Operating Procedures Manual - Current as at 21 July 2010 · A1 – High quality and transparency...

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TABLE OF CONTENTS

DEFINITIONS ..................................................................................................................................................................... 1

FUNDAMENTAL PRINCIPLES OF INVESTIGATION ....................................................................................................... 6

PART A INVESTIGATION .................................................................................................................................................... 6 A1 – High quality and transparency........................................................................................................................... 7 A2 – Ability to Withstand Internal and External Scrutiny............................................................................................ 8 A3 – Ethical Behaviour .............................................................................................................................................. 9

THE INVESTIGATIVE PROCESS .................................................................................................................................... 10

OVERVIEW OF PROCESS................................................................................................................................................. 10 THE SIX STEPS OF AN INVESTIGATION............................................................................................................................. 11 INTRODUCTION............................................................................................................................................................... 11 STEP 1 – RECEIPT AND ASSESSMENT OF COMPLAINTS .................................................................................................... 12 STEP 2 – PLANNING ....................................................................................................................................................... 12

2.1 The Investigation Plan.................................................................................................................................... 12 STEP 3 – CONDUCTING THE INVESTIGATION .................................................................................................................... 13

3.1 The Investigation Process.............................................................................................................................. 13 3.2 Requiring an Explanation from the Person being Investigated ...................................................................... 14 3.3 Requiring the Person being Investigated to Produce a Document................................................................. 14 3.4 Procedure for Investigator’s Response to Receipt of Notice Explanations by Person being Investigated ..... 14 3.5 Failure of a Practitioner to Comply with a s443(1) Requirement.................................................................... 14 3.6 Failure to Respond to a s443(3) Notice.......................................................................................................... 15 3.7 Rules of Evidence .......................................................................................................................................... 15 3.8 Maintaining Confidentiality ............................................................................................................................. 16 3.9 Procedural Fairness....................................................................................................................................... 16 3.10 Providing a copy of the written complaint to the subject practitioner ............................................................. 16 3.11 Information Management............................................................................................................................... 18 3.12 Common criticisms of the investigation process............................................................................................ 18

STEP 4 - INTERVIEWING .................................................................................................................................................. 18 4.1 Interviews....................................................................................................................................................... 18 4.2 Managing Witnesses Including the Complainant and the Subject Practitioner .............................................. 19

STEP 5 - REPORTING...................................................................................................................................................... 19 5.1 The Investigation Report ................................................................................................................................ 19 5.2 Standards of Proof ......................................................................................................................................... 21 5.3 Briefs of Evidence .......................................................................................................................................... 21 5.4 Access to Information..................................................................................................................................... 21

STEP 6 – FINALISATION OF THE INVESTIGATION ............................................................................................................... 22 6.2 Criminal Matters ............................................................................................................................................. 23 6.3 Disciplinary Matters........................................................................................................................................ 24 6.4 Checklists....................................................................................................................................................... 24 6.5 Attachments ................................................................................................................................................... 25

PROFESSIONAL CONDUCT COMMITTEE .................................................................................................................... 26

POLICY............................................................................................................................................................................. 27

SETTLEMENT AGREEMENTS............................................................................................................................................ 27 USE OF SOCIETY VEHICLES BY STAFF INVESTIGATORS .................................................................................................... 27

SCHEDULES .................................................................................................................................................................... 29

SCHEDULE 1 .................................................................................................................................................................. 30 SCHEDULE 1 (CONT) ...................................................................................................................................................... 31 SCHEDULE 2 .................................................................................................................................................................. 32 SCHEDULE 3 .................................................................................................................................................................. 34

SCHEDULE 4 .................................................................................................................................................................. 36 SCHEDULE 5 .................................................................................................................................................................. 38 SCHEDULE 5 (CONT) ...................................................................................................................................................... 39 SCHEDULE 6 .................................................................................................................................................................. 40 SCHEDULE 7 .................................................................................................................................................................. 41 SCHEDULE 8 .................................................................................................................................................................. 42 SCHEDULE 9 .................................................................................................................................................................. 43 SCHEDULE 10 ................................................................................................................................................................ 44

Complaint Investigations – Operating Procedures Manual Page 1

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DEFINITIONS The Legal Profession Act 2007 prescribes the statutory scheme for the discipline of legal practitioners in Queensland. The core concepts are those of unsatisfactory professional conduct and professional misconduct. The relevant provisions of the Act are sections 418, 419 and 424. 418 Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

419 Meaning of professional misconduct (1) Professional misconduct includes--

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct

involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether happening in connection with the

practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal

practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission or for the grant or renewal of a local practising certificate.

420 Conduct capable of constituting unsatisfactory professional conduct or professional

misconduct

Without limiting sections 418 or 419, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct—

(a) conduct consisting of a contravention of a relevant law; (b) charging of excessive legal costs in connection with the practice of law; (c) conduct for which a court has convicted an Australian lawyer of--

(i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty;



(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration;

(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being

involved in the management of any corporation under the Corporations Act. It is fair to say professional misconduct can now be safely defined as either unsatisfactory professional conduct which is such a substantial breach of the standards of professional conduct that it would constitute a higher offence; or the conduct of a legal practitioner which, regardless of whether it takes place in connection with the practice of law or otherwise, justifies a finding that a person is not a fit and proper person to be engaged in legal practice. The core concept of the disciplinary scheme is that of unsatisfactory professional conduct. At present, there exists no judicial determination as to the bounds of that concept. However the following observations may be made:- (a) As a general rule in order for conduct to be unsatisfactory professional conduct, the conduct must

happen in connection with the practice of law. (b) The standard by which a solicitor’s conduct is measured is the competence and diligence a member of

the public is entitled to expect of a reasonably competent practitioner. The test is no longer the degree of competence and diligence expected of a practitioner by his fellow professionals.

(c) It is reasonable to assume that the expectations of a member of the public are higher than one’s fellow

professionals. (d) It seems likely that the measure of a reasonably competent Australian legal practitioner would have to

be a measure taken against fellow professionals. (e) A member of the public is not entitled to expect perfection of a practitioner. There will be some mistakes,

errors which do not fall within unsatisfactory professional conduct. (f) The phrase “competence and diligence” is only an inclusive definition and it is reasonable to assume

that the definition of unsatisfactory professional conduct given in s418 would be every bit as effective if those words were deleted so that the relevant test is “fall short of the standard that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner”.

Prior to commencement of the Legal Profession Act 2004 it was accepted that negligent acts or omissions by solicitors did not fall within the disciplinary jurisdiction unless such acts or omissions were of a serious nature. This was reflected in a former benchmark of s 3B of the Queensland Law Society Act 1952. The definition of s 418 does not allow such indulgence. The plain meaning of the words used in this definition embraces negligent acts or omissions by solicitors. The Legal Services Commissioner has adopted a policy that he will not exercise his disciplinary jurisdiction in relation to allegations of negligence which go beyond what might be termed “garden variety negligence actions” such as miscalculations of settlement amounts, rate adjustments and the like. Further, if an allegation of negligence is one that would normally be the subject of civil proceedings, then the Commissioner’s policy is to require those proceedings to be conducted and then at their conclusion, if the complainant sees fit to make a new complaint, re-examine the position.



