 9. See also Re Chakeras (Victoria, Legal Profession Tribunal, No T0037/2000, 14 April 2000, unreported).
48. Legal Practitioners Act 1970 (ACT) s 3 and s 50; Queensland Law Society Act 1952 (Qld) s 3 and s 5E; Legal Practitioners Act 1893 (WA) s 3 and s 25.
49. Legal Practice Act 1996 (Vic) s 3 and s 137. See Re Chakeras (Victoria, Legal Profession Tribunal, No T0037/2000, 14 April 2000, unreported).
50. Legal Practitioners Act 1981 (SA) s 5 and s 76; Legal Profession Act 1993 (Tas) s 3, s 56 and s 57.
51. Re Mayes [1974] 1 NSWLR 19; Re a Solicitor [1960] VR 617.
52. Law Society of New South Wales v Foreman (1991) 24 NSWLR 490.
53. Re Johnston (1979) 32 ACTR 37 sub nom Re a Barrister and Solicitor (1979) 40 FLR 26.
54. Legal Profession Act 1987 (NSW) s 151.
55. NSW Bar Association, Preliminary Submission 2 at 2.
56. F Combe, Submission at 6; B Barac, Submission at 2; Law Society of NSW, Submission at 10; NSW Bar Association, Submission at 33; Victorian Legal Ombudsman, Submission at 28.
57. Barwick v Law Society of New South Wales (2000) 74 ALJR 419 at para 60-64 per Gleeson CJ, Gaudron, McHugh JJ; at para 115 per Kirby J; at para 156 per Callinan J.
58. This Report recommends that the time limit should be amended: see Recommendations 4-6 and para 4.2-4.28.
59. Legal Profession Act 1987 (NSW) s 167A.
60. Legal Profession Act 1987 (NSW) s 167A(3).
61. Barwick v Law Society of New South Wales (2000) 74 ALJR 419 at para 80, 113, 115 per Kirby J.
62. OLSC, Preliminary Submission at 3-4; Law Society of NSW, Preliminary Submission Issue 3; NSW Bar Association, Preliminary Submission 1 at para 4 and 18-28.
63. N R Cowdery, Submission at 2; Law Society of NSW, Submission at 10; OLSC, Submission at 23. See also NSWLRC IP18 at para 4.42-4.45.
64. Legal Profession Act 1987 (NSW) Pt 10 Div 5.
65. OLSC, Preliminary Submission, Appendix at 8.
66. F Combe, Submission at 7; For Legally Abused Citizens Inc, Submission 1 at 3 and Submission 2 at 8; OLSC, Submission at 24; Law Society of NSW, Submission at 11; NSW Legal Reform Group, Submission at 6.
67. OLSC, Submission at 24; Law Society of NSW, Submission at 11.
68. OLSC, Submission at 24; Law Society of NSW, Submission at 11.
69. Evidence Act 1995 (NSW) s 117-126.
70. Grant v Downs (1976) 135 CLR 674 at 685.
71. Baker v Campbell (1983) 153 CLR 52 at 85.
72. Legal Profession Act 1987 (NSW) s 171S(1).
73. Legal Profession Act 1987 (NSW) s 171S(2).
74. N R Cowdery, Submission at 2; For Legally Abused Citizens Inc, Submission 2 at 5; Law Society of NSW, Submission at 11; NSW Bar Association, Submission at 34; OLSC, Submission at 26; NSW Legal Reform Group, Submission at 6; Victorian Legal Ombudsman, Submission at 31; but see R S Cuddy, Submission at 5 and P Breen, Submission at 4. See also NSWLRC IP 18 at para 4.49-4.51. The Bar Association’s support for extending the exception to client legal privilege was conditional: the Bar argued that privileged information should not be available in relation to consumer disputes.
75. OLSC, Submission at 26.
76. R S Cuddy, Submission at 5.
77. Evidence Act 1995 (NSW) s 125.
78. This Reports recommends that the investigative powers of the LSC, the Law Society and the Bar Association should be strengthened: see Recommendations 11-13 and para 4.62-4.76.
