The Board will investigate a client's complaint against their attorney. Here's how the investigation process works.
The Board ensures procedural fairness during investigations.
- Providing attorneys with relevant material being considered
- Giving attorneys an opportunity to provide written submissions relating to the investigation
- Ensuring that actual or potential conflicts of interest are addressed appropriately, such as excluding certain Board members from the process.
When investigating a complaint, the Board may appoint one or more investigating officers to carry out investigations. The investigating officer can be a member of the Board, IP Australia or a consultant.
While conducting an investigation, the investigating officer:
- Will act on behalf of the Board
- Will regularly report to the Board
- May discuss the issues and take evidence from an informant
- May request information from attorneys
- May be assisted by legal or other advisers
- Will assess the behaviour of the attorney against the Code of Conduct
- May consider whether there is a pattern of behaviour by the attorney.
The decision about whether to start proceedings against an attorney before the tribunal will always be made by the entire Board.
Stages of an investigation
A professional conduct investigation involves five stages:
- Complaint reviewed to ensure it's an appropriate case
- Attorney responds to the allegations
- Further investigations take place
- Decision whether to start proceedings before the disciplinary tribunal
- Tribunal hears the matter and decides on any penalties.
Stage 1: Initial assessment
When the Board receives a complaint, it reviews the information provided to confirm that:
- The identified person is a registered attorney
- Allegations against the attorney are clear
- There is sufficient indication that the attorney may have breached the Code of Conduct and/or committed an offence under the regulations.
The Board may ask for further information if the initial allegations are insufficient. It also may conduct its own enquiries to gather additional information or corroborate the informant’s account.
Stage 2: Attorney response
If the information suggests there may be grounds for the allegations, the attorney is:
- Given a copy of the allegations and supporting materials
- Asked to respond.
The attorney has 21 days to respond. If necessary, they can request an extension.
The response should include:
- An outline of any relevant history with the informant
- Any supporting documents, such as letters of engagement and emails.
Failure to provide requested information, without a reasonable excuse, is considered unsatisfactory professional conduct.
The attorney may wish to get legal advice before responding to a complaint. They need to consider any continuing responsibilities to their client, especially the need to maintain the confidentiality of a former, current or prospective client.
If the attorney was previously unaware of the client's concerns, they can try to address them directly:
- If a resolution can be found without further Board involvement, the investigation may be closed
- If the Board believes there is a need to protect the public from future misconduct, it may continue the investigation.
If the allegations in the complaint are valid, the attorney can concede and work with the Board to identify how to prevent future issues. For minor or unintentional issues, this may allow disciplinary tribunal proceedings to be avoided.
Stage 3: Further investigation
Once the attorney has responded, an investigating officer will review the materials and decide whether further enquiries need to be made. These might include:
- Contacting the informant for more information
- Contacting the attorney for more information
- Approaching third parties.
The outcome might lead to additional issues being raised, requiring further investigation.
The attorney has the opportunity to respond to all material obtained as part of the investigation.
Investigations will continue until the Board or investigating officer is satisfied there is enough information to decide it is likely that the attorney is guilty of an offence.
Stage 4: Board decision
The Board will consider whether:
- The attorney breached the Code of Conduct
- There is a relevant pattern of behaviour by the attorney
- It is in the public interest to start disciplinary proceedings.
If it is likely the attorney may be found guilty of either unsatisfactory professional conduct or professional misconduct, the Board may start tribunal proceedings. In cases involving unsatisfactory professional conduct, the Board has discretion whether to start tribunal proceedings.
If it is likely the attorney will be found guilty of professional misconduct, the Board must start proceedings.
If the Board decides not to proceed, the attorney and informant will be advised.
Stage 5: Disciplinary tribunal
If the Board decides to start proceedings before the tribunal, it will advise the attorney.
The tribunal president will form a panel to hear the matter and decide whether the attorney is guilty, and if so, any penalties that apply.