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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Legal Professional Negligence (WA)


Legal professional negligence is broadly defined as a failure by a lawyer to take reasonable care and skill when acting for a client. A lawyer owes a duty of care to a client, and the lawyer will have acted negligently if they breach that duty and the client suffers injury, loss or damage as a result. The two main forms of legal professional negligence are unsatisfactory professional conduct and professional misconduct, and in Western Australia these are contained in the Legal Profession Act 2008.

Unsatisfactory professional conduct

Unsatisfactory professional conduct is conduct in the practice of law that falls short of the standard of competence and diligence that the public is entitled to expect of a reasonably competent legal practitioner.

Professional misconduct

Professional misconduct by a lawyer includes conduct that:

  • involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;
  • whether in the practice of law or outside of it, would justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

Examples of unsatisfactory professional conduct or professional misconduct

The courts have determined that to prove unsatisfactory professional conduct and professional misconduct, the conduct needs to be a result of more than “mere carelessness”.

Section 404 of the Act lists conduct that can be considered to constitute the two types of offences:

  • a contravention of the Act;
  • charging excessive costs;
  • conduct that led to a conviction for a serious offence, a tax offence or an offence involving dishonesty;
  • conduct of a lawyer as or becoming an insolvent under administration;
  • conduct of a lawyer in becoming disqualified from managing a corporation;
  • failure to comply with an order of the Legal Profession Complaints Committee, State Administrative Tribunal (SAT) or Supreme Court;
  • failure to comply with a compensation order made under the Act or a corresponding law.

The laws apply whether or not:

  • the lawyer is local;
  • the lawyer holds a local practising certificate;
  • the lawyer holds an interstate practising certificate;
  • the lawyer has an office in the jurisdiction;
  • the person making a complaint about the conduct lives or works in the jurisdiction.

Complaints

A complaint about a lawyer can be made to the Legal Profession Complaints Committee by the Attorney-General, Legal Practice Board, Law Society, another lawyer or any person with a direct personal interest in the matter. A complaint cannot be dealt with more than 6 years after the alleged conduct unless the committee determines this to be just and fair or in the public interest. The committee can decide a complaint or refer it to the SAT for determination. A complainant or lawyer who does not agree with a committee decision can apply to the SAT for a review of the decision.

State Administrative Tribunal (SAT)

The SAT has jurisdiction to make a finding that a lawyer has engaged in unsatisfactory professional conduct or professional misconduct. It can report that finding to the Supreme Court or make an order.

The SAT can order that:

  • the lawyer’s practising certificate be suspended or cancelled;
  • a local practising certificate not be granted to the lawyer before the end of a specified period;
  • conditions be imposed on the lawyer’s practising certificate and for a specified time;
  • the lawyer be publicly reprimanded, or if there are special circumstances, it can privately reprimand the lawyer;
  • the lawyer’s practice be periodically inspected.

It can also order that the lawyer:

  • pay a fine of up to $25,000 to the Legal Practice Board;
  • complete a specified course of further legal education;
  • pay compensation;
  • pay legal costs;
  • provide legal services to the complainant for free or at a specified cost;
  • be supervised for a specified period;
  • refrain from certain law practices;
  • undergo counselling or medical treatment;
  • engage an accountant or other financial specialist;
  • seek practice management advice from a specified person.

The Supreme Court can make any order the SAT can, as well as order that the lawyer’s name be removed from the roll.

Compensation

Under the Act, the complaints committee can order compensation if it is reasonably likely the lawyer will be found guilty of unsatisfactory professional conduct. The SAT can order compensation if it finds the lawyer guilty of unsatisfactory professional conduct and professional misconduct but only if:

  • the complainant has suffered loss as a result of the conduct;
  • it is in the interests of justice; and
  • the complainant has not received or is not entitled to receive compensation from a solicitors’ fund or a court order.

Compensation awarded by the complaints committee is limited to $10,000 and by the SAT to $25,000, unless the lawyer consents to a higher amount.

For advice or representation in any legal matter, please contact Armstrong Legal.

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