Recommendation 2
The Legal Profession Act 1987 (NSW) should be amended to provide that contravention of the Act or the Legal Profession Regulation 1994 (NSW) is capable of being either unsatisfactory professional conduct or professional misconduct.

Recommendation 3
Part 10 of the Legal Profession Act 1987 (NSW) should include a list of all conduct identified in the Act as professional misconduct or unsatisfactory professional conduct and all conduct which the Act states may amount to misconduct.

Recommendation 4
The time limit for making complaints against practitioners in s 137 of the Legal Profession Act 1987 (NSW) should be increased to six years from the time the conduct is alleged to have occurred.

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 Legal Services Commissioner, 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 Legal Services Commissioner, 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.

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 Legal Services Commissioner, and that the Legal Services Commissioner must make a decision under s 155 on the complaint.

Recommendation 8
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to enable the Legal Services Commissioner, 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.

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.

Recommendation 10
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to permit the Tribunal to make confidentiality orders in relation to information subject to client legal privilege where the privilege has been waived.

Recommendation 11
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to give the Legal Services Commissioner powers of entry, search and seizure without notice when considering complaints. The Legal Services Commissioner should be required to obtain a search warrant before exercising these powers.

Recommendation 12
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to give the Legal Services Commissioner, 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 Legal Services Commissioner, 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 Legal Services Commissioner. 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 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.

Recommendation 14
Part 10 of the Legal Profession Act 1987 (NSW) should be amended to permit the transfer of a complaint by the Legal Services Commissioner to the Law Society or the Bar Association at any time by consent of the Law Society or the Bar Association.

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.

Recommendation 16
In deciding to dismiss a complaint under s 155(3)(b) of the Legal Profession Act 1987 (NSW) on the grounds of a practitioner’s previous good record, the Legal Services Commissioner or relevant Council should also, in making their decision, have regard to all the circumstances of the case and be required to record their decision.

Recommendation 17
When the Legal Services Commission or relevant Council is satisfied that there is a reasonable likelihood that a practitioner will be found guilty of unsatisfactory professional conduct (but not professional misconduct) they should be able to impose a reprimand without the practitioner’s consent.

Recommendation 18
Formal mediation of consumer disputes should continue to be permitted and the Legal Services Commission should be able to order mediation in appropriate cases. The mediation should be conducted by such persons as the Legal Services Commission considers appropriate and failure to comply with an order for mediation, without reasonable excuse, should amount to professional misconduct on the part of a practitioner.

Recommendation 19
Upon failure of a mediation, the mediator should certify that mediation has failed. This certification may be used as evidence that mediation has been attempted should mediation be a required stage in the bringing of the matter before another appropriate body.

Recommendation 20
That express provision should be made that the failure to carry out an undertaking to a Council or the Legal Services Commissioner may amount to professional misconduct or unsatisfactory professional conduct.

Recommendation 21
That it be made clear in legislation that the exception in s 7(5) of the Consumer Claims Act 1998 (NSW) applies only to matters that can be referred to costs assessment under Part 11 of the Legal Profession Act 1987 (NSW).

Recommendation 22
That the Legal Services Commissioner and Councils must, if during the course of an investigation they discover conduct of a legal practitioner that would constitute an offence, refer the conduct to any relevant law enforcement or prosecution authority. This referral to another authority would not prevent questions of professional misconduct or unsatisfactory professional conduct continuing to be dealt with under Part 10.

Recommendation 23
The Legal Services Commissioner and Councils should be able, in their discretion, to refer a matter to costs assessment outside of the usual 12 month period in circumstances where the complainant was not previously aware of a right to request a costs assessment. Such a reference to costs assessment must be made within six months of the complainant becoming aware of his or her right to request a costs assessment.

Recommendation 24
1. Consideration should be given to requiring practitioners to include on the bill of costs a general statement about the avenues for review, contact details and time limits for review.

2. Consideration should also be given to making failure to comply with this requirement capable of amounting to unsatisfactory professional conduct.

Recommendation 25
The Legal Services Commissioner should, when reviewing a decision of one of the Councils, be able to refer a matter to costs assessment but only if the time limits otherwise prescribed in relation to costs assessment are adhered to.

Recommendation 26
The Legal Services Commissioner or affected practitioner should be able to request a review of the decision of a Council to dismiss a complaint on the grounds of the previous good record of the practitioner or to impose a reprimand. The review should be by way of a full hearing before the Tribunal.