The Application of the Disciplinary Jurisdiction to Lawyers, Former Lawyers and Former practitioners The Act is intended to allow practitioners admitted in one Australian state to practise in all Australian states. It creates the concepts of Australian lawyers, local lawyers and Australian legal practitioners. Section 5 of the Act provides:- 5 Meaning of terms involving lawyer (1) An Australian lawyer is a person admitted under this Act as a legal practitioner or admitted to the

legal profession of another jurisdiction under a corresponding law. (2) A local lawyer is a person admitted under this Act as a legal practitioner, whether or not the

person is also admitted to the legal profession of another jurisdiction under a corresponding law. (3) An interstate lawyer is a person who is admitted to the legal profession of another jurisdiction

under a corresponding law, but is not admitted under this Act as a legal practitioner. The term “lawyer” is focused upon admission before one of the Supreme Courts of the states or territories or the High Court to the roll of practitioners of that court. Section 6 of the Act expounds upon the definition of a “legal practitioner”:- 6 Meaning of terms involving legal practitioner

(1) An Australian legal practitioner is an Australian lawyer who holds a current local practising

certificate or a current interstate practising certificate. (2) A local legal practitioner is an Australian lawyer who holds a current local practising certificate. (3) An interstate legal practitioner is an Australian lawyer who holds a current interstate practising

certificate, but does not hold a current local practising certificate. The term “legal practitioner” focuses upon the holding of a practising certificate. Thus an Australian legal practitioner is any lawyer who holds a practising certificate in any Australian jurisdiction; a local legal practitioner is a lawyer who holds a practising certificate issued by the Queensland Law Society or Bar Association of Queensland; and an interstate legal practitioner is a lawyer who holds a practising certificate issued by an authority in another state but does not hold a practising certificate issued by a Queensland authority. It is trite to say that one cannot be a legal practitioner unless one is admitted to practice before one of the Supreme Courts in the various Australian states and territories. Note should also be taken of s 12 of the Act which provides a specific class of legal practitioner, the government legal officer. Although reference should be made to s 12 for full clarification of this concept, as a rule of thumb a government legal officer is any person in the employ of any branch of government engaged in legal practice as a result of that employment. Ss 417 & 433 of the Act provide that the disciplinary jurisdiction applies to Australian lawyers in relation to their conduct while they were Australian lawyers and whether they are or were at the time Australian legal practitioners or not. The disciplinary provisions apply even if those people are no longer Australian lawyers or legal practitioners i.e. no longer hold a practising certificate. Thus if the alleged conduct took place while a person was on the roll of a Supreme Court of a State or Territory or of the High Court, then the disciplinary



jurisdiction captures them whether or not they held or continue to hold a practising certificate issued by an authority. All this applies to conduct within the jurisdiction. S 423 is the extra jurisdictional provision. The Act extends the jurisdictional boundary of the Legal Services Commissioner in circumstances where unsatisfactory professional conduct takes place both within and without the jurisdiction in relation to the one transaction. Though s 418 refers only to Australian legal practitioners, s 417 (1) of the Act provides that the disciplinary jurisdiction applies to Australian lawyers to the same extent as it applies to Australian legal practitioners. 424 Conduct to which this chapter applies - insolvency, serious offences and tax offences (1) This chapter applies to the following conduct of a local legal practitioner whether happening in

Australia or elsewhere or whether engaged in before or after the commencement of this section-- (a) conduct of the practitioner in relation to which there is a conviction for - (i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty; (b) conduct of the practitioner as or in becoming an insolvent under administration; (c) conduct of the practitioner in becoming disqualified from managing or being involved in

the management of any corporation under the Corporations Act. (2) This section has effect despite anything in section 423. Note this applies only to local legal practitioners. Law Practice Employees Despite all of the foregoing the disciplinary jurisdiction also applies to law practice employees. That term is self-evident in its meaning and requires no elaboration. Clearly the definitions of professional misconduct and unsatisfactory professional conduct as cited above cannot apply to a law practice employee for they are neither a lawyer, nor a legal practitioner. The relevant standard for law practice employees is that of “misconduct in relation to the relevant practice” (s 458(1) of the Act). Since a law practice employee cannot by definition be a legal practitioner (in Schedule 2, a “law practice employee” is defined to mean an employee of a law practice other than an Australian legal practitioner) then the definition of misconduct must be that traditionally set out at common law i.e. “whether the respondent was in such breach of the written or unwritten rules of the profession as would reasonably incur the strong reprobation of professional brethren of good repute and competence.” Priestly J A in Quidwai v Brown (1984) 1NSWLR 100 at 105. This test makes no reference to the expectation of members of the public. The standard would be the standard expected of them by their fellow law practice employees.



Unlawful Operators Section 427 of the Act extends the Commissioner’s jurisdiction in investigate and prosecute complaints made against unlawful operators (defined as a person who engages in legal practice in this jurisdiction even though the person must not do so under s 24, or a person who represents or advertises that the person is entitled to engage in legal practice even though the person must not do so under s 25). Ss 24 & 25 of the Act create quasi-criminal offences relating to those persons who are not Australian legal practitioners (or former Australian lawyers or current or former law practice employees) but who are engaging in legal practice or representing etc. that they are so entitled. However the Act does not define the meaning of the phrase “engage in legal practice”. S 24 provides that a person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Accordingly, reference must be made to the common law to obtain an understanding of this phrase. There are three criteria that are generally applied (formulated by Phillips J in Cornall v. Nagel 1995 2VR 188 at 196):

• the doing of something which , though not required to be done exclusively by a solicitor, is usually done by a solicitor and doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor;

• the doing of something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner; or

• the doing of something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law e.g. the giving of legal advice.

In Queensland, the decision of Queensland Law Society v. Sande 1997 QSC 57 is the most significant Supreme Court authority for the proposition that undertaking conveyancing work is engaging in legal practice.



FUNDAMENTAL PRINCIPLES OF INVESTIGATION With one exception, the disciplinary jurisdiction is complaint based. The Legal Services Commissioner is the body charged with the jurisdiction of discipline of all legal practitioners and their employees. All complaints, to fall within the jurisdiction must be made to him. The only exception to this complaint based jurisdiction is the power at s 435(1)(c) of the Act allowing the Commissioner to commence an investigation against an Australian legal practitioner, law practice employee or unlawful operator on the basis that he believes an investigation about a matter relating to their conduct should be started. The Society’s role in the disciplinary jurisdiction is to investigate complaints referred to it by the Legal Services Commissioner. Though there is nothing in the provisions of the Act which prevents the Commissioner from referring to the Society the investigation of a barrister’s conduct, his policy is to refer only investigations relating to the conduct of practitioners conducting legal practice in the guise of a solicitor, law practice employees and unlawful operators. The Commissioner’s power to refer such investigations to the Society is contained in s 435(2) of the Act. The Commissioner is entitled to state a date by which the investigation must be completed with a written report to him and to also give directions about the matters to be investigated. In brief, an investigator of the Society must be duly appointed on behalf of the Legal Services Commission (see s 550 of the Act); there must be a report delivered to the Legal Services Commissioner at the conclusion of every investigation; and that report must include a recommendation to the Commissioner concerning whether a proceeding before a disciplinary body should or should not be commenced in relation to the complaint or investigation matter. The investigation must:-

• deal appropriately with any allegation of unprofessional conduct or professional misconduct;

• aim to maintain and improve the integrity, ethics and standard of conduct within the profession;

• aim to improve public confidence both in the Society, and the profession.

PART A INVESTIGATION It is a fundamental requirement of the Society that all investigations be carried out efficiently and effectively and within the performance indicators set by the Legal Services Commissioner. Resources will be allocated appropriately so that investigations can be conducted competently and impartially, and investigative methods will be transparent and well-documented so that investigations can withstand internal and external scrutiny. All investigations will be characterised by:- A1 – High Quality and Transparency A2 – Ability to Withstand Internal and External Scrutiny, Particularly with Respect to Legal Rigour A3 – Ethical Behaviour



A1 – High quality and transparency Investigative procedures need to be thorough and comprehensive to ensure all issues are addressed in an appropriate and transparent manner. A reviewer should be able to identify all aspects of the investigation quickly and easily, and be satisfied that the investigation was logical and appropriately conducted. In examining the processes of an investigation by the Society, the reviewer will need to consider the following:- 1. Planning and Case Management

An investigator has been appointed by the Manager, Complaint Investigations upon the Society’s receipt of the complaint from the Legal Services Commissioner. Appropriate resources (including human resources) have been allocated to the investigation.

2. Gathering and Assessing

All preparatory work was completed and relevant information obtained where possible before the start of the investigation, including the complaint history of the subject solicitor(s), and any related complaints or allegation type. All reasonable avenues of enquiry were explored including relevant witnesses identified and interviewed and relevant documentation obtained and examined. No unnecessary avenues of inquiry were explored. The physical file accurately records all decision points during the investigation and the basis for such decisions. Reviews of the case were conducted during the investigation by the Manager, Complaint Investigations.

3. Computer Case Management System (CMS)

Details in the CMS have been fully and accurately recorded at all times throughout the investigation.

4. Records management

There was compliance with the Society’s records-management procedures. All relevant documents, including correspondence, memoranda, transcripts and statements, were stored in the CMS or on the relevant file. All file movements were recorded in the CMS. Case Management Plans have been accurately maintained and a copy placed on the file at the completion of the investigation. Property Receiving records for every document/thing collected.



Tape-recordings of interviews were recorded and stored in accordance with relevant policy and procedure guidelines. Continuity of possession of documents and other physical evidence was maintained.

5. Timelines

All tasks were completed within expected completion dates or acceptable reasons were provided (and documented) for not doing so. Investigations have been completed and the investigation report has been signed off by the Manager, Complaint Investigations within the required time frame.

6. Investigation report/brief of evidence

The investigation report contains, and accurately summarises, all relevant information, including exculpatory evidence. All relevant criminal and/or disciplinary offences have been identified and appropriate recommendation(s) have been made.

A2 – Ability to Withstand Internal and External Scrutiny All investigations should demonstrate adherence to relevant legal strictures and should incorporate documentation of all key investigative decisions – irrespective of the outcome of the investigation. At all times, investigators must work within the legislation, as well as complying with any policies, procedures, powers and directives. Investigations must be able to withstand rigorous testing by the Professional Conduct Committee, Council, Legal Services Commission and the Legal Practice Tribunal or Legal Practice Committee. 1. Appropriate use of investigative techniques/powers All letters and notices issued under the Legal Profession Act 2007 comply with the legislation, policy and

procedures. Documents or things collected were appropriately stored and continuity of possession maintained. Interviews were electronically recorded, unless there was an acceptable reason for not doing so. All other contact with complainants, witnesses and subject practitioners were electronically recorded or

otherwise fully and accurately recorded. 2. Legal advice Legal advice in relation to issues arising during the course of the investigation has been documented.



A3 – Ethical Behaviour Mechanisms should be in place to ensure each investigation provides fairness and sensitivity to all concerned. The avoidance of patronage, bias and favouritism and the exercise of powers appropriately, fairly and equitably is critical to the credibility of any investigation. All investigators are expected to work with skill, care, diligence and honesty. All investigations must treat people under investigation with dignity and respect and afford natural justice to all parties. In order to achieve this objective, investigators are to ensure that:- 1. Any conflicts of interest were recorded and appropriately managed. 2. The confidentiality of the investigation was maintained. 3. Interviews were conducted appropriately – i.e. fairly, impartially, no leading questions posed and all

issues identified. 4. Allegations were put to the person being investigated and reasonable time allowed to enable the person

to respond. 5. Investigative steps were carried out fairly, impartially and rigorously. 6. There was an appropriate use and care of assets. 7. An accurate record and acquittal of all operational expenditure, including travel expenses, professional

fees and expenses (such as computer experts) were made.



THE INVESTIGATIVE PROCESS

OVERVIEW OF PROCESS

The general framework for the investigation of complaints is diagrammatically represented as follows:-

Initial analysis & assessment by QLS investigator

� Analyse complaint and identify key issues

� Develop Case Management Plan

� Establish timeframes

� Phone call to complainant to verify and clarify the complaint

Investigation by QLS investigator

� Maintain Case Management Plan

� Identify, interview and obtain statements from all relevant witnesses

� All relevant documents and evidence collected

� Monitor timeframes

� Develop Investigation Reports/Brief of Evidence

� Keep complainant informed

Manager, Complaint Investigations

� Monitor progress of investigations

� Provide advice re investigative strategies and sufficiency of investigation

� Recommend matters to go to Professional Conduct Committee or to be returned directly to

the Legal Services Commissioner with a recommendation that the complaint be dismissed

Determination

� Decision by Manager, Professional Standards to progress the matters to Professional

Conduct Committee and Council

Receipt of complaint by QLS

� Investigation of complaint referred to QLS by Legal Services Commission

� Complaint materials perused by Manager, Complaint Investigations

� Assigned to investigator

Action

� Recommendation by Professional Conduct Committee to Legal Services Commissioner

Return

� Return of complaint file and completed report to Legal Services Commissioner



Maintaining integrity and standing within the community is intrinsically linked to meeting the community’s needs. One important way of doing this in the context of complaints and discipline is to assist practitioners by clarifying and maintaining standards of conduct that are inclusive and responsive to consumer needs. Whilst unsatisfactory professional conduct and professional misconduct are the guides by which disciplinary action is taken, the proper and transparent investigation of complaints is crucial to maintain community respect for members of the Queensland Law Society. The objectives of investigating professional conduct include maintaining the standards and integrity of the legal profession as well as responding to individual instances of inappropriate and unfair behaviour. The purpose of this section is to identify some common pitfalls often faced by investigators in disciplinary investigations. It is hoped that the discussion will help investigators identify common errors in the investigation of disciplinary matters which may contribute to a “failed” prosecution. The outcome of a failed prosecution has a damaging effect to the complainant, the profession, the public and the individual responsible for the investigation, the Queensland Law Society and the Legal Services Commissioner. There are a number of reasons why a complainant may be dissatisfied with the investigation process:-

• failure to fully and impartially investigate the complaint;

• breach of procedural fairness;

• biased attitude displayed by the investigator;

• poor investigation documentation;

• failure in evidence assessment;

• lack of transparency;

• unrealistic recommendations; and

• the disciplinary penalty is not commensurate with the offence. Most of the above problems arise from a lack of communication by the person conducting the investigation. This highlights the need for investigators to explain to all complainants:- (a) the disciplinary jurisdiction; (b) what the Society can do; (c) what the Society can not do; (d) the investigative process that is followed; (e) the likely time to complete the investigation; and (f) the need to keep the complainant advised of progress concerning their complaint.

THE SIX STEPS OF AN INVESTIGATION

INTRODUCTION

The Manager, Professional Standards and the Manager, Complaint Investigations have been delegated the powers of the Queensland Law Society, pursuant to s443 of the Act, to require written explanations and the production of documents from Australian legal practitioners for the purposes of carrying out an investigation.



STEP 1 – RECEIPT AND ASSESSMENT OF COMPLAINTS

The Society investigates only complaints referred to it by the Legal Services Commissioner pursuant to s 435(2). If a complaint concerning the conduct of a practitioner is received by the Society, the Society must first forward that complaint on to the Legal Services Commissioner. It is then for the Commissioner to determine which complaints will be delegated to the Society for investigation. The effect of s 429 of the Act is that a complaint must be in writing. A member of the public who rings to complain must be told that in order to make their complaint official and subject to the jurisdiction of the Commissioner they must reduce their complaint to writing and forward it to the Legal Services Commissioner. Complaints referred by the Legal Services Commissioner to the Society for investigation will at first instance be assessed by the Manager, Complaint Investigations. Once that assessment has taken place the investigation file will then be assigned to an investigator. The assignment of the file will be noted by the Senior Administrative Assistant to the Manager on the CMS. The file will then be delivered to the allocated investigator. Upon receipt of a complaint file, the investigator must undertake the following steps:- 1. Review the written complaint with a view to identifying the conduct issues to be resolved. 2. Telephone the complainant and confirm the issues identified. If the issues of the complaint are complex

or further particulars/documents required consideration should be given to arrange a time to interview the complainant.

3. Provide written confirmation to the complainant as to the issues of the complaint, that the investigator is

the person responsible for the investigation and therefore the point of contact. 4. In cases where the complaint is made either by another solicitor in his own right or on behalf of a

complainant, it may not be necessary to telephone in order to confirm the issues – a formal letter of acknowledgement to the complainant’s solicitor should particularise the issues of the complaint.

STEP 2 – PLANNING

2.1 The Investigation Plan

Once the investigator has complied with the matters to be attended to upon receipt of the investigation file, he or she should develop an investigation plan for the more complicated matters which will outline, inter alia, the proposed strategy to investigate the complaint. This plan should be developed by the investigator and a copy filed on the investigation file. Templates for such plans are included in this manual (see Schedule 1). In cases of complex or sensitive investigations which may involve lengthy investigations and the extensive use of the Society’s resources, both financial and manpower, the investigation plan should be approved by the Manager, Complaint Investigations.



The investigation plan is important in that it provides a milestone in the investigative process in addressing transparency, objectivity and procedural fairness. In preparing an investigation plan the investigator should consider the following:-

• the nature of the allegation;

• the appropriate policies and procedures;

• whether other bodies may/will be required to be notified (i.e. Queensland Police Service);

• what type of evidence is required to substantiate/corroborate the allegation;

• how do you intend to obtain the evidence;

• expected resources;

• expected time-lines

• procedural fairness;

• possible outcome;

• review; and

• media issues. Once settled the investigation plan will form the terms of reference by which the investigation is to be conducted.

STEP 3 – CONDUCTING THE INVESTIGATION

3.1 The Investigation Process

The task of the investigator is to seek to prove or disprove any matters of complaint raised by the complainant. Generally speaking, each allegation must be substantiated or not substantiated. To do so the investigator must develop the “proofs” of each allegation. The “proofs” are the issues that prove or tend to prove a fact or facts in issue. In addition, an investigator is required to understand and apply any “defence” or “exculpation” in respect of each allegation. The means available to an investigator to accomplish this is known as evidence. The main categories of evidence available to an investigator are oral evidence, documentary evidence and expert evidence. Generally, only one witness may be required to prove any fact or set of facts. However, as a matter of professionalism and fairness to the person being investigated, it is appropriate to seek additional evidence in the form of corroboration from another party who may also be able to attest to the same facts. Likewise, as a matter of procedural fairness, the investigator is also required to seek evidence from persons who can prove or tend to prove that the person being investigated is not guilty of the alleged unprofessional conduct/professional misconduct. If allegations ultimately become the subject of disciplinary or criminal proceedings, the evidence collected during the course of the investigation will in all likelihood be used before the appropriate Court or Tribunal. The possibility of allegations by the person being investigated against the method of obtaining such evidence are not unheard of, however, many of these attacks can be avoided if a properly prepared investigation plan has been prepared at the outset. In relation to matters that may also amount to a criminal offence, care should be taken to ensure that evidence gained during the course of the investigation will not be ruled inadmissible in any subsequent proceeding.



3.2 Requiring an Explanation from the Person being Investigated

In the normal course of events, upon receipt and analysis of the complaint, the investigator may determine that it is appropriate to obtain either a statement or an affidavit from the complainant setting out all of the relevant circumstances surrounding the complaint and attaching all relevant documents. Templates for an “Affidavit” and “Affidavit Annexure” are available in the CMS and are to be utilised. Alternatively, the investigator may determine that sufficient details have been provided by the complainant to enable the person being investigated to fully and meaningfully respond to the complaint. At this stage, the person being investigated is to be required to provide, pursuant to s443(1)(a)(i) of the Act, a satisfactory written response to the complaint within a stated reasonable time. In this first instance, person being investigated is to be given 14 - 28 days (depending on the complexity of the matter) within which to respond to this request. Only the Manager, Complaint Investigations and Manager (and other Managers) can sign such letters as the Council’s delegate.

3.3 Requiring the Person being Investigated to Produce a Document

In addition to seeking a written explanation, it may be necessary for the purpose of the investigation that the person being investigated be required to produce a document or file in his/her custody, possession or control and which they are entitled at law to produce. In general, the relevant client file should be required to be produced by the solicitor. There will be few occasions where it would not be required. The most obvious is when a complaint is made about a piece of correspondence as being impolite or offensive, something that stands on its own. When it is a third party complaint, i.e. by a person not the solicitor’s client, the file should in general still be required but the solicitor’s attention must be explicitly drawn to s491 of the Legal Profession Act 2007. In such circumstances, the person being investigated is to be required, pursuant to s443(1)(a)(iii) of the Act to produce within a stated reasonable time, the document or file. In the first instance, person being investigated is to be given fourteen days within which to produce the document. Depending upon the circumstances of the particular case, a longer period may be allowed. Again, only the Manager, Complaint Investigations and Manager can sign such letters as the Council’s delegate.

3.4 Procedure for Investigator’s Response to Receipt of Notice Explanations by Person being Investigated

Upon receipt of a written explanation from a person being investigated, the investigator is to

acknowledge receipt by return letter. This letter should indicate that the matters raised (by way of explanation) will be considered in light of the complaint and all other available information and that the investigator will correspond again in the near future to advise whether any further information or documents are required.

At the same time, a letter is to be sent to the complainant informing him/her of the progress of the

investigation. 3.5 Failure of a Practitioner to Comply with a s443(1) Requirement

If a practitioner does not comply with a requirement made pursuant to s 443(1)(a)(i) or (iii) of the Act within the stated timeframe, s443(3) provides that the Society may give the practitioner a written notice (s 443(3) Notice) that if the failure continues for a further 14 days after the notice is given, the practitioner may be dealt with for professional misconduct.



Where a practitioner has failed to comply with such a requirement, a s 443(3) Notice is to be prepared by the investigator for consideration by the Manager, Complaint Investigations. All appropriate enclosures are to be included with the s 443(3) Notice. In particular, without limiting what enclosures are to be included, the original and any subsequent written requests for an explanation or production of a document are to be included. In this regard, attention is drawn to s 443(5) which provides:- “(5) In a hearing before the tribunal about a charge of professional misconduct, a copy of the notice

mentioned in subsection (3) and any enclosures with the notice is evidence of the matters in the notice and the enclosures.”

3.6 Failure to Respond to a s443(3) Notice

In the event a practitioner fails to respond to a s 443(3) Notice, then consideration is to be given to placing the matter before the Professional Conduct Committee or Council recommending a charge of professional misconduct against the practitioner. This will involve a consideration of the facts in each case and will include consideration of whether there is a reasonable excuse for the practitioner’s failure to respond within the 14 day period. In this regard, attention is drawn to s 443(4) and (6) which provide:- “(4) If notice under subsection (3) is given and the failure continues for the 14 day period:-

(a) the practitioner is taken to have committed professional misconduct, unless the practitioner has a reasonable excuse for not complying with the requirement within the period (emphasis added); and

(b) the council may bring a charge of professional misconduct against the practitioner.”

(6) An Australian legal practitioner may refuse to give the entity an explanation of a matter being

investigated if: (a) the practitioner satisfies the entity that to give the explanation would contravene, or

invalidate, a policy for professional indemnity insurance held by the practitioner; or (b) the explanation would tend to incriminate the practitioner.”

3.7 Rules of Evidence

The rules of evidence generally do not apply to the majority of administrative or disciplinary investigations. However, as a matter of professionalism, an understanding of the rules of evidence is useful for an investigator to ensure the evidence obtained is the best available, and will be admissible should there be the likelihood of subsequent disciplinary/criminal proceedings. Issues such as hearsay evidence should be familiar to investigators.



3.8 Maintaining Confidentiality

Investigators must ensure the investigation is conducted in a confidential manner and are reminded of the provisions of Section 705 of the Legal Profession Act 2007. Confidentiality is an important issue for protection of complainants and assists the investigative process by encouraging witnesses to be forthcoming in their evidence. Furthermore, it affords protection to the investigator for claims of defamation and reduces the likelihood or opportunity of evidence becoming contaminated. Investigators must advise all witnesses of their obligation to keep details of the investigation confidential.

3.9 Procedural Fairness

Procedural fairness must be applied and ‘be seen to have been applied’ in all investigations. It is therefore important to document every action, decision and reason for decisions being made during the course of the investigation. This aids in applying a transparent and fair process. The obligation to provide procedural fairness should not be viewed as an impediment to conducting a proper investigation. Providing procedural fairness benefits the investigator as well as the person under investigation. The procedural aspect of an investigation enables an investigator to properly check his or her facts and identify major issues. The comments made by the subject practitioner of the complaint potentially expose any weakness in the investigation and provide advance warning of the basis on which any possible defence to a disciplinary charge may be run. If during the course of an investigation a decision is made which withholds procedural fairness, it is likely that the decision will be challenged and set aside. However, by recording the reasons for your decisions, the decision may be upheld. To be ‘”procedurally fair” in an investigation the investigator should:-

• Advise the practitioner against whose interests a decision may be made of the substance of the allegations against them or grounds for adverse comment in respect to them;

• Provide practitioners with a reasonable opportunity to put their case, whether in writing or by interview;

• Take evidence from all relevant persons and conduct all relevant inquiries before making a decision as to whether to commence disciplinary action;

• Ensure no person decides a case in which they have a direct interest;

• Act fairly and without bias; and

• Conduct an investigation without undue delay. 3.10 Providing a copy of the written complaint to the subject practitioner

During the course of an investigation an investigator may be asked by the subject practitioner to provide a copy of the original written complaint. Often the practitioner will suggest that a failure to provide a copy of the written complaint is a breach of procedural fairness/natural justice. Natural justice is the granting of a hearing to a party potentially affected and the granting of a hearing by a disinterested decision maker. Natural justice is often misunderstood by persons because they believe it to relate the making of an unfair or wrong decision i.e. the outcome of the decision making process. Natural justice is not concerned with the outcome but the process at coming to the decision.



Procedural fairness is to ensure that a fair decision making process/procedure is followed. In Murray -v- Legal Services Commissioner (1999) 46 NSWLR 224, the New South Wales Court of Appeal held that procedural fairness required that before a decision was made under Section 155 of the Legal Professions Act 19871, the practitioner who was the subject of the complaint must be given a copy of the complaint and an opportunity to respond to it. In the case of a demand by a practitioner, during the course of the Society’s investigation, for a copy of the written complaint each request should be considered on a case by case basis. There are a number of reasons why it would be counter productive to the Society to accede to such a request. Many articulate legal consumers do not have the resources or skills which allow them to properly formulate their complaints. The Society is of the view that there are a number of circumstances when it may be impractical or unworkable to provide, during the investigation stage of the complaint process, the actual complaint as opposed to the substance of the complaint, such as:-

• The complaint containing insulting or offensive comments;

• unnecessary or irrelevant material may be submitted;

• the complainant may not be able to adequately articulate the conduct with the result that the written complaint is not a full and accurate reflection of the complaint;

• requiring the original complaint to be given to the subject practitioner may inhibit the integrity of the investigation should there be grounds to suspect that the practitioner may interfere with evidence or other sources of inquiry. These may be particularly so in the case of serious fraud matters;

• some allegations may be capable of being summarily dismissed;

• matters that are not within the Society’s jurisdiction to investigate. To comply with the requirement of procedural fairness, a practitioner must be provided with the substance of the complaint and given the opportunity to provide a response before the matter is referred to the Professional Conduct Committee for its consideration.2 As to whether the practitioner is to be provided with a copy of the written complaint during the course of the Society’s investigation, such a decision is for the individual investigator bearing in mind the above matters. Section 437 of the Act provides that notice of the making of the complaint and the nature of the complaint must be given to the subject solicitor. It provides that the following information must be given to the solicitor as soon as is practicable: (a) that the complaint has been made; (b) the nature of the complaint; (c) the identity of the complainant and (d) the action taken by the Society and Commissioner in relation to the complaint or investigation

matter before giving the notice.

1 Section 155 of the Legal Professions Act 1987 relates to, inter alia, the decision making process to be adopted by the Council or the Commissioner after the investigation has been completed.

2 See “B” a Solicitor & “G” a Solicitor v. Victorian Lawyers RPA Limited and Legal Profession Tribunal (uprep. Court of Appeal, S.C. of Victoria, No. 8739 & 8736 of

2001, 13 December 2002) at pp. 25-26.



The notice must also advise the lawyer of his right to make submissions. This does not mean that an actual copy of the complaint need be given. The giving of such a notice might be delayed if the entity considers that notice of the complaint or investigation will, at that time, prejudice the investigation of the complaint, or if further particulars have been requested pursuant to s431(1) from the complainant.

3.11 Information Management

The “investigation file” must be retained and is an accountable document. Records contained in the file must display a complete record of the investigation, documenting every step, including all major discussions, relevant phone calls, interviews, decisions and conclusions made during the course of the investigation. The investigation file is to be securely stored to prevent unauthorised access, damage or alteration, and so as to maintain confidentiality.

3.12 Common criticisms of the investigation process

Common criticisms, which arise if the matters referred to above are not adopted, include:-

• reliance on assumption not evidence;

• failure to provide procedural fairness;

• failure to obtain the best evidence which is available;

• failure to consider evidence which is exculpatory;

• shortcuts;

• poor investigation documentation; and

• lack of objectivity of the investigator.

STEP 4 - INTERVIEWING

4.1 Interviews

Preparation and planning is an essential element of interviewing. It is necessary to have a clear idea of what is expected from each interviewee and what the interview is hoped to achieve. This will enable the interviewer to set the agenda for the interview. In most cases, the complainant is the first person to be interviewed following the receipt of the written complaint. Investigators should ensure that they fully de-brief the complainant so as to obtain full particulars of the complaint, identify any other relevant witnesses and documents and details of any other issues the investigator may have to conduct further inquiries on. A common error in the investigative process is failing to interview all relevant and available witnesses. Whilst there may be a good reason for not doing so, the decision not to interview a relevant person must be recorded. If all the available witnesses are not interviewed, the process could be challenged in failing to meet a fundamental obligation to ascertain all the relevant facts pertaining to the complaint and conducting a subjective investigation. Interviews must be conducted fairly, reasonably and in an impartial manner. It serves no purpose to remark on a witness or subject’s behaviour during the course of an investigation and can leave the process open to further challenge.



The most important rule when obtaining oral evidence is that it must be accurate. The three principle ways in which oral evidence can be recorded are by:-

• tape recording;

• typed record of interview; or

• a written witness affidavit. Interviews with a subject practitioner should be tape recorded with his or her prior consent. A copy of the interview should be provided to the solicitor at a mutually convenient time. The original copy of such interviews must be stored in a safe place. Where necessary a full transcript of any relevant interview should be transcribed and an affidavit prepared from that transcript.3 Witnesses should be permited the presence of a support person during the interview if requested. This not only makes the interviewee feel more comfortable but also makes the interview easier to conduct. However, the role of the support person must be clearly explained so as to ensure that person understands they cannot partake in the interview; is not involved in the matter being investigated; and has not agreed to accompany or assist other witnesses in the investigation. A clear direction should be given to the person with respect to maintaining confidentiality of the information that they are likely to hear.

4.2 Managing Witnesses Including the Complainant and the Subject Practitioner

An important element of any complaint investigation is managing the complainant. This entails:-

• ensuring the complainant has realistic expectations of what the investigation can achieve;

• assuring the complainant that the matter is being treated confidentially;

• providing the complainant with feedback by advising at regular intervals the progress of the investigation; and

• informing the complainant in a timely fashion of the conclusion of the investigation or other action. It is important that an investigator address the needs and concerns of witnesses. They should be provided with information to allow them to understand the nature of the investigation and the disciplinary process should they be required to give evidence.

STEP 5 - REPORTING

5.1 The Investigation Report

During the progress of, or at the conclusion of, the investigation, the investigator must prepare an investigation report. Although the report need not be in any set form, it should be constructed in such a manner that it will be understood by any person who does not have an involvement in the matter i.e. the report should include:-

• the essence of the complaint including particulars of the complainant and the subject solicitor.

• a synopsis of the relevant evidence.

• an analysis of that evidence including copies of documents or correspondence obtained during the investigation.

3 A template for an affidavit is provided for in the Operating Procedures Manual



• a conclusion and recommendation addressing each aspect of the complaint and determining whether the evidence is sufficient to give rise to a reasonable likelihood of a finding by a disciplinary body of unsatisfactory professional conduct or professional misconduct.

