A lawyer must act responsibly and ethically in their client's interests.
Any person (whether a client or not) who is dissatisfied with the conduct of a lawyer may complain to the Legal Profession Conduct Commissioner (LPCC). Pursuant to s 77C of the Legal Practitioners Act 1981 (SA), the LPCC must investigate a complaint unless:
The LPCC has the power to commence an investigation even if they have not received a complaint [s 77B(1)].
If a lawyer fails in their responsibilities or ethical obligations, their conduct may constitute unsatisfactory professional conduct or professional misconduct. These terms are defined in sections 68 and 69 of the Legal Practitioners Act 1981 (SA) as follows:
unsatisfactory professional conduct includes conduct of a 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 reasonably competent legal practitioners,
professional misconduct includes:
Unsatisfactory professional conduct is misconduct of a lesser kind than professional misconduct. The difference between the two will often be unclear and only capable of definition once the circumstances of the conduct have been fully investigated.
Section 70 of the Legal Practitioners Act 1981 (SA) lists a number of types of conduct capable of constituting unsatisfactory professional conduct or professional misconduct. It includes, but is not limited to:
The types of behaviour by a lawyer that the LPCC can investigate may amount to unsatisfactory professional conduct or professional misconduct and include but are not limited to:
The LPCC does not have the power to:
The LPCC will advise the complainant where they determine that there has been unsatisfactory professional conduct or professional misconduct by a lawyer arising out of the complaint investigation. The LPCC has no power to make a finding of negligence against the lawyer. If the LPCC has reason to believe that a person has suffered a loss as a result of unsatisfactory professional conduct or professional misconduct by a lawyer, they may advise that person accordingly.
If, after investigation, the LPCC is satisfied that there is evidence of unsatisfactory professional conduct and determines not to lodge a complaint with the South Australian Civil and Administrative Tribunal, the LPCC may exercise one of more of the following powers [s 77J(1)(a)]:
With the consent of the lawyer, the LPCC may exercise one of more of the following powers [s 77J(1)(b)]::
If, after investigation, the LPCC is satisfied that there is evidence of professional misconduct and determines not to lodge a complaint with the South Australian Civil and Administrative Tribunal, the LPCC may exercise one of more of the following powers [s 77J(2)]:
If the LPCC determines that the lawyer has been guilty of unsatisfactory professional conduct or professional misconduct, the LPCC may refer the matter to the South Australian Civil and Administrative Tribunal.
Lawyer's fitness to practise
The LPCC may, by written notice, require a lawyer to undergo a health assessment by a medical practitioner or psychologist if the LPCC reasonably believes that a lawyer may be suffering from an illness or a physical or mental impairment, disability, condition or disorder (including an addiction to alcohol or a drug) that has, or may, detrimentally affect their ability to practise the law [Legal Practitioners Act 1981 (SA) s 77AA(1)]. The LPCC may, after considering a report resulting from a health assessment, if satisfied that the legal practitioner is not a fit and proper person to practise the law, order that the lawyer undertake any treatment recommended, receive counselling, or participate in a program of supervised treatment or rehabilitation. The LPCC may also require the lawyer to be supervised or may suspend their practising certificate (for a period no more than 3 months) [s 77AA(7)]. The lawyer may apply to the South Australian Civil and Administrative Tribunal within one month to review the LPCC's decision [s 77P].
An Australian-registered foreign lawyer must not engage in any conduct in practising foreign law that would, if the conduct were engaged in by an Australian legal practitioner in practising Australian law in this jurisdiction, be capable of constituting professional misconduct or unsatisfactory professional conduct.
If, following a determination made by the Legal Profession Conduct Commissioner (LPCC) finding either unsatisfactory professional conduct or professional misconduct, the person making the complaint is not satisfied with the determination, they may apply for a review of the determination to the South Australian Civil and Administrative Tribunal SACAT. Lawyers may, in certain circumstances, also apply for a review by SACAT.
An application for review must be made within one month unless there are good reasons to extend the time period [Legal Practitioners Act 1981 (SA) s 77P].
A finding of professional misconduct, whether made by the Legal Profession Conduct Commissioner (LPCC), the South Australian Civil and Administrative Tribunal or the Supreme Court, must be published on the Disciplinary Register. A less serious finding of unsatisfactory professional conduct may be included on the Register, at the discretion of the LPCC. The Disciplinary Register is published on the LPCC website.
The LPCC may enable information to be removed from the Register in circumstances prescribed by regulation [Legal Practitioners Act 1981 (SA) s 89C(7a)].
Lawyers found guilty of misconduct in other jurisdictions will have their details published on their state's Disciplinary Register.
We embrace diversity and welcome all people, irrespective of culture, faith, sexual orientation and gender identity.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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