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Defending reputation

Defending reputation

By Roland Muller

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Your response to a disciplinary complaint can have lasting consequences for your career and reputation. Here are some tips for young lawyers.

Few things motivate lawyers to scrutinise their professional conduct and ethical practice more than receiving notice of a complaint about a disciplinary matter. A disciplinary complaint under Part 5.2 of the Legal Profession Uniform Law may lead to findings of unsatisfactory professional conduct and/or professional misconduct. If findings of unsatisfactory conduct are made by the Victorian Legal Services Commissioner, or findings of either unsatisfactory conduct or professional misconduct are made by VCAT following prosecution, a range of consequences may be imposed. They include the reputational sanction of a reprimand, financial penalties and (following prosecution in VCAT) orders precluding the lawyer from practising law. Meanwhile, unresolved complaints must be disclosed when renewing practising certificates.

Lawyers facing this potentially career-damaging process and the need to invest time and resources to participate in the investigation often feel aggrieved. Many are not sure how to respond. Some feel surprised, offended or indignant, others worry, yet others say they saw it coming and a minority purports not to care. Whatever the initial reaction, an effective response from the outset is critical to managing a disciplinary complaint.

The following observations are drawn from the writer’s experience in acting for lawyers the subject of a disciplinary complaint under the Uniform Law and previously under the Legal Profession Act 2004 (Vic). While specific approaches should always be tailored to the individual circumstances, these general tips may help to point young lawyers in the right direction.

Understand the complaint

Lawyers the subject of a disciplinary complaint are notified by (a delegate of) the Commissioner, usually following a preliminary assessment of the complaint. Typically, notice is given by letter summarising the complaint and the delegate’s preliminary assessment, with a copy of the written complaint enclosed. Unless the complaint is dismissed summarily, the Commissioner will usually request a response and, pursuant to Uniform Law s371, any information required to assist the investigation. Compliance is compulsory and failure to comply may amount to unsatisfactory conduct or misconduct: Uniform Law s298(h). The first step is to read these documents and understand the allegations, what you are being asked to do in response and applicable time frames. The usual time frame for submissions is 21 days: Uniform Law s279(2).

Identify the respondent

A complaint may name a particular lawyer or a law practice as the respondent: Uniform Law s267(2)(b). To identify the respondent, read the correspondence from the Commissioner and the original complaint (if enclosed). Note any inconsistencies. If you are named in the complaint, review your records to check whether you were involved as alleged. Complainants sometimes blame the wrong practitioner.

Don’t ignore it

Complaints often arise out of difficult or mishandled matters or those involving challenging clients. Tempting as it may be to hope that if you ignore it, the complaint will go away; it won’t. Many respondents create bigger problems by procrastinating or ignoring the complaint, sometimes resulting in findings of unsatisfactory conduct by failing to comply with requirements to provide information or documents to the Commissioner.

Respond professionally

How you respond to a complaint sets the tone. Make sure you act professionally and ethically. Whatever the original complaint, attempts to obfuscate, misrepresent or paper over professional cracks are likely to cause greater problems. Ensure your response is courteous.

Go to the principal’s office

Notify the principal(s) of the legal practice promptly on receipt of the complaint. This may be done directly or via another lawyer who supervises your work. Your candour, prompt action and (where possible) the collation of relevant material and analysis of the complaint will be regarded much more highly than any attempt to deal with it under the radar. That said, it is inadvisable to make the complaint common knowledge. You and the principal(s) of the practice may be the only ones who need to know. Some law practices have a specific partner who deals with these matters.

Establish who will respond to the complaint and whether you and the law practice agree on the position to be taken. The most effective responses may be achievable by working together to respond constructively and without scapegoating. If you are concerned that you may be blamed unfairly or supported inadequately, seek independent legal advice or consult a mentor outside the practice.

Complaint advocacy

Notwithstanding your onerous professional obligations and the far-reaching powers of the Commissioner to compel information and discretionary powers of prosecution, there is plenty of room for advocacy in responding to a complaint. Advocacy in response to disciplinary complaints is not about spinning creative explanations or excuses. It should be directed at analysing, contextualising and clarifying allegations; defining the scope of the investigation; ensuring procedural fairness; putting your best case forward with integrity; and making legitimate use of regulatory ambiguity, inconsistency, compliance with objective standards and relevant precedents when responding. Also, if the investigation seems misdirected or may adversely affect third parties (such as clients or other stakeholders), these concerns can be addressed.

While the Commissioner’s delegates may be experts in professional conduct, there may be nuances in the legal issues, practice area or factual background which you can assist them to understand in investigating the complaint. If some requests for information appear misconceived, or important considerations are overlooked, there are ways of addressing this appropriately. It is comparable to assisting a court to understand and manage a case. Similarly, while you may excel in your practice area, if you are not experienced in responding to complaints, seek representation early (whether internally or from outside your law practice).

Conclusion

Disciplinary complaints are time-consuming and may affect your career and reputation. While many unmeritorious complaints are filtered out early, those requiring investigation can run for a considerable period of time and impose onerous obligations. It is essential to comply with any time frames and compulsory requests for information by the Commissioner, unless they are extended or compliance is waived. Responding, rather than ignoring the complaint, will avoid further problems. Professional and effective advocacy in responding to a complaint is essential to ensure an appropriate resolution and to protect the respondent’s interests.

Roland Müller, LIV Accredited Specialist, Commercial Litigation, Mediator and Senior Associate, Parke Lawyers


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