79. Legal Practitioners Act (NT) s 47; Legal Practitioners Act 1970 (ACT) s 54; Queensland Law Society Act 1952 (Qld) s 5G; Legal Practitioners Act 1981 (SA) s 76; Legal Profession Act 1993 (Tas) s 58; Legal Practice Act 1996 (Vic) s 149; Legal Practitioners Act 1893 (WA) s 31D. See also para 4.68.
80. Legal Profession Act 1993 (Tas) s 58.
81. Legal Practice Act 1996 (Vic) s 149.
82. (1983) 153 CLR 52.
83. (1995) 183 CLR 121.
84. See para 6.36-6.50 and Recommendation 31.
85. (1983) 153 CLR 52.
86. (1983) 153 CLR 52 at 68.
87. Carter v Northmore (1995) 183 CLR 121.
88. Carter v Northmore (1995) 183 CLR 121 at 130.
89. Attorney General (NT) v Maurice (1986) 161 CLR 475.
90. Legal Profession Act 1987 (NSW) s 125(a).
91. Kioa v West (1985) 159 CLR 550.
92. See also para 5.2-5.62 for other outcomes of investigations.
93. Murray v Legal Services Commissioner (1999) 46 NSWLR 224.
94. N R Cowdery, Submission at 2; OLSC, Submission at 21; NSW Legal Reform Group, Submission at 6; Law Society of NSW, Submission at 11. See also NSWLRC IP 18 at para 4.54-4.56.
95. NSW Legal Reform Group, Submission at 6.
96. For Legally Abused Citizens Inc, Submission 1 at 3; R S Cuddy, Submission at 5; Legal Aid Commission, Submission at 3; Victorian Legal Ombudsman, Submission at 32; F Combe, Submission at 7.
97. Legal Profession Act 1987 (NSW) s 171J; Murray v Legal Services Commissioner (1999) 46 NSWLR 224; Law Society of New South Wales v M [2000] NSWADT 137.
98. Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 (NSW) Chapter 3 Part 3 Div 2.
99. OLSC, Submission at 22; N R Cowdery, Submission at 2; Law Society of NSW, Submission at 12; Law Society of NSW, Submission at 12; NSW Bar Association, Submission at 35-36. See also J A Loveday, Submission at 2. Compare Victorian Legal Ombudsman, Submission at 33-34.
100. NSW Legal Reform Group, Submission at 6.
101. Legal Profession Act 1987 (NSW) s 152(1), (1A) and (3).
102. Legal Profession Act 1987 (NSW) s 152(4).
103. Legal Profession Act 1987 (NSW) s 152(5).
104. Legal Profession Act 1987 (NSW) s 159(4). See also para 5.75-5.86 on the question of the LSC reviewing decisions of the Councils.
105. F Combe, Submission at 8; N R Cowdery, Submission at 3; C Wall, Submission at 4 and 7; OLSC, Submission at 25-27; Victorian Legal Ombudsman, Submission at 35; For Legally Abused Citizens Inc, Submission 2 at 5-6; P Breen, Submission at 5; NSW Legal Reform Group, Submission at 6; NSW Bar Association, Submission at 36-38; R S Cuddy, Submission at 6; Law Society of NSW, Submission at 12.
106. C Wall, Submission at 4; Victorian Legal Ombudsman, Submission at 35; NSW Bar Association, Submission at 36; OLSC, Submission at 26.
107. Law Society of NSW, Preliminary Submission Issue 10.
108. OLSC, Submission at 25-27.
109. NSW Bar Association, Submission at 36-38.
110. C Wall, Submission at 7; Law Society of NSW, Submission at 12; NSW Bar Association, Submission at 36-38; NSW Legal Reform Group, Submission at 6.
