Proctor : March 2019
18 PROCTOR | March 2019 “The standard you walk past is the standard you accept.” In 2013, Chief of the Australian Army Lieutenant General David Morrison used these words in an address at an International Women’s Day Conference to send a message regarding “unacceptable behaviour” within the Australian Army. At the time, the Army was in the midst of an investigation into bullying and harassment in the military and Lt Gen Morrison had addressed the media earlier that day about this ongoing investigation into a group of officers whose conduct, if proven, would have brought the Australian Army into disrepute. His comments were directed at those in the military who by their rank hold a role of leadership, but the essence of his words when considered, at their core, mean that every time we accept the status quo of poor behaviour, we are endorsing it. As the regulator, one of the core responsibilities of the Legal Services Commission and the main purpose of the Legal Profession Act 2007 (LPA) is “to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally”. 1 The Act establishes a system for dealing with complaints about the conduct of legal practitioners. The system: a. provides for the discipline of the legal profession b. promotes and enforces the professional standards, competence and honesty of the legal profession c. provides a means of redress for complaints about lawyers d. otherwise protects members of the public from unlawful operators. The commission’s strategy for promoting standards of conduct in the delivery of legal services commences with receiving and dealing with complaints about the conduct of lawyers and the commission holds practitioners to account when their conduct falls short of expected standards. It is those expected standards that underline this discussion of unsatisfactory professional conduct, professional misconduct and common law negligence. Negligence The commission commonly receives complaints about a practitioner’s negligence in the handling of a matter. Lawyers have a duty to provide professional services with reasonable skill and care. They owe their clients a duty of care. Negligence is the failure to exercise the degree of care considered reasonable in the circumstances, but the mere fact that a lawyer fails to achieve what a client hoped to achieve with the lawyer’s advice and assistance does not, of itself, mean that the lawyer was negligent. However, a lawyer who fails to provide legal services to the client with reasonable care and skill and when that failure then leads to the client suffering financial or other loss, then that lawyer may well have breached their duty of care. To give these statements some perspective, a lawyer who inadvertently puts the wrong description of a property on a contract of sale will have caused less damage to a client than a lawyer who fails to file required forms with a court or tribunal and that failure leads to the client’s case being struck out. Should a practitioner breach that duty of care, it may amount to negligence and the client may be entitled to compensation for their loss, but it must be remembered that negligence is a civil action and it is up to a court to decide if a lawyer has breached their duty of care and whether the client is entitled to compensation in the circumstances. Complaints that allege negligence very often raise complex and contentious questions of both fact and opinion, and there is a likelihood that even after an exhaustive investigation there may not be a sufficiency of evidence to be satisfied that there is a reasonable likelihood of a disciplinary tribunal finding that the lawyer’s conduct amounts to unsatisfactory professional conduct or professional misconduct. As a general rule, complex and contentious questions and fact and opinion are to be properly decided by a court of law. Once those issues have been heard and determined, then the commission is better positioned to deal with any disciplinary issues that may have arisen. At the commission, we encourage complainants in these situations to seek their own independent legal advice about their options and prospects for pursuing such a negligence claim in the courts, if that is what they wish to do. Competence and diligence The commission’s jurisdiction under the LPA is to consider matters where the conduct in question is capable of amounting to “unsatisfactory professional conduct” or “professional misconduct” as defined by the LPA. Section 418 of the Act relevantly defines unsatisfactory professional conduct as: “Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.” Section 419 of the Act relevantly defines the meaning of professional misconduct as: “(1) Professional misconduct includes— (a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.” The commission will not make a discipline application to a disciplinary body unless it is satisfied that the evidence after investigation establishes both that there is a reasonable likelihood of a finding by the disciplinary body of unsatisfactory professional conduct or professional misconduct, and that it is in the public interest to make a discipline application. It should be kept in mind that the standard of “competence and diligence” prescribed by the LPA is a minimal standard; it does There is a dividing line between acts that may be negligent but not amount to unsatisfactory professional conduct or professional misconduct. Acting Legal Services Commissioner Robert Brittan explains where this line is likely to fall.