From the Legal Profession Board

Following concerns expressed by the Society and practitioners, the Board has provided the following information explaining its role in assisting complainants. The Society would welcome feedback on the issue.

The Board’s Role in Assisting Complainants
The Legal Profession Board of Tasmania (the Board) recognises that practitioners may on occasion be concerned in relation to the formulation (or identification of problematic conduct)  within complaints by Officers of the Board. In more recent times, some practitioners whom have had a complaint made against them, have expressed their concern when the complaint allegations have  been extended beyond what was originally complained of by the complainant.

The Legal Profession Act 2007 (the Act) at s.427 (5)  directs the Board to take all reasonable steps to ensure that a person who wishes to make a complaint is given such assistance as is necessary. Further, at s.511(c) of the Act, the Board must provide assistance to members of the public in making complaints.

In the Board’s view, the public interest requires that any conduct capable of amounting to unsatisfactory professional conduct or professional misconduct, which may have been omitted or missed from inclusion in a complaint by a complainant, ought be properly considered by the Board.

This may result in the omitted or missed conduct being included in the complaint. Section 588 of the Act relevantly prescribes that if an investigator becomes aware of any matter in the course of a complaint investigation which may constitute conduct capable of amounting to unsatisfactory professional conduct or professional misconduct, the investigator must refer the matter to the Board to consider whether disciplinary action should be taken against the practitioner.

In other words, there is a positive obligation for the Board, irrespective of whether conduct is raised in a complaint or otherwise, to consider whether action should be taken in respect of conduct capable of amounting to a disciplinary matter.

Frank Ederle