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Ethics: For the protection of the public

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Cite as: (2004) 78(9) LIJ, p. 81

Professional disciplinary proceedings serve to highlight the profession’s public service ideal.

Professional disciplinary proceedings serve to highlight the profession’s public service ideal.

Professional disciplinary proceedings against lawyers are unique, chiefly because they aim to protect the public from lawyers’ misconduct.[1]

Yet, because defended matters of this kind take the form of adversarial proceedings – the impugned lawyer seeking to avoid exposure to a significant penalty – the courts have been led repeatedly to remind litigants that the nature and aim of such proceedings affect the applicable procedure and the factors relevant to the tribunal or court determination.

Professional disciplinary proceedings are directed chiefly at protecting the public, not at punishment, which is why the civil standard of proof applies rather than the criminal. It also explains why, unlike the accused in a criminal matter, a lawyer-defendant must cooperate reasonably in the process and avoid an unduly combative approach.

Behaviour inconsistent with this duty may have an impact on the appropriate disciplinary response.[2] So, although the behaviour of a criminal defendant at trial will not ordinarily affect the criminal sanction imposed,[3] it can affect the sanction in disciplinary proceedings.[4] The protective function may also allow a court or tribunal greater leeway to relax procedural requirements than in ordinary adversarial litigation.[5]

The protective aim of disciplinary proceedings may, moreover, justify a sanction more severe than if punishment was the object. Although diminished capacity has a mitigating effect on penalty in the criminal law, this does not transpose to the lawyer guilty of professional misconduct.

In Legal Practitioners Conduct Board v Trueman,[6] involving a lawyer struck off for misconduct explainable by a psychiatric condition rather than dishonesty, Doyle CJ remarked: “[i]f the Court were concerned only with punishment, it might be possible to take a more merciful course”.

Disciplinary proceedings focus more on the personal conduct of the lawyer than its consequences, which further distinguishes them from criminal proceedings. Punishment by the criminal law for behaviour the subject of disciplinary proceedings thus carries little weight in determining the appropriate disciplinary order.

The fact that a lawyer has already paid his or her debt to society via a criminal penalty, and suffered public ignominy as a result, does little in theory to mitigate a disciplinary response predicated on protecting the public.[7]

It also explains why, though often presented at disciplinary proceedings and not irrelevant, testimonials on behalf of the lawyer do not unduly distract the tribunal, which inquires into the lawyer’s “intrinsic character” evidenced by the behaviour the subject of the proceedings.[8]

Just as disciplinary proceedings are not criminal in nature or purpose, nor are they akin to ordinary civil litigation. Generally speaking, disciplinary proceedings are not designed to provide a remedy to the particular individual injured by a lawyer’s improper conduct; civil processes between lawyers and their clients fulfil this function.

For example, if no client has lost money as a result of a lawyer’s misconduct, or that the lawyer is committed to ensuring such an outcome, that is irrelevant to its characterisation as misconduct.[9] Yet it may potentially have an impact on the disciplinary response.[10]

Professional disciplinary proceedings nonetheless do exhibit hallmarks of both civil and criminal proceedings. The Supreme Court and the Legal Profession Tribunal each have a statutory jurisdiction to make compensation orders against a lawyer in disciplinary proceedings.[11]

Also among the court and tribunal’s disciplinary sanction arsenal is the imposition of a fine, which appears punitive in character.[12] To this end, courts have not denied the deterrent effect of disciplinary orders, but have emphasised the link between deterrence and the central protective aim.[13] Protection of the public may thus justify a “punitive response”. Such a response shows the grave view the court or tribunal takes of the misconduct; a failure to mark its censure and disapproval via a punitive response in the case of grave misconduct may be viewed by the public as almost tacit approval.[14]

The uniqueness of professional disciplinary proceedings, driven by their almost undivided focus on protecting the public and thus fostering public confidence in the legal system, serves as a useful reminder of the legal profession’s main calling to public service.

GINO DAL PONT is associate professor, Faculty of Law, University of Tasmania.

[1] Weaver v Law Society of New South Wales (1979) 53 ALJR 585 at 587 per Mason J.

[2] See, for example, Council of the Queensland Law Society Inc v Whitman [2003] QCA 438.

[3] R v Gray [1977] VR 225 at 231.

[4] Hannebery v Legal Ombudsman (unreported, FC(VIC), 17 December 1998) at [22] per Tadgell JA.

[5] See, for example, Law Society of South Australia v Jordan (1998) 198 LSJS 434 (charge allowed to be amended even though such an amendment might not have been allowed in ordinary adversarial proceedings).

[6] [2003] SASC 58 at [22].

[7] See, for example, Barristers’ Board v Darveniza [2000] QCA 253.

[8] Barristers’ Board v Young [2001] QCA 556 at [22] per de Jersey CJ.

[9] Council of the Queensland Law Society Inc v Wakeling [2004] QCA 42 at [27] per de Jersey CJ.

[10] See, for example, Legal Practitioners Conduct Board v Boylen [2003] SASC 241 at [16] per Mullighan J, at [75] per Debelle J

[11] Legal Practice Act 1996 (Vic), ss133(1)(a), 159(1)(a), 163 and 171A(4).

[12] Note 11 above, ss159(1)(b), 160(1)(b), 160(1)(c) and 171A(4).

[13] See, for example, Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441 per Mahoney JA.

[14] Legal Practitioners Conduct Board v Boylen, note 10 above at [72] per Debelle J.


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