Recommendation 27
Complainants should have the right to seek a review when a Council is satisfied that there is no reasonable likelihood that the Legal Services Division of the Administrative Decisions Tribunal will make a finding of professional misconduct or unsatisfactory professional conduct. Such a review should be conducted by the Legal Services Commissioner and in such manner as the Legal Services Commissioner considers appropriate.

Recommendation 28
That the government consider and consult on the proposal that a bench of the Legal Services Division of the Administrative Decisions Tribunal comprise a serving or retired District Court Judge or retired Supreme Court Judge as the presiding member and one or two lay members.

Recommendation 29
It should be made clear that two or more practitioners can, subject to directions of the Legal Services Division of the Administrative Decisions Tribunal, be joined at the commencement of proceedings in the one information and that a joint hearing may be conducted against a barrister and solicitor provided the Councils and Legal Services Commissioner agree.

Recommendation 30
A practitioner should be able to consent to being removed from the roll of practitioners provided the practitioner is prepared to agree to a record of the grounds for the complaint and an agreed statement of facts. The required records and statements should be entered before a three member sitting of the Legal Services Division of the Administrative Decisions Tribunal.

Recommendation 31
Section 168 of the Legal Profession Act 1987 (NSW) should be repealed so that the Legal Services Division of the Administrative Decisions Tribunal is not bound by the rules of evidence in any proceedings so long as the rules of natural justice are followed. The privilege against self incrimination in other proceedings must also be preserved.

Recommendation 32
Section 170(1) of the Legal Profession Act 1987 (NSW) should be repealed so that hearings of the Legal Services Division of the Administrative Decisions Tribunal will, subject to the exercise of the Tribunal’s discretion, be held in public. A specific provision should be included to the effect that in making a determination under s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW) the Legal Services Division of the Administrative Decisions Tribunal should have regard to the client legal privilege of the complainant and other witnesses before the Tribunal.

Recommendation 33
1. The Legal Services Division of the Administrative Decisions Tribunal should be empowered to order the payment of costs of, and incidental to, any hearing under Part 10.

2. Orders for costs should be subject to the discretion of the Legal Services Division of the Administrative Decisions Tribunal;

3. In the event that the Legal Services Division of the Administrative Decisions Tribunal is satisfied that a practitioner is not guilty, an order for costs should be made against the Public Purpose Fund, but only when the Tribunal is satisfied that special circumstances exist warranting such an order. In considering whether special circumstances exist the Tribunal should have regard to the length and complexity of the proceedings.

4. The Legal Services Division of the Administrative Decisions Tribunal should be empowered either to fix the amount of costs itself or to order that costs be assessed.

Recommendation 34
The Legal Services Division of the Administrative Decisions Tribunal should have the power to order compensation on the basis of findings made by the Tribunal as part of the disciplinary hearing. Any questions of compensation requiring substantial submissions or evidence should be referred to an appropriate alternative forum for determination.

Recommendation 35
The Legal Services Division of the Administrative Decisions Tribunal should have the power to make such other orders as it thinks fit following a hearing.

Recommendation 36
Appeals to an Appeal Panel of the Administrative Decisions Tribunal should be abolished for all matters under Part 10.

Recommendation 37
1. A hearing of the Supreme Court into the conduct of a legal practitioner (whether the matter has been before the Legal Services Division of the Administrative Decisions Tribunal or not) should:

(a) be conducted in such manner as the Court considers appropriate; and

(b) not be bound by the rules of evidence as to the admission of relevant material.

3. Consideration should be given to whether hearings of the Supreme Court into the conduct of a legal practitioner (whether the matter has been before the Legal Services Division of the Administrative Decisions Tribunal or not) should be conducted by a single Judge.

Recommendation 38
The Legal Services Commissioner should have the right to appear and be heard, by legal representative, in the Supreme Court. This right should be in relation to questions of conduct of practitioners, as well as in relation to Tribunal decisions that the Councils have chosen not to challenge.

Recommendation 39
Consideration should be given to removing the distinction drawn in Pt 65 r 7(3A) and (3B) of the Supreme Court Rules 1970 (NSW) so that persons may inspect, without restriction, all orders made by the Legal Services Division of the Administrative Decisions Tribunal in relation to the conduct of practitioners.

Recommendation 40
The Legal Services Commissioner should have the power to establish a publicly accessible register recording orders made in relation to proven complaints against practitioners.