Discipline application guidelines and co-operation policy

What happens after an investigation?

Once an investigation into a complaint or investigation matter is complete, the Commissioner may either dismiss the matter or, as the Commissioner considers appropriate, commence a discipline application with a disciplinary body.

When will a matter be dismissed?

The test for dismissal of a complaint or investigation matter requires the Commissioner to be satisfied that either:

there is ‘no reasonable likelihood’ of a finding by a disciplinary body of unsatisfactory professional conduct or professional misconduct by an Australian legal practitioner (or misconduct for a law practice employee). This is known as the ‘reasonable likelihood test’; or
it is in the public interest to do so—the ‘public interest test’.

When will the Commissioner make a discipline application?

Because of the application of these tests to dismiss a complaint, the Commissioner will only consider it appropriate to commence disciplinary proceedings when the evidence establishes that there is both a reasonable likelihood of a finding by a disciplinary body of unsatisfactory professional conduct or professional misconduct (or misconduct for law practice employees) and it is in the public interest to commence disciplinary proceedings.

How are the tests applied and what is considered?

The reasonable likelihood test

To make a finding of unsatisfactory professional conduct or professional misconduct against a legal practitioner, the Act requires a disciplinary body to be satisfied that the Commission has proved the allegations on ‘the balance of probabilities.’ The degree of satisfaction required by the disciplinary body varies with the seriousness of the consequences for the legal practitioner or law practice employee, if a finding is made.

As such, the Commissioner will not make a discipline application unless they consider there is reliable evidence which would support a finding of either unsatisfactory professional conduct or professional misconduct on the balance of probabilities. The Commissioner will assess the available evidence and consider a range of factors, including:

the sufficiency of the evidence available to the Commission to meet the requisite standard
any evidence or submissions raised by the legal practitioner that would mitigate against a finding the conduct in question occurred or that the alleged conduct would be properly characterised as unsatisfactory professional conduct or professional misconduct
previous findings by a disciplinary body where the facts of the matter were similar
whether any evidence might be excluded (at common law or under the Act)
the availability and willingness of relevant witnesses to give evidence
the credibility or reliability of any witnesses
any other factors the Commissioner believes might impact the likelihood of a finding of unsatisfactory professional conduct or professional misconduct.

The public interest test

The public interest test requires the Commissioner to balance the public interest factors for and against making a discipline application. This requires consideration of factors which are common to members of the public, rather than matters that concern private or personal interests. Public interest considerations can also include those that may apply for the benefit of an individual.

The object of disciplinary action against legal practitioners is to protect the public and the reputation of the profession. Accordingly, the Commissioner’s position is that the public interest does not require that a discipline application be made simply because the reasonable likelihood test is satisfied. Other factors must be considered before a decision is made.

The Commissioner recognises that there are sometimes equally effective and more cost-efficient ways to protect the interests of the public and the reputation of the profession other than a discipline application.

When exercising her discretion and considering the application of the public interest test to a complaint or investigation matter, the Commissioner may have regard to the public interest considerations below. The list is not exhaustive and what are relevant public interest considerations for a matter are assessed on a case-by-case basis.

the seriousness of the alleged conduct
the need to protect the public from the respondent
the impact on public confidence in the integrity of the profession and the disciplinary process if an application isn’t made
the prevalence of the type of alleged conduct, and the need to deter other lawyers, legal practitioners or law practice employees from conduct of this nature
whether the alleged conduct raises a matter of law or professional practice of general importance
whether the alleged conduct involved dishonesty, taking advantage of vulnerable clients, third parties or was pre-meditated
whether the alleged conduct was as a result of a genuine mistake or misunderstanding
whether there is information available to be satisfied it is unlikely that the conduct would be repeated
the behaviour and responses of the respondent during the investigation, including whether they acknowledged their conduct, apologised, showed any remorse, tried to remedy any harm or loss caused and their level of cooperation, honesty and frankness with the Commission’s investigation.
an entitlement the complainant or others adversely affected by the alleged conduct may have to compensation if a finding of unsatisfactory professional conduct or professional misconduct is made by a disciplinary body
the respondent’s age or relevant health conditions
any previous disciplinary findings against the respondent or prior instances of similar alleged conduct that may have been dismissed on a public interest basis
appropriateness of the use of public resources in proceeding with a discipline application, having regard to matters such as the likely outcome, the length and expense of a proceeding, etc
whether similar outcomes to a discipline proceeding have been achieved, for example by an undertaking by the respondent to complete particular courses, to undertake additional legal education, to be mentored or supervised, or to engage with therapeutic services on a regular basis

Generally speaking, the more serious the alleged unsatisfactory professional conduct or professional misconduct, the less likely the Commissioner will exercise their discretion to dismiss a complaint or investigation matter in the public interest, as protection of the public and the reputation of the profession will outweigh other public interest considerations.

Co-operation policy

Respondents who are being investigated are encouraged to assist the Commission as it conducts it work. This helps to bring matters to a swift conclusion and co-operation weighs in favour of public interest considerations that do not support discipline applications.

Legal practitioners have obligations, ethical and otherwise, to assist the Commission as it carries out its functions.

Assisting the Commission or co-operating in the following ways, gives weight to public interest considerations in favour of not making a discipline application or in favour of leniency:

volunteering information or evidence of conduct that contravenes the Act, professional rules or other conduct of interest to the Commission. If the Commission is unaware of the matter or has insufficient evidence for a discipline application, even greater weight may be given to this.
giving full and frank disclosure of the conduct in question and any documentation or other evidence that may be available or known to the person.