Adapted from a talk presented by Rob Franklin, Managing Director at Potts Lawyers, at the Australian Defence Lawyers Alliance (ADLA) 2023 Conference in Darwin.
The 'Uniform' Law
Lawyers in Victoria are governed by the Legal Profession Uniform Law ('the Law'), so named because it was once envisaged as regulating the legal profession across the land. However, as things stand, only Victoria and New South Wales have enacted the Uniform Law.
In Victoria, the Law provides strict rules for the conduct of both barristers and solicitors, and procedures to be followed where a lawyers' behaviour falls short of expectations. The Law also establishes the Victorian Legal Services Board + Commissioner (VLSBC), statutory bodies tasked with assisting lawyers in complying with the Law, investigating breaches, and responding where breaches have occurred.
Interestingly, in regulating the legal profession, the Law takes a protective view. Its purpose is not to punish lawyers who break the rules. Rather, it seeks to protect clients and courts from the possible consequences of dealing with individuals whose conduct may not be appropriate. This means that lawyers may avoid repercussions for wrongdoing, so long as they can convince the VLSBC that their conduct will be satisfactory in future. However, it also means that in some cases, lawyers can face professional restrictions, even where they have not done something 'wrong'. For example, a lawyer may be barred from practicing, if they suffer from a mental illness which, in the view of the regulator, might interfere with their ability to satisfactorily perform their duties.
It is an unfortunate reality that most lawyers will receive a professional complaint at some point in their career. Complaints can be made by anyone with a connection to the lawyer or their work, but are most often made by clients who are unhappy with the service they have received. Being the subject of a complaint is the most common way for a lawyer to find themselves on the receiving end of an investigation. Grounds for complaints range from a lack of communication and fee disputes, to fraudulent or otherwise criminal behaviour.
Many complaints can be dealt with straightforwardly, especially those involving fees. It is therefore imperative that lawyers keep up with their other professional responsibilities, such as keeping appropriate file notes and trust records, to prevent a simple complaint growing into a larger problem.
It is often second nature for lawyers, when faced with a challenge, to go on the offensive. This is only natural; in the context of litigation, an adversarial stance is expected. However, when facing a professional complaint or investigation, it can be counterproductive. As mentioned, the overarching regulatory objective is to protect the community from bad behaviour, and antagonising the VLSBC is readily seen as behaviour unbecoming of a lawyer. Besides, robustly worded letters are unlikely to achieve the lawyer's goals.
The counterintuitive nature of these kinds of proceedings makes it all the more important that lawyers get advice. Lawyers can often be reluctant to do so, feeling competent to deal with their own problems, but if nothing else, a fresh pair of eyes can remove the emotion from the situation.
Oftentimes, a specialist will advise that the subject of a complaint cooperates with the investigation, even going so far as to apologise and make corrections to behaviour and processes. However, lawyers must be wary when making admissions that doing so does not void their professional indemnity insurance. Lawyers are encouraged to ask their professional insurer directly before engaging with the VLSBC. Indeed, insurers often offer free advice in such situations. Another useful resource is the Legal Practitioners' Liability Committee. Even if a lawyer is not insured by the Committee, they can avail themselves of the free risk management resources on the Committee's website.
We are grateful for Mr. Franklin's experience in exploring this fraught topic. Lawyers dealing with complaints or professional investigations are encouraged to contact an ADLA-affiliated law firm for specialist advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.