Legal Profession Act 2004 No 112
Current version for 4 July 2014 to date (accessed 29 November 2014 at 05:02)

Division 1 Preliminary

494   Purposes and objects

(1)  The purposes of this Chapter are as follows:
(a)  to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of clients of law practices and the public generally,
(b)  to promote and enforce the professional standards, competence and honesty of the legal profession,
(c)  to provide a means of redress for complaints about lawyers,
(d)  to enable lay persons to participate in complaints and disciplinary processes involving lawyers to ensure that community interests and perspectives are recognised,
Note. Sections 695 and 698 provide for lay representation on committees of the Bar Association, Bar Council, Law Society and Law Society Council.
(e)  to give complainants, lawyers and other participants in the system immunity from civil liability for communications made by them in good faith in connection with the complaints and disciplinary system.
(2)  The objects of this Chapter relating to lay persons and the clients of law practices are as follows:
(a)  to give every person the right to complain about the conduct of lawyers,
(b)  to ensure that information is readily available to lay persons about the means of redress that are available under the scheme,
(c)  to give clients of law practices access to sufficient advice and assistance in order to make complaints in accordance with their rights and responsibilities under this Chapter,
(d)  to promote transparency and openness for lay persons at all levels of the operation of the scheme, subject to the need to preserve confidentiality in appropriate circumstances,
(e)  to provide an opportunity for mediation of consumer disputes relating to legal services,
(f)  to provide complainants with a reasonable opportunity to comment on statements of the lawyer against whom the complaint is made before the complaint is disposed of,
(g)  to ensure that complainants receive adequate notice of the commencement and status of the disciplinary process at relevant stages of the process (including notice of the dismissal of complaints and the reasons for the dismissal),
(h)  to give complainants the right to seek an independent review of decisions of Councils to dismiss complaints or reprimand Australian legal practitioners.
(3)  The objects of this Chapter relating to the providers of legal services are as follows:
(a)  to ensure that information is readily available to lawyers about the means of redress that are available under the scheme,
(b)  to ensure that the rules of natural justice (being rules for procedural fairness) are applied to any disciplinary proceedings taken against lawyers,
(c)  to ensure that lawyers are aware of the standards of honesty, competence and diligence expected of them.
(4)  The Commissioner is to keep under review the provisions and operation of this Chapter for the purpose of:
(a)  ascertaining whether the scheme established by this Chapter meets the purposes and objects of this Chapter, and
(b)  identifying modifications that may ensure that those purposes and objects are better met,
but this subsection does not affect the making or carrying out of other arrangements for reviewing the provisions or operation of the provisions of this Act or of this Act generally.

495   Definitions

In this Chapter:

compensation order means an order under Part 4.9 (Compensation).

complaint means a complaint under this Chapter.

conduct means conduct whether consisting of an act or omission.

disciplinary application means an application made to the Tribunal under section 551 (Commencement of proceedings) with respect to a complaint against an Australian legal practitioner.

investigation means an investigation under this Chapter by the Commissioner or a Council into a complaint, and includes an independent investigation under section 532 (Independent investigation of certain complaints).

loss means loss of a pecuniary nature, but does not include non-economic loss within the meaning of the Civil Liability Act 2002.

official complaint means a complaint made by the Commissioner or a Council.

relevant 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.

496   Unsatisfactory professional conduct

For the purposes of this Act:

unsatisfactory professional conduct includes conduct of an Australian legal practitioner 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 Australian legal practitioner.

497   Professional misconduct

(1)  For the purposes of this Act:

professional misconduct includes:

(a)  unsatisfactory professional conduct of an Australian legal practitioner, where 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 occurring in connection with the practice of law or occurring 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.

(2)  For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

498   Conduct capable of being unsatisfactory professional conduct or professional misconduct

(1)  Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:
(a)  conduct consisting of a contravention of this Act, the regulations or the legal profession rules,
(b)  charging of excessive legal costs in connection with the practice of law,
(c)  conduct in respect of which there is a conviction for:
(i)  a serious offence, or
(ii)  a tax offence, or
(iii)  an offence involving dishonesty,
(d)  conduct of an Australian legal practitioner as or in becoming an insolvent under administration,
(e)  conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth,
(f)  conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice),
(g)  conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law),
(h)  conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
(2)  Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.
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