South Australian Current Acts South Australian Current Acts77J—Powers of Commissioner to deal with certain
unsatisfactory professional conduct or professional misconduct
(1) If, after
conducting an investigation into conduct by a legal practitioner under this
Division, the Commissioner is satisfied that there is evidence of
unsatisfactory professional conduct and that the conduct in question can be
adequately dealt with under this subsection—
(a) the
Commissioner may determine not to lay a charge before the Tribunal and may
instead exercise any 1 or more of the following powers:
(i)
the Commissioner may reprimand the legal practitioner;
(ii)
the Commissioner may order the legal practitioner to
apologise to any person affected by the practitioner's conduct;
(iii)
the Commissioner may order the legal practitioner—
(A) to redo the work that is the subject of
the investigation at no cost or to waive or reduce the fees for the work; or
(B) to pay the costs of having the work
that is the subject of the investigation redone;
(iv)
the Commissioner may order the legal practitioner to
undertake training, education or counselling or be supervised;
(v)
the Commissioner may order the legal practitioner to pay
a fine not exceeding $5 000;
(vi)
the Commissioner may make an order imposing specified
conditions on the practitioner's practising certificate (whether a
practising certificate under this Act or an
interstate practising certificate)—
(A) relating to the practitioner's legal
practice; or
(B) requiring that the practitioner, within
a specified time, complete further education or training, or receive
counselling, of a type specified by the Commissioner;
(vii)
the Commissioner may, with the consent of the
legal practitioner, make any other order the Commissioner considers
appropriate in the circumstances; or
(b) the
Commissioner may, if the legal practitioner consents to such a course of
action, determine not to lay a charge before the Tribunal and may instead
exercise any 1 or more of the following powers:
(i)
if the Commissioner believes that the legal practitioner
may be suffering from an illness or a physical or mental impairment,
disability, condition or disorder (including an addiction to alcohol or a
drug, whether or not prescribed) that has detrimentally affected his or her
ability to practise the law, the Commissioner may order the legal practitioner
to—
(A) submit to a medical examination by a
medical practitioner nominated by the Commissioner and to undertake any
treatment recommended by the medical practitioner; or
(B) receive counselling of a type specified
by the Commissioner; or
(C) participate in a program of supervised
treatment or rehabilitation designed to address behavioural problems,
substance abuse or mental impairment;
(ii)
the Commissioner may order the legal practitioner to
enter into a professional mentoring agreement with the Commissioner and to
comply with all conditions of the agreement;
(iii)
the Commissioner may make orders with respect to the
examination of the legal practitioner's files and records by a person approved
by the Commissioner (at the expense of the legal practitioner) at the
intervals, and for the period, specified in the order;
(iv)
the Commissioner may order the legal practitioner to pay
a fine not exceeding $10 000;
(v)
the Commissioner may make an order suspending the
legal practitioner's practising certificate (whether a practising certificate
under this Act or an interstate practising certificate) until the end of the
period specified in the order (not exceeding 3 months);
(vi)
the Commissioner may make an order requiring that the
legal practitioner make a specified payment (whether to a client of the
practitioner or to any other person) or do or refrain from doing a specified
act in connection with legal practice.
(2) If, after
conducting an investigation into conduct by a legal practitioner under this
Division, the Commissioner is satisfied that there is evidence of professional
misconduct and that the misconduct in question can be adequately dealt with
under this subsection, the Commissioner may, if the legal practitioner
consents to such a course of action, determine not to lay a charge before
the Tribunal and may instead exercise any 1 or more of the following powers:
(a) the
Commissioner may reprimand the legal practitioner;
(b) the
Commissioner may order the legal practitioner to apologise to any person
affected by the practitioner's conduct;
(c) if
the Commissioner believes that the legal practitioner may be suffering from an
illness or a physical or mental impairment, disability, condition or disorder
(including an addiction to alcohol or a drug, whether or not prescribed) that
has detrimentally affected his or her ability to practise the law, the
Commissioner may order the legal practitioner to—
(i)
submit to a medical examination by a medical practitioner
nominated by the Commissioner and to undertake any treatment recommended by
the medical practitioner; or
(ii)
receive counselling of a type specified by the
Commissioner; or
(iii)
participate in a program of supervised treatment or
rehabilitation designed to address behavioural problems, substance abuse or
mental impairