Disciplinary findings and orders against a legal practitioner

After investigating a complaint about a legal practitioner, the Legal Services Commissioner, the Council of the NSW Bar Association or the Council of the Law Society may apply to NCAT for disciplinary orders and findings.

The Application for disciplinary findings and orders must be accompanied by an affidavit sworn by a competent person on behalf of the applicant. The affidavit must:

• Identify the maker of the original complaint to which the application relates

• Give a brief description of the allegations of unsatisfactory professional conduct or professional misconduct on which the application is based

• Outline investigation of the complaint undertaken by the applicant

• Identify any person who investigated the complaint, or associated matters, and upon whose evidence the applicant relies

• Identify all reports and documents relating to the investigation, that the applicant intends to tender in evidence, and include true copies of these as annexes to the affidavit

• Establish that the person who is the subject of the complaint, was a legal practitioner at the time the alleged professional misconduct or unsatisfactory professional conduct occurred

• List the orders sought.

As soon as practical after lodging an application, the applicant will serve the legal practitioner with a sealed copy of the application and all affidavits in support.

The legal practitioner should file and serve their Reply to application for disciplinary findings within 21 days of service.

A directions hearing will be held at least 28 days after an application has been filed.

The applicant, during or before the directions hearing, will file and serve a chronology of the complaint, together with the names of any Council or Conduct Division members who have considered the complaint.

NCAT will make any directions for the filing and service of evidence and submissions and for any other directions that are preliminary or orders necessary to make the case ready for hearing.

The parties may agree to a written timetable which they submit to NCAT for approval. To be approved, the timetable needs to allow for substantive proceedings to be listed for hearing within six months of the date the original application was filed. The fact that a preferred legal representative is not available for either party, will not generally constitute sufficient reason to schedule a hearing outside the time standards.

The legal practitioner may only present evidence of matters  included in the Reply, unless NCAT gives leave for the practitioner to present other evidence.

A panel of 3 Tribunal Members will hear cases brought by professional bodies. These will be a Senior Tribunal Member, a practitioner Member and a lay Member; or, two practitioner members and a lay member.

If the legal practitioner fails to appear

If the legal practitioner fails to appear at the hearing, NCAT may conduct the hearing in the person's absence, provided that:

• the application and supporting documents were served to the legal practitioner
  
• the time provided for filing a reply, or any extension of that time ordered by NCAT has expired
• the time specified for compliance by the parties with any directions made by NCAT has expired
• sufficient notice of the hearing has been given to the legal practitioner

At the conclusion of the hearing, NCAT can make a number of orders, including:

• Removal of the solicitor' s or barrister's name from the Roll of Legal Practitioners
• Suspension/cancellation of the solicitor's or barrister's practising certificate or the imposition of conditions
• A fine of up to $100,000 if the solicitor or barrister is guilty of professional misconduct
• A fine of up to $10,000 if the solicitor or barrister is guilty of unsatisfactory professional conduct
• An order reprimanding the solicitor or barrister
• An order that the solicitor or barrister undertakes a course of further legal education.

In the case of a solicitor's practice, NCAT may order that:

• The solicitor's practice be subject to periodic inspection
• The solicitor's practising certificate be endorsed with restrictive conditions
• The solicitor's practice or financial affairs be conducted for a specified period in a specified way or subject to specified conditions.

NCAT may also order payment of compensation up to an amount of $25,000 in circumstances where the complainant has suffered loss as a result of the conduct complained of and it is in the public interest that such an order be made. 

Refer to the Legal Profession Uniform Law (NSW) for all the possible outcomes in applications for disciplinary findings and orders.