Improving professional courtesy and supervision of young lawyers are two areas of growing interest for the Law Society’s Professional Conduct Committee.
The Professional Conduct Committee (PCC) is a Committee of the Law Society Council and, under delegation from the Council, makes decisions and determinations on complaints under the Legal Profession Uniform Law (NSW) (Uniform Law). It operates through a “Joint Committee” made up of the members of two smaller committees.
The Committee is made up of solicitors from a wide range of practice areas, as well as lay members who have backgrounds in professions and industries including accounting, medicine, and social work.
The Committee’s Deputy Chair and Law Society Councillor Jacqueline Dawson says, “the primary role of the Committee is to ensure the public is protected.”
“It is a disciplinary body, but I do think the Committee does more than meting out discipline. There is guidance [to be given] if people engage with the process.”
Unsatisfactory professional conduct, defined in s296 of the Uniform Law, includes conduct of a lawyer occurring 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 lawyer.
Committee member and criminal solicitor Alexandra Sarmed says the Committee “is seeing a lot of new matters of discourtesy between solicitors, mostly related to emails.”
“COVID disruptions meant more things are being handled over email, and solicitors need to remember that emails can still end up before the court,” she says.
“People use multiple forms of communication, and there are instances where emails are going to court and the right people are not being copied in, as one example.
“There is an increase in this, with more people approaching the Law Society regarding communication in emails.
“There are some common-sense solutions to this, including remembering to always take a breath before you press send, and treat others like you would want to be treated. Have another read of the Conduct rules and be mindful of them.”
Dawson adds to this that some instances of discourtesy are happening in online court, which should serve as a reminder to solicitors that appearing virtually is “not a chat at the coffee shop.”
“The question is whether those interactions are meeting a level of misconduct,” she says.
The Law Society’s Professional Standards Department (PSD) supports the Council and its committees on the exercise of certain regulatory functions under the legislation. One of the key objectives of the Uniform Law is to promote regulation of the legal profession that is “efficient, effective, targeted and proportionate”.
Both Sarmed and fellow Committee member David Miller believe supervision, especially for younger or more inexperienced lawyers, is an increasing area of concern.
“There is a need for principals and partners to supervise junior staff,” Miller, who also sits on the Law Society’s Ethics Committee, says.
“If they are left to their own devices when they are inexperienced, they are making mistakes. When after two years of supervised practice, they immediately apply for an unrestricted practising certificate and put up their own shingle, they are trying to attract clients.
“They could then be dealing with or advising on quite complex matters: they could be quite arcane or technical matters that the solicitor has no experience in.”
Miller has been a member of the Committee for a decade and describes his ongoing appointment as “an honour.”
Together, PCC and PSD dealt with about 659 matters in the 2023 financial year. Of those, 30 matters resulted in a disciplinary outcome: 10 referrals to NCAT, 15 PCC Reprimands and 5 PCC Cautions.
The Committees only deal with the most serious, potential “disciplinary matters”. Less serious “consumer matters” are dealt with exclusively by the Office of the Legal Services Commissioner.
The majority of cases are closed due to no further investigation being required, but other reasons can include a misconceived complaint or a matter that has already been investigated or referred to another body. The Committee may decide to defer consideration of a complaint on the basis that further information ought to be requested by PSD. All disciplinary findings other than cautions are reported on the OLSC disciplinary register.
Dawson says that getting a complaint notice is “one of the most stressful things” which can happen to a solicitor, and many proven instances of misconduct come down to “a good solicitor making a series of poor decisions.”
“It’s often not what people have done, but what they do next. That is why really engaging with the process, and education, are both critical,” she says.
Sarmed says she finds being a member of the Committee “very rewarding.”
“It is really important to have a broad cross-section of solicitors and a lot of work goes into every meeting,” she says.
“Solicitors [in NSW] should be quite confident that matters are being considered very carefully.”