111. C Wall, Submission at 7.
112. Victorian Legal Ombudsman, Submission at 35.
113. Legal Practitioners Act 1970 (ACT) s 54; Legal Practitioners Act (NT) s 47; Queensland Law Society Act 1952 (Qld) s 5G; Legal Practitioners Act 1981 (SA) s 76; Legal Profession Act 1993 (Tas) s 58; Legal Practice Act 1996 (Vic) s 149; Legal Practitioners Act 1893 (WA) s 31D.
114. Legal Practitioners Act (NT) s 47B; Legal Practitioners Act 1970 (ACT) s 117; Legal Practitioners Act 1981 (SA) s 76.
115. Legal Practitioners Act 1970 (ACT) s 54 and s 57; Legal Practitioners Act (NT) s 47B; Legal Practitioners Act 1981 (SA) s 76.
116. Legal Practitioners Act (NT) s 45; Queensland Law Society Act 1952 (Qld) s 5H; Legal Profession Act 1993 (Tas) s 56 and s 58; Legal Practice Act 1996 (Vic) s 137; Legal Practitioners Act 1893 (WA) s 31D.
117. Legal Practitioners Act 1893 (WA) s 31D.
118. Health Care Complaints Act 1993 (NSW) s 32-38.
119. See NSWLRC Report 70 at para 5.69; Legal Profession Act 1987 (NSW) s 209C. For a discussion of the scope of the lien, see Halsbury’s Laws of Australia (Butterworths, 1997) Volume 16 at [250-1030]-[250-1065].
120. Legal Profession Act 1987 (NSW) s 152(2) and (3).
121. OLSC, Preliminary Submission at 6-7.
122. NSW Legal Reform Group, Submission at 6. See Legal Practitioners Act 1893 (WA) s 31(4).
123. OLSC, Submission at 27; P Breen, Submission at 5. The Commission has previously recommended that the solicitor client lien should be abolished. See NSWLRC Report 70 Recommendation 71 and para 5.69-5.78.
124. Legal Profession Act 1987 (NSW) s 152(1) and (3).
125. C Wall, Submission at 7; Law Society of NSW, Submission at 12-13; NSW Bar Association, Submission at 38; Victorian Legal Ombudsman, Submission at 37.
126. N R Cowdery, Submission at 3; Law Society of NSW, Submission at 13; NSW Bar Association, Submission at 38; NSW Legal Reform Group, Submission at 7.
127. Legal Profession Act 1987 (NSW) s 147A(1).
128. Legal Profession Act 1987 (NSW) s 141(4).
129. Legal Profession Act 1987 (NSW) s 147A(1A). Section 167B provides for the substitution of informants.
130. NSWLRC IP 18 at para 4.70.
131. N R Cowdery, Submission at 3; Law Society of NSW, Submission at 13; NSW Bar Association, Submission at 39; P Breen, Submission at 5-6; C Wall, Submission at 7. But see C Berkemeier, Submission at 3; NSWLRC IP 18 at para 4.70.
132. N R Cowdery, Submission at 2; Law Society of NSW, Submission at 10; NSW Bar Association, Submission at 32. See also OLSC, Preliminary Submission, Appendix at 3.
133. Carson v Legal Services Commissioner [2000] NSWCA 308 (3 November 2000).
134. Law Society of New South Wales v M [2000] NSWADT 137.
135. Barwick v Law Society of New South Wales (2000) 74 ALJR 419.
136. Murray v Legal Services Commissioner (1999) 46 NSWLR 224.
137. Carson v Legal Services Commissioner [2000] NSWCA 308 (3 November 2000) per Sheller JA at para 258.
138. Carson v Legal Services Commissioner [2000] NSWCA 308 (3 November 2000) per Sheller JA at para 265.
139. Carson v Legal Services Commissioner [2000] NSWCA 308 (3 November 2000) per Sheller JA at para 46.
140. The LSC is required to give reasons under s 171J of the Legal Profession Act 1987 (NSW). See para 4.58-4.61.
141. Law Society of NSW, Submission at 13; NSW Bar Association, Submission at 40; Victorian Legal Ombudsman, Submission at 40.
142. Barwick v Law Society of New South Wales (2000) 74 ALJR 419 at para 80 per Kirby J.
