Legal Profession Act 1987 No 109
Repealed version for 15 August 2005 to 30 September 2005 (accessed 27 November 2014 at 00:49)
Part 10Division 1

Division 1 Preliminary

123   Objects of Part generally

The general objects of this Part are:
(a)  to redress the consumer complaints of users of legal services, and
(b)  to ensure compliance by individual legal practitioners with the necessary standards of honesty, competence and diligence, and
(c)  to maintain at a sufficiently high level the ethical and practice standards of the legal profession as a whole.

124   Objects of Part relating to users of legal services

The objects of this Part relating to the users of legal services are:
(a)  to give every person the right to complain about the conduct of legal practitioners, and
(b)  to give users of legal services access to sufficient advice and assistance in order to make and pursue complaints in accordance with this Part and to understand their rights and responsibilities under this Part, and
(c)  to provide an opportunity for mediation of consumer disputes relating to legal services, and
(d)  to give complainants immunity from civil liability for communications made by them in connection with the official complaints and disciplinary system, and
(e)  to provide complainants with a reasonable opportunity to rebut statements of the legal practitioner against whom the complaint is made before the complaint is disposed of, and
(f)  to ensure that complainants receive adequate notice of the institution and status of disciplinary proceedings at relevant stages of the proceedings (including notice of the dismissal of complaints and the reasons for the dismissal), and
(g)  to give complainants the right to seek an independent review of decisions of Councils to dismiss complaints or merely reprimand legal practitioners.

125   Objects of Part relating to providers of legal services

The objects of this Part relating to the providers of legal services are:
(a)  to ensure that the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against legal practitioners, and
(b)  to give legal practitioners immunity from civil liability for communications made by them in connection with the official complaints and disciplinary system, and
(c)  to ensure that legal practitioners are aware of the standards of honesty, competence and diligence expected of them.

126   Definitions

In this Part:

appropriate Council means:

(a)  in relation to a complaint concerning a person who was a barrister when the conduct the subject of the complaint allegedly occurred—the Bar Council, or
(b)  in relation to a complaint concerning a person who was a solicitor when the conduct the subject of the complaint allegedly occurred—the Law Society Council, or
(c)  in relation to a complaint concerning a person who was neither a barrister nor a solicitor when the conduct the subject of the complaint allegedly occurred—the Bar Council or the Law Society Council, whichever the Commissioner nominates for the purposes of the complaint.

compensation order means an order of the Tribunal under section 171D.

complaint means a complaint under this Part.

information means an information laid in the Tribunal in relation to a complaint against a legal practitioner.

investigation means an investigation under this Part by a Council or the Commissioner into a complaint, and includes an independent investigation under section 151.

legal practitioner includes an interstate legal practitioner.

professional misconduct and unsatisfactory professional conduct are defined in section 127.

127   Professional misconduct and unsatisfactory professional conduct

(1)  For the purposes of this Part, professional misconduct includes:
(a)  unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or
(b)  conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or
(b1)  (Repealed)
(c)  conduct that is declared to be professional misconduct by any provision of this Act, or
(d)  a contravention of a provision of this Act or the regulations, being a contravention that is declared by the regulations to be professional misconduct.
(2)  For the purposes of this Part:

unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) occurring 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 legal practitioner.

(3)  Maintenance or champerty by a legal practitioner (except in connection with a conditional costs agreement under Part 11) may constitute professional misconduct despite the Maintenance and Champerty Abolition Act 1993.
(4)  For the avoidance of doubt, conduct:
(a)  involving an act or acts of bankruptcy, or
(b)  that gave rise to a finding of guilt of the commission of an indictable offence or a tax offence,
whether occurring before, on or after the commencement of this subsection, is professional misconduct if the conduct would justify a finding that the legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners.

128   Legal practitioner to whom Part applies

(1)  This Part applies to any legal practitioner, including:
(a)  a legal practitioner who does not hold a practising certificate, and
(b)  (Repealed)
(c)  a person who was a legal practitioner when the unsatisfactory professional conduct or professional misconduct the subject of a complaint allegedly occurred but who is no longer a legal practitioner (in which case this Part applies as if the person were still a legal practitioner).
(2)  However, this Part does not apply:
(a)  to a judicial officer within the meaning of the Judicial Officers Act 1986, or
(b)  to a Justice of the High Court, or
(c)  to a judge of a court created by the Parliament of the Commonwealth,
regardless of whether the unsatisfactory professional conduct or professional misconduct the subject of a complaint allegedly occurred before or after the person’s appointment as such a judicial officer, Justice or judge.
(3)  This Part applies to a person who is or was an interstate legal practitioner only if the person practises or practised as a barrister or solicitor and barrister in this State.
Note. This Part also applies to locally registered foreign lawyers. See section 48ZV.

128A   Investigations not related to complaints under this Part

This Part does not affect the power of a Council to conduct an investigation into the affairs of a legal practitioner under the provisions of any other Part of this Act or under any other Act.
Note. See for example the power of the Law Society Council to appoint a person to conduct an investigation under section 55.
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