The major requirement of the report is that it is a self-contained report about the investigation and its conclusion. A template in the CMS has been prepared as to the form and content of such an investigation report. A completed investigation report is to be presented to the Manager, Complaint Investigations for review who may either:-

• return the file to the investigator for further investigation; or

• concur with the conclusions and recommendations of the investigator. If the conclusions and recommendations of the investigator are that the complaint ought to be dismissed as there is no reasonable likelihood of a finding of unsatisfactory professional conduct, or professional misconduct, and these conclusions are accepted by the Manager, Complaint Investigations, the manager will forward the complaint investigation file to the Legal Services Commissioner with a formal recommendation by the Society to that effect and adding any such further explanation as he sees fit. The Manager, Complaint Investigations will also advise the parties to the complaint of the completion of the Society’s investigation and that a report has been forwarded to the Legal Services Commissioner. The Commissioner has directed the Society not discuss with any of the parties to the complaint its conclusions. The reason for this is that the determination of the complaint is solely within the province of the Commissioner. If the Manager, Complaint Investigations is of the view that the investigation has uncovered evidence such as to constitute a reasonable likelihood of a finding by a disciplinary body of at least unsatisfactory professional conduct then he shall draft disciplinary charges as are supported by the evidence and forward the investigator’s report together with those charges to the Manager, Professional Standards. The Manager, Professional Standards will then further review the investigation and if he is of the view that the investigation gives rise to a reasonable likelihood of disciplinary action he will cause the matter to be placed before the Professional Conduct Committee for its consideration. The determination of the Professional Conduct Committee as to the recommendation to be made by the Society is binding upon the Society staff. If the matter is before or is to go before the Professional Conduct Committee, the format of the report will be as set out in either Schedule 3 or Schedule 4, depending upon whether a resolution is sought from that Committee. See the section in this manual titled “Professional Conduct Committee”. If the Manager, Professional Standards forms the view that there is insufficient evidence to put the matter before the Professional Conduct Committee, then the Manager, Complaint Investigations will forward the completed investigation file to the Legal Services Commissioner with that recommendation. Once a matter has been considered by the Professional Conduct Committee, the Manager, Complaint Investigations shall forward the completed investigation file and the Committee’s recommendation to the Commissioner and shall also advise the parties to the complaint of the completed investigation.



5.2 Standards of Proof

In criminal investigations, it is recognised that the standard of proof is ‘beyond reasonable doubt’. However, in disciplinary and administrative matters, allegations must be proved on the ‘balance of probabilities’. This standard of proof requires that it must be more probable than not that the allegation has been made out. Section 649 of the Act embodies the decision of Briginshaw -v- Briginshaw (1938) 60 CLR 336 which is authority for the proposition that the strength of evidence (or the degree of satisfaction) necessary to establish an allegation on the balance of probabilities may vary according to the seriousness of the allegations. This needs to be borne in mind when considering the sufficiency of the evidence to substantiate any particular charge.

5.3 Briefs of Evidence

During the course of an investigation it may be necessary for an investigator to brief Counsel with regard to such issues as settling draft disciplinary charges, to provide advice as to whether sufficient evidence exists to prosecute a practitioner and to advise on matters of law etc. All such Briefs of Evidence are to utilise the cover set out in Schedule 5 and the “Index” in Schedule 6. In addition, the Brief of Evidence must contain:- (a) A letter of reference signed by the Manager, Professional Standards. Also included with that letter

will be a separate binder marked “Privileged Material” which would contain material such as a Synopsis of the evidence with relevant observations, chronology, any schedules prepared, suggested draft charges and relevant cases or other material to be relied upon.

(b) The formal brief of evidence containing the material for prosecution (affidavits and exhibits) and

constructed in accordance with the indexes set out in Schedules 7 and 8 should be contained in binders. The binder(s) should be clearly marked.

Original material should not be included in the brief of evidence.

Each document, witness affidavit and/or exhibit should be separated by a page divider. Those dividers should be numbered, in the case of affidavits A1, A2 etc and in the case of Exhibits E1, E2 etc. The pages of a brief of evidence should not be numbered as those responsible for the further investigation or prosecution may require the formal brief to be altered, or additions or deletions made.

Original Society files should not be provided to Counsel without the prior approval of the Manager, Complaint Investigations.

5.4 Access to Information

As the investigation file may be the subject of a request under the Right To Information Act 2009, only information relevant to the investigation should be maintained. Notwithstanding, upon acceptance of the investigation report by the Manager, Complaint Investigations, it is likely that it will (or portions of it) be accessible to the subject practitioner. Careful consideration must therefore be made in relation to what information is provided to the respondent solicitor or person.



The judgement in terms of what is to be provided to the respondent should be based on the following competing interests:- 1. the right of the respondent to know the case against him or her; 2. the wish of any third party (especially informants or whistleblowers) to have their identity remain

confidential; and

3. the general interest in ensuring the integrity of the investigation.

STEP 6 – FINALISATION OF THE INVESTIGATION

6.1 Circumstances in which complaints may be dismissed

No complaints referred to the Society by the Legal Services Commissioner are closed by the Society. The final determination as to what action is to be taken in respect of a complaint is solely a matter for the Commissioner. Therefore all files are returned to the Commissioner upon the completion of the investigation with a recommendation to either dismiss the complaint or to prosecute. Section 448 of the Act provides as follows:-

448 Dismissal of complaint

(1) The commissioner may dismiss the complaint or investigation matter if satisfied that-- (a) there is no reasonable likelihood of a finding by a disciplinary body of-- (i) for an Australian legal practitioner--either unsatisfactory professional

conduct or professional misconduct; or (ii) for a law practice employee--misconduct in relation to the relevant practice;

or (b) it is in the public interest to do so. (2) The Commissioner must give the respondent and any complainant written notice about the

Commissioner's decision to dismiss the complaint or investigation matter. Section 448 embraces the two heads under which recommendations to dismiss a complaint may be made i.e. there is no reasonable likelihood of the disciplinary body finding either unsatisfactory professional conduct or professional misconduct; or that even in the face of such a reasonable likelihood existing it is not in the public interest to undertake that course. It almost goes without saying therefore that any recommendations of prosecution must to be put to the Professional Conduct Committee to consider if the evidence gathered by an investigation is sufficient to the extent that it is reasonably likely for a disciplinary body to make findings of unsatisfactory professional conduct or professional misconduct.



When an investigation file is completed and referred back to the Legal Services Commissioner, all of the materials held by the Society (including any client file obtained from a solicitor) should be forwarded to the Commissioner. The only exception to this is any material obtained by way of Search Warrant which should be retained at the Society until a direction is received from the Legal Services Commissioner as to further action to be taken with that material. The Manager, Complaint Investigations shall, on returning the investigation file to the Commissioner, make a special note of the fact that materials are held which have been obtained by way of Warrant.

6.2 Criminal Matters

Section 706 of the Legal Profession Act 2004 states:

706 Duty of relevant entities to report suspected offences

(1) This section applies if a relevant entity suspects a person has committed an offence, other than –

(a) an offence against the Trust Accounts Act 1973 that the relevant entity considers is of a minor nature.

(2) The relevant entity must—

(a) report the suspected offence to an appropriate authority; and

(b) make available to the appropriate authority the documents and information…etc.

It is vital to keep in mind the provisions of s 706(1) – during the course of an investigation, information/evidence may be gathered which may raise a suspicion that the solicitor has been involved in conduct which could amount to the commission of a criminal offence; however, such a suspicion may also arise from confidential communication which is protected by privilege. The best course to take is if there is evidence of any such suspicion, then that evidence should be included in the investigation report. Needless to say, such criminal conduct would also amount to professional misconduct or malpractice.

It is further acknowledged that due to the limited investigative powers held by the Society, any investigation of suspected criminal conduct may not be completed by the time a submission is put before the Professional Conduct Committee for the matter to be referred to the Council to determine whether there are reasonable grounds to suspect the person has committed a criminal offence. In such a case, a report needs to be completed, recommending that the matter be referred to Council for its determination of whether there are reasonable grounds to suspect the person has committed a criminal offence and, if so, referral to the Commissioner of Police or other appropriate prosecuting authority. Such submission must identify the criminal offence(s) alleged to have been committed. In anticipation of the Professional Conduct Committee resolving to recommend to Council that the matter be referred to the Commissioner of Police or other appropriate prosecuting authority, a “QLS Council Submission” is also to be prepared at the same time. Such submission must identify the criminal offence(s) alleged to have been committed.



