When the Board seeks a response from a legal practitioner we are not assuming that there is any impropriety on the part of the practitioner. We are simply seeking the practitioner's version of events, which may include a response to particular questions. Often a matter will be adequately explained and finalised after receipt of an explanation from a practitioner.

However, you do need to respond to the Board. Do not ignore letters or phone calls from the Board. That in itself may amount to misconduct.

Do not respond in anger, and keep in mind that your letters will not only be seen by the complainant, but possibly by the Board Members (and perhaps others if the matter were to proceed to a Tribunal or Court). Notwithstanding that a practitioner may feel frustrated, upset or angry upon receiving a complaint, courteous communication with the Board is expected.

Even if misconduct is not found often a client may express grievance or dissatisfaction with the quality of the service they have received.

Requesting more time to respond

If you feel inadequate time has been given for you to respond please contact the Board. The Board will accede to reasonable requests for an extension of time although a matter cannot be allowed to remain unresolved indefinitely.

Transparency of Investigation

• If you wish to discuss this aspect of the matter you should speak to the investigating solicitor at the Board.

• On occasions, as part of the investigation, the Board may call for the practitioner's file or speak to other witnesses and take statements from them.

Supreme Court authority that a practitioner has an obligation to assist the Board

The Full Court has indicated that a practitioner has a professional obligation to assist the Board with its enquiries.

See The Law Society of South Australia v Murphy (1999) 201 LSJS 456 at page 458 where His Honour Chief Justice Doyle stated:-

"…, there is a pattern of prolonged and persistent disregard of inquiries from the Legal Practitioners Complaints Committee. There can be no doubt about the obligation of a practitioner to assist that body with its inquiries."

The Law Society of South Australia v Jordan (1998) 198 LSJS 434

"…A practitioner whose conduct is the subject of an inquiry by the Board has a duty to assist the Board in its inquiries: Johns v Law Society of New South Wales [1982] to NSWLR 1 at 6, Re Veron; ex parte Law Society of NSW (1966) 84 WN (Pt 1) (NSW) 136 at 141-142. That does not mean that the solicitor must disregard his own interests. But it does mean that there is an obligation upon the solicitor to respond to reasonable requests for information, particularly when one takes into account the fact that often the solicitor will have a better knowledge and understanding of the matter, the subject of the complaint, than will the client who complains."

Be frank and honest with the Board

Practitioners should be frank and completely honest in any dealings with the Board or the Legal Practitioners Disciplinary Tribunal.

Two recent Judgments of the Full Court of the Supreme Court refer to this issue.

In the matter of Legal Practitioners Conduct Board v Phillips (2002) 83 SASR 467 the Court noted that the response given by the practitioner was an attempt to and did in fact mislead the Board. The Court found that this conduct in itself was unprofessional conduct.

In the matter of Legal Practitioners Conduct Board v Hay (2001) 83 SASR 454 the Court referred to a "persistent disregard of proper enquiries and demands from the Board together with the aggravating behaviour before the Tribunal".

It also made reference to the position of a sole practitioner. The Court acknowledged the particular stresses on a sole practitioner and indicated that many "lack some of the professional support systems which are more readily available to those practitioners who practise in firms".

The Court further stated:

"Many are subjected to stresses not experienced by those who have ready access to appropriate support. There is no evidence to suggest, however, that other members of the profession are unwilling to provide that support or that the Law Society of South Australia, as a representative of the practising profession, does not make available appropriate facilities. Those who practise as sole practitioners must learn to take advantage of those facilities. They cannot be imposed by this Court or by the Law Society."

The Board's compulsory powers

The Board has compulsory powers to call for a response from a practitioner. (Section 76(4a)). The Board can also require production of documentation (Section 76(3)). These powers are used as a matter of last resort by the Board, and usually after attempts to secure a response or the production of documentation have failed. Such Notices are also used on occasions where practitioners request them in situations where legal professional privilege is an issue, for example, when the complainant is not the client (refer to Section 95C of the Act).

Failure to comply with a Notice may amount to an offence

If a Notice is not complied with, then the failure may amount to an offence.

In 2002 the Crown Solicitor's Office brought a prosecution against a practitioner for a breach of two Notices issued by the Board. The Court sentenced the practitioner to four months imprisonment but suspended the sentence on certain conditions including entering into a two year good behaviour bond.

Who can give me assistance to prepare a response to the Board?

The Board's legal staff will explain the Board's processes and procedures, but cannot give you advice as to how to frame your response in relation to the substantive issues. Many practitioners, including those at the independent bar, have made themselves available to assist practitioners. The PAPA panel of the Law Society will provide assistance to practitioners in such circumstances.

For details refer to Law Links.

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