Interaction Between the Law Society and Other Regulatory Bodies

Admission Proceedings
Complaints
Providing Information to LPCB related to investigations carried out by LPBC
Exchange of Information with LPCB & other South Australian regulatory authorities
Administrative Reporting to LPCB
Supreme Court Disciplinary Proceedings (inherent jurisdiction)
Unqualified persons – practising without practising certificate
Unqualified persons – s 23AA application for leave to be employed
Bankrupt Practitioners – s 49 application for consent to practise
Providing Information to Interstate regulatory authorities

Admission Proceedings

The Law Society is served with Notices of Intention to Seek Admission and is required to satisfy itself that the person is of good fame and character and meets the requirements of being a fit and proper person to be admitted. The Admission Rules provide a procedure for the Society to lodge an objection to the Board of Examiners.

The role of the Society with the Board of Examiners is set out in Rule 30 to 36 of the LPEAC Rules The Board is required to enquire into every Application for Admission and report to the Court as to whether that person is eligible and is a fit and proper person to be admitted and has complied with the Rules.

Rule 31 provides that the Board may require any person applying for admission or re-admission to attend before it and furnish such evidence of his/her good character and fitness. The Society is entitled to be represented before the Council or the Board on any enquiry or any application before it by a solicitor or counsel. This work is undertaken by the Director of Professional Standards and/or any counsel. The costs of the Society in making such application are met out of the Legal Practitioners’ Guarantee Fund.

Rule 34 also provides that the Board may request the Law Society to appoint a practitioner to investigate any matter arising on any enquiry or application coming before it. This is a different function in which the Society is effectively acting as an agent of the Board rather that as an objector wishing to be heard.

In the event that the Full Court of the Supreme Court requires argument to be heard upon the issue of admission of an applicant, the Director of Professional Standards will arrange for counsel to be briefed.

Complaints

The power to investigate allegations of unprofessional conduct (and/or unsatisfactory conduct) is conferred upon the Legal Practitioners’ Conduct Board (LPCB) pursuant to Section 76 of Legal Practitioners Act 1981 (“the Act”).

When a matter comes to the attention of the Society such that the Society decides that there are reasonable grounds to suspect that a legal practitioner or former legal practitioner has committed an act or omission that would constitute unprofessional or unsatisfactory conduct, the Society, through the Professional Standards Committee

   (a) must report the matter to LPCB pursuant to Section 14AB; and

   (b) may direct the LPCB to make an enquiry into that conduct pursuant to Section 76 (although this does not normally occur).

It is not the Society's role in such matters to undertake its own investigations save as to clarify the factual situation to enable the PSC to satisfy itself that it has reasonable grounds to refer a matter to LPCB.

The procedure is that members of the Professional Standards Section report and make recommendations to the Professional Standards Committee which determines whether there are reasonable grounds to suspect that unsatisfactory or unprofessional conduct has occurred. Should the Committee determine that such grounds exist, the Director of Professional Standards reports the matter to the LPCB. The LPCB provides feedback as to the results of those reports to the Professional Standards section, and thus to the Committee.

If the Committee resolves to direct the LPCB to make an enquiry, the role of the Section is then to notify the LPCB of the direction and to monitor the progress and outcome of any such direction.

Part 6 Division 2 of the Act sets out the procedures to be undertaken by the LPCB in investigating complaints.

Providing information to LPCB related to investigations carried out by LPBC

The Society has an obligation to comply with a reasonable request from LPCB for information in respect of the investigation into any matter reported by the Society to the LPCB under s 14AB.
Any inspector appointed by the Society who has inspected the trust accounts of a legal practitioner under investigation must, if required by written notice from the LPCB, provide access to specified documents or documents of a specified kind under s 76.

Exchange of Information with LPCB & other South Australian regulatory authorities

S 73A permits the Society and the LPCB to enter into an arrangement or agreement for the exchange of information, approved by the Attorney-General.
Such agreement was approved in July 2004.

As a result of the agreement, the Society and the LPCB exchange information on a regular basis at meetings attended by the respective Directors and, where appropriate, a representative of the Director of Public Prosecutions.

Professional Standards also reports to and co-operates where appropriate with the SA Police Department.

Administrative Reporting to LPCB

Under the Legal Practitioners Act the Society is required to report to the LPCB:

   (a)  when the Society appoints an inspector under Division 5 of Part 3 or a supervisor or a manager under Division 9 of Part 3; or
   (b)  when the Society determines that a claim made against the Legal Practitioners Guarantee Fund is valid.

Supreme Court Disciplinary Proceedings (inherent jurisdiction)

The power of the Supreme Court to strike-off or suspend a practitioner is part of the inherent jurisdiction of the Court and, additionally, conferred by section 89 of the Act. The inherent jurisdiction is preserved by Section 89(3).

Since the LPCB was granted a right of audience in the Supreme Court to seek orders arising from findings made in the Legal Practitioners Disciplinary Tribunal, the Society has not been asked to take proceedings under the statutory provisions and currently the Society seeks such orders only where the inherent jurisdiction of the Court to monitor its practitioners is invoked, e.g. where a practitioner is convicted of serious criminal offences which arise out of the course of practice or alternatively where it is appropriate to seek an interim suspension pending resolution of other proceedings.

Upon the Director of Professional Standards forming the view that the conduct of the practitioner justifies the Society seeking to invoke the inherent jurisdiction to strike off or suspend the practitioner, the Director reports to Council Disciplinary Committee which in turn makes a recommendation to Council.

In the rare circumstance where the Society wishes to be heard on an LPCB application before the Supreme Court, it should be noted that there is no prima facie right to reimbursement from the Guarantee Fund, and the Society will need to consider how such intervention is to be funded.

Once Council has resolved to seek orders suspending or striking-off a practitioner, the Director prepares the relevant documents and seeks funding for filing fees and counsel fees to settle pleadings and appear at the hearing. Once funding is obtained the Director briefs counsel.

Unqualified persons - practising without practising certificate

On resolution of Professional Standards Committee, Professional Standards will refer to LPCB or to Attorney General for prosecution. The matter is reported to Council as to the referral and for consideration as to whether a report advising of conduct should be made to the Board of Examiners to be placed on the file in the event of an application for re-admission or lifting of a suspension order etc.

Unqualified persons – s 23AA application for leave to be employed

Application are handled by LPCB and heard by the Tribunal. Professional Standards is advised by LPCB of orders made by the Tribunal.
The Society has a right of audience if required.

Bankrupt Practitioners – s 49 application for consent to practise

The Society is normally represented on such an application by Professional Standards who advise the Court as to the attitude of the Society, that attitude having been determined by the President or the Executive of the Society on the information made available to it through the application of the practitioner and other information provided by the Professional Standards section.

Providing information to interstate regulatory authorities

Sections 90AA – 90AF provide a framework for regulation of interstate practice in relation to discipline. The Society, as a regulatory authority, (defined by s 5) through Professional Standards, complies with those provisions in relation to furnishing information.
Further, s 95AA permits a regulatory authority, with the approval of the Attorney-General, to make agreements or arrangements with regulatory authorities in other states with respect to matters under the Legal Practitioners Act including investigation of complaints, trust account inspections, appointments of managers and receivers and exchange of information.

Various protocols have been approved facilitating, in particular, exchange of information between regulatory authorities.