Where, pursuant to Section 706 of the Act, the Council has resolved that a report is to be made to the Commissioner of Police or other appropriate prosecuting authority, that report should be in the form of a Brief of Evidence and set out in the format referred to below:- (a) The cover of the Brief of Evidence is set out in Schedule 5. (b) A letter of reference signed by the Manager, Professional Standards. Also included with that letter

will be a separate binder marked “Privileged Material”, which would contain the Main Index (Schedule 6) material such as a Synopsis of the evidence with relevant observations, chronology, and schedules prepared, suggested draft charges and relevant cases or other material to be relied upon.

(c) The formal Brief of Evidence containing the material for prosecution (affidavits and exhibits) and

constructed in accordance with the indexes in Schedules 7 and 8 should be contained in binders. The binder(s) should be clearly marked. Original material should not be included in the Brief of Evidence.

6.3 Disciplinary Matters

Where it is recommended that disciplinary proceedings be instituted, the Legal Services Commissioner may, upon receipt of the investigation file from the Society, request that a brief be put together. It might also be the case that the investigator and Manager, Complaint Investigations deems it necessary to deliver a brief of evidence together with the investigation materials to the Legal Services Commissioner. Where a brief is required then the brief will contain:- (a) the first part “privileged material” as in the criminal matter; and (b) copies of all affidavits and exhibits i.e. the evidence. Please refer to Item 5.3 above and

Schedules 5 & 6. Please ensure the originals of all affidavits and exhibits are to be treated as such and thus as

exhibits are recorded and dealt with in accordance with the procedures set out for the recording and dealing with materials seized under search warrant.

6.4 Checklists

In order to assist investigators in preparing Briefs of Evidence, a checklist should be prepared. This checklist has a threefold purpose:- (a) As a guide to the investigator responsible for preparing the Brief to ensure before submitting the

Brief all matters that should be addressed have been addressed. (b) As a checklist for the Manager, Complaint Investigations and to identify any deficiencies in the

Brief requiring remedial action by the investigator; and

(c) As a record of the remedial action having been taken by the investigator before the Brief is dispatched to the Commissioner of Police or Counsel, as the case may be.



6.5 Attachments The following documents can be found in the relevant Schedule:- 1. Brief of Evidence covering sheets Schedule 5 2. Central Index to Brief of Evidence Schedule 6 3. Witness Index Schedule 7 4. Exhibit Index Schedule 8 5. Brief Checklist Schedule 9



PROFESSIONAL CONDUCT COMMITTEE The following process is to be adhered to concerning the submission of matters to the Professional Conduct Committee:- 1. Within one week of a Professional Conduct Committee meeting being held, the draft Minutes of that

meeting will be settled by the Manager, Professional Standards and then circulated to Committee members for their attention in accordance with the resolutions and directions of the Committee. Each “responsible officer” is responsible for actioning the relevant Agenda item.

2. Two weeks prior to the Professional Conduct Committee meeting, investigators are to provide a written

memorandum to the Manager, Complaint Investigations outlining the current status of matters already listed on the Agenda, or, new matters for inclusion on the Agenda.

• Where the memorandum is to inform Committee members of the current status of an ongoing investigation or to report back to the Committee on action required, the format of the memorandum is to accord with Schedule 3 – Status Report. A template is located in the CMS.

• Where the memorandum is seeking a particular resolution from the Committee, the memorandum is to be in the format in accordance with Schedule 4 – Report Seeking Resolution. A template is located in the CMS.

3. The draft Agenda will be created by the Senior Administrative Assistant and circulated for verification by

the relevant staff members. 4. After verification of the Agenda, the material will then be distributed to the Committee members one

week before the scheduled meeting. 5. Supplementary Agenda items should only be created for matters which require the urgent consideration

of the Professional Conduct Committee.

Unless otherwise advised, Society staff will not be required to attend at Committee meetings except for the Manager, Professional Standards and Manager, Complaint Investigations.



POLICY

SETTLEMENT AGREEMENTS

In instances where a complaint has been referred to the Society for investigation, and the complainant subsequently enters into a settlement agreement with the solicitor, a term of which is that the complainant will withdraw his/her complaint, the following policy applies:-

(a) Neither the Commissioner or the Society are parties to any such agreement and, therefore, not bound

by its terms; (b) The Commissioner and therefore the Society has a right to continue to investigate a matter

independently of any written complaint or any withdrawal of the complaint by the complainant (s 433(3)) of the Act.

(c) This statutory right cannot be compromised by either the complainant or the practitioner; (d) Whilst the complainant is entitled to withdraw his/her complaint, the question of whether an investigation

should proceed will be dependent upon a review of the available evidence and a determination of whether there is a reasonable likelihood of success if disciplinary proceedings were instituted;

(e) The above assessment would need to include a consideration of all relevant issues, including:-

• whether the complainant is willing to give evidence in support of the complaint;

• the seriousness of the issues under investigation;

• the sufficiency of the available evidence;

• the public interest in maintaining the professional standards and integrity of the profession;

• whether any further investigation is likely to be productive;

• the likely sanction that would be imposed if the complaint was proved.

USE OF SOCIETY VEHICLES BY STAFF INVESTIGATORS

1. The Manager, Complaint Investigations, is responsible for the efficient, effective and ethical management of Society vehicles allocated to his/her relevant area.

2. The Society will issue instructions and guidance on the use of its vehicles as required. 3. Staff of the Queensland Law Society must not use Society vehicles for private purposes unless

permission to do so is granted by their supervisor or the allocation of a Society vehicle includes private use as a condition of service of the user.

4. A staff member of the Queensland Law Society while on duty must not drive a Society vehicle if they:-

(a) do not possess a current driver’s licence, and (b) are taking prescribed or non-prescribed drugs that may impair their driving ability.



5. Staff of the Queensland Law Society using Society vehicles must comply with all traffic laws, ordinances, regulations, including by-laws relating to parking restrictions, of the State or Territory in which the vehicle is used.

6. Staff of the Queensland Law Society driving a Society vehicle involved in an accident must not admit

liability and must notify the Manager, Complaint Investigations as soon as practicable. 7. Garaging of Society vehicles at a staff members private residence must be approved by Manager –

Investigations except where the allocation of a Society vehicle includes private use as a condition of service of the user.

The Society provides workers compensation insurance cover for injury to drivers (who are Society officials) while vehicles are being used for official purposes. Circumstances where passengers who are not Society employees and are injured may be covered by comprehensive insurance cover provided by the lease. Staff of the Queensland Law Society using Society vehicles must ensure that unauthorised passengers are not carried in the vehicle and that the vehicle is not used for private and/or commercial purposes. Staff of the Queensland Law Society allocated a Society motor vehicle must undertake regular basic maintenance checks of the vehicle’s oil, water, transmission fluid levels and tyre pressure and keep the vehicle in a clean and tidy state. Staff of the Queensland Law Society using Society vehicles must complete all details in a vehicle mileage entry on the approved form for each trip undertaken immediately prior to and upon completion of that trip. Those sheets will be kept in the vehicle along with fuel receipts and submitted to the Manager – Investigations at the end of each calendar month. Smoking is not permitted in Society vehicles. Fringe Benefits Tax implications for Society vehicles A car fringe benefit arises when a car is owned or leased by the Society and is used by an official for private purposes. A car for FBT purposes includes:-

• motor cars, station wagons, panel vans, utilities, four wheel drives;

• any other goods carrying vehicle with a designated carrying capacity of less than one tonne; or

• any other passenger carrying vehicle with a designated carrying capacity of fewer than nine occupants. A car is taken to be made available for private use by an official on any day where:-

• it is used for private purposes by the official; or

• the car is not at the Society’s premises and the official is authorised to use it for private purposes. For the purpose of determining fringe benefit tax liability, a car that is garaged at an official’s home is generally treated as being available for the private use of the official regardless of whether or not the official has permission to use it privately. As a general rule, travel to and from work is considered to be the private use of a vehicle for FBT purposes unless the staff member is on call.



SCHEDULES



SCHEDULE 1

CASE MANAGEMENT PLAN – OBJECTIVES

NAME: FILE NO:

EVENT PROFESSIONAL MISCONDUCT/ OFFENCES

ELEMENTS TASKS NECESSARY TO OBTAIN

EVIDENCE TO PROVE THE ELEMENTS



SCHEDULE 1 (CONT)

CASE MANAGEMENT PLAN – TASKING SHEET

NAME: FILE NO:

MAN HOURS DATE TASKS NECESSARY TO OBTAIN

EVIDENCE TO PROVE THE ELEMENTS METHODS USED TO ACHIEVE TASKS PERSON

RESPONSIBLE Estimated Actual Planned Completed

LOCATION OF EVIDENCE

COMMENTS



SCHEDULE 2

INVESTIGATION REPORT

Ref:

FILE NO:

COMPLAINANT:

SUBJECT SOLICITOR(S):

DATE OF REPORT:

INVESTIGATOR:

THE COMPLAINT

The Essence of the Complaint [Summarise the essence of the complaint] The Complainant [Enter complainant details] The Solicitor the Subject of the Complaint [Enter subject solicitor’s professional details and previous complaint history]

THE INVESTIGATION

Extent of the Investigation [Enter details of the Society’s investigation] The Complainant’s version [Enter details of the complainant’s version]



The Solicitor’s version [Enter details of the subject person’s version] The Version of Witnesses [Enter Witness’s version] Anticipated Completion Date [Enter details of the anticipated completion date. If the investigation has been completed, delete this heading.]

ANALYSIS OF THE EVIDENCE

[Enter details of analysis of complaint and relevant evidence]

PROCEDURAL ISSUES

[Enter details, if appropriate]

CONCLUSIONS AND RECOMMENDATIONS

[Enter conclusions and recommendations] ……………………………………… [Enter investigator’s name] Investigator Professional Standards



SCHEDULE 3

PROFESSIONAL CONDUCT COMMITTEE

STATUS REPORT

Ref:

FILE NO:

COMPLAINANT:


DATE OF REPORT:

INVESTIGATOR:

THE COMPLAINANT


THE INVESTIGATION Extent of the Investigation [Enter details of the Society’s investigation] The Complainant’s version [Enter details of the complainant’s version]



The Solicitor’s version [Enter details of the solicitor’s version] The Version of Witnesses [Enter witness’s version]

ANALYSIS OF THE INVESTIGATION [Enter details of analysis of the investigation]

FURTHER ACTION TO BE TAKEN Further Action Planned [Enter details of further action planned] Anticipated Completion Date [Enter details of the anticipated completion date]

CONCLUSIONS AND RECOMMENDATIONS EXAMPLE: It is recommended that the Committee note the current progress of this investigation and the further action planned to be undertaken.

DRAFT CONDUCT ISSUES

[Enter details, if appropriate] …………………………………… [Enter investigator’s name] Investigator Professional Standards



SCHEDULE 4

PROFESSIONAL CONDUCT COMMITTEE

REPORT SEEKING RESOLUTION

Ref:

FILE NO:

COMPLAINANT:


DATE OF REPORT:

INVESTIGATOR:

THE COMPLAINANT


THE INVESTIGATION Extent of the Investigation [Enter details of the Society’s investigation] The Complainant’s version [Enter details of the complainant’s version]



The Solicitor’s version [Enter details of the solicitor’s version] The Version of Witnesses [Enter witnesses’ version]

ANALYSIS OF THE INVESTIGATION [Enter details of analysis of the investigation]

PROCEDURAL ISSUES [Enter details of procedural issues]

CONCLUSIONS AND RECOMMENDATIONS EXAMPLE: It is recommended that the Committee resolve to recommend to Council that the draft Charges be approved, re-engrossed, executed by the Society and proceeded with before the Solicitors Complaints Tribunal.

DRAFT CONDUCT ISSUES

[Enter details, if appropriate] …………………………………… [Enter investigator’s name] Investigator Professional Standards



SCHEDULE 5

BBRRIIEEFF OOFF EEVVIIDDEENNCCEE

MR [NAME OF BARRISTER] BARRISTER AT LAW

[ADDRESS]

IN THE MATTER OF A COMPLAINT BY [NAME OF COMPLAINANT]

ADVICE TO DRAFT DISCIPLINARY CHARGES



SCHEDULE 5 (CONT)

BBRRIIEEFF OOFF EEVVIIDDEENNCCEE

MR R AITKINSON APM COMMISSIONER OF POLICE

QUEENSLAND POLICE SERVICE 200 ROMA STREET

BRISBANE QLD 4000

REPORT ON THE INVESTIGATION BY THE QUEENSLAND LAW SOCIETY WITH RESPECT TO A COMPLAINT BY [NAME

OF COMPLAINANT]

THIS REPORT IS PREPARED PURSUANT TO SECTION 50A OF THE QUEENSLAND LAW SOCIETY ACT 1952



SCHEDULE 6

INDEX TO BRIEF

DOCUMENT SECTION

INDEX “I”

SYNOPSIS “SYN”

OBSERVATIONS “OBS”

DRAFT CONDUCT ISSUES “DR CI”

CHRONOLOGY “CHRON”

SCHEDULE(S) “SCH”

LEGAL MATERIAL & CASES “LM & C”

WITNESS INDEX “WI”

AFFIDAVITS

1. Affidavit of [Name] “A1”



EXHIBIT INDEX “EI”

EXHIBITS

1. Type of Exhibit “E1”





SCHEDULE 7

WITNESS INDEX

Name of Witness Position Summary of Evidence Production of Exhibits

[LEGEND “Name of Witness” Full name of witness and a contact telephone number “Position” Occupation of the witness “Summary of Evidence” Provide brief details of the important evidence the witness will give “Production of exhibits” Provide details of any exhibits (cross-referenced to Index) the witness is

expected to produce]



SCHEDULE 8

EXHIBIT INDEX

Type of Exhibit Method of Possession Witness who will produce Exhibit

Other Matters

[LEGEND “Type of Exhibit” Adequate description of the Exhibit (cross-referenced to Exhibit list) “Method of Possession” Process of how the Exhibit was provided to the Society “Witness who will Name of the Witness (cross-referenced to Witness list) produce Exhibit” “Other matters” Whether Exhibit is relied upon for other reasons (i.e. fingerprints, etc)]



SCHEDULE 9

AFFIDAVIT OF

(Filed on behalf of

the Applicant)

(Sworn this day of 2003)

Tel: Fax:

No.

IN THE MATTER of the Queensland

Law Society Act 1952 (as amended)

– and –

IN THE MATTER of

I, , of in the State of Queensland, of the , make oath and say as follows:

1.

2.

All the facts and circumstances herein deposed to are within my own knowledge

save where same are deposed to from information only and my means of

knowledge and sources of information appear on the face of this Affidavit.

SWORN by the abovenamed ) Deponent at Brisbane )

this day of )

before me )

Solicitor/A Justice of the Peace

___________________________________________________________________________________________________

SHEET 1

Deponent Solicitor/A Justice of the Peace



SCHEDULE 10

QUEENSLAND LAW SOCIETY – BRIEF OF EVIDENCE CHECKLIST

COMPLAINANT:


ITEM ACTION REQUIRED FURTHER ACTION FURTHER ACTION TAKEN

PRIVILEGED MATERIAL

Table of contents

Synopsis

Observations

• Offence identified

• Time limitation (if relevant)

• Authority to prosecute (if relevant)

• Offence elements proved by evidence

• Comment of witness credibility

• Possible defence

• Name of investigator

Draft Charges

Relevant legislation and cases

Other material

BRIEF OF EVIDENCE

Witness Index

Statements

Exhibit Index

Exhibits

Investigator: [Name] …………………………… …………………………… Signature Date Brief Assessor: [Name] …………………………… …………………………… Signature Date This checklist must be submitted along with the Brief of Evidence for the review of the Manager, Complaint Investigations

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