This glossary serves to provide some explanation for words commonly used by the Legal Profession Conduct Commissioner and his office.
Act (the Act)
Legal Practitioners Act 1981 as amended (in July 2014) by the Legal Practitioners (Miscellaneous) Amendment Act, 2013 and (in November 2016) by the Legal Practitioners (Miscellaneous) Amendment Act, 2016.
Same as “Taxation of Costs”. That is, if a lawyer’s fees are disputed, then an application can be made to the Supreme Court asking the Court to determine (tax / adjudicate) the costs properly payable by the client.
A particular complaint made against a lawyer, which is yet to be proven. A complaint may contain a number of allegations.
The procedure which allows a party to challenge a decision made by the Commissioner, the Tribunal or the Court.
The person lodging an appeal.
The Legal Practitioners Conduct Board, which was the predecessor regulatory body before the Commissioner.
A failure to comply with a legal obligation or requirement to do or not do something.
Burden of proof
The obligation to prove what is alleged.
A final decision of the Commissioner, which cannot be appealed.
A Caveat is a warning placed on the title to a property, indicating that a person has an unregistered interest in the property that must be dealt with before there can be any further dealings with the property.
The Legal Practitioners Complaints Committee, whcih was the predecessor regulatory body before the Board.
The person making a complaint to the Commissioner.
The process of resolving a dispute by negotiation between the complainant and lawyer with the assistance of a trained conciliator who is (usually) employed by the Commissioner.
A person employed by the Commissioner who is trained to conduct conciliations. The conciliator’s role is to assist the complainant and the lawyer to resolve their dispute. The conciliator will not decide the dispute. If a mutual agreement is not reached then the complaint is referred back to the Commissioner’s investigator.
An act or omission by a lawyer.
The protection against disclosure of information to an unauthorised person(s).
Conflict of interest
A situation where a lawyer’s own interest, or duty to someone else, may be in conflict with their duty to their client or others.
The power of the Commissioner to allow others to make some of the Commissioner’s decisions, and to exercise some of the Commissioner’s powers, under the Act.
A decision of the Commissioner.
Money paid out to another by a lawyer on behalf of the client.
The process of disciplining a lawyer who has been found guilty of professional misconduct or unsatisfactory professional conduct.
Proceedings before the Tribunal or Supreme Court where there is evidence that a lawyer may be guilty of professional misconduct or unsatisfactory professional conduct.
Where a fact(s) or circumstance(s) is not agreed.
Undue pressure placed on someone to force them to do something.
The material provided to the Commissioner to support / refute an allegation. Evidence submitted to the Commissioner can include documents, conversations and witnesses, but it must be lawfully obtained for it to be utilised.
The determination of a factual issue by the Commissioner, Tribunal or Court.
An intentional act or omission done to deceive someone.
A claim that is lacking in merit, that has little or no chance of being successful.
The process of gathering evidence and information about a complaint.
A person appointed or authorised by the Commissioner to investigate a complaint against, or the conduct of, a lawyer.
The extent of the authority of the Commissioner to investigate and determine matters brought to him. The Commissioner’s functions are set out in section 72 of the Act.
Laws made by Parliament.
A person appointed or authorised by the Law Society in respect of a lawyer who has died, ceased to practise or otherwise isn't attending properly to the affairs of his or her practice. A manager has the power to take possession of, and to conduct urgent business associated with, the lawyer's practice, as well as to deal with any trust money held by that lawyer.
A lawyer owes a duty to provide professional services to a client with reasonable care and skill. If a lawyer breaches that duty then they may have been negligent.
A legal requirement to do, or not do, something.
Own motion / own initiative
A decision of the Commissioner to investigate a lawyer without a complaint having been made.
Occurs where a lawyer charges a client costs and/or disbursements which are in excess of the amount he/she is legally entitled to charge.
Details of an allegation or complaint.
A certificate issued annually by the Law Society of South Australia that entitles a lawyer to practise law.
Professional mentoring agreement
An agreement between the Commissioner and a lawyer (or the Law Society and a lawyer) to appoint a professional mentor to provide guidance and assistance to that lawyer to ensure his or her professional obligations are met. Generally, see section 90B of the Act.
Professional misconduct is defined in section 69 of the Act. There are two types of professional misconduct:
- The first occurs when a lawyer engages in Unsatisfactory Professional Conduct but he or she does so substantially or consistently.
- The second is where a lawyer’s conduct, either professionally or outside of the practice of the law, would justify a finding that the lawyer is not a fit and proper person to practise law.
A severe reproof to a practitioner regarding his or her conduct.
Roll of Practitioners
A roll maintained by the Supreme Court of South Australia which formally records that the Court has admitted a person to be a lawyer in South Australia. Once admitted, a lawyer is entitled to apply to the Law Society for a certificate authorising him/her to practise law.
The person against whom court proceedings or an appeal has been brought.
An order of the Supreme Court that a lawyer’s name be removed from the Roll of Practitioners. Once struck off, the lawyer is no longer able to practise law, unless and until he or she applies successfully to the Court be re-admitted.
A lawyer’s right to practise law may be subject to conditions which can include that he/she be supervised by an experienced lawyer. The terms of such supervision may vary. If there is a finding of Unsatisfactory Professional Conduct or Professional Misconduct, part of the disciplinary action against the lawyer concerned may be an order that the lawyer be supervised.
A person appointed or authorised by the Law Society in respect of a lawyer who has died, ceased to practice or otherwise isn't attending properly to the affairs of his or her practice. A supervisor has the power to deal with any trust money held by the lawyer.
The Supreme Court is the superior court of South Australia, dealing with the more important civil cases and the most serious criminal matters. It also has the overall responsibility to regulate the legal profession. It hears appeals from the Legal Practitioners Disciplinary Tribunal, and in some circumstances the Commissioner takes proceedings against a lawyer directly to the Court. The Court has the power to order a lawyer’s name be struck off the Roll of Practitioners.
As an alternative to being struck off, a lawyer’s practising certificate may be suspended for a period of time. During that period the lawyer is prohibited from practising law other than in accordance with the terms of the suspension.
Taxation of costs
Same as “Adjudication”. That is, if a lawyer’s fees are disputed, then an application can be made to the Supreme Court asking the Court to determine (tax / adjudicate) the costs properly payable by the client.
The Legal Practitioners Disciplinary Tribunal is established under the Act for the purposes of hearing disciplinary proceedings against lawyers. It has 15 members - 10 of them lawyers and 5 of them lay people. Tribunal hearings will consist of either 3 members or 1 member, depending on the nature of the hearing. The Tribunal considers charges laid before it, usually by the Commissioner but occasionally by a complainant, or appeals against determinations of the Commissioner.
Trust money is defined in Schedule 2 of the Act. It means money entrusted to a law practice in the course of or in connection with the provision of legal services by the practice to which the practice is not wholly entitled.
Unsatisfactory professional conduct
Unsatisfactory Professional Conduct is defined in section 68 of the Act. It relates only to the conduct of a lawyer when he or she is practising law. This type of misconduct occurs when a lawyer falls short of the standard of competence and diligence that a member of the public is entitled to expect when engaging a lawyer’s services.
A person who is subject to an order under section 39 of the Supreme Court Act, 1935, prohibiting him or her from instituting proceedings (or proceedings of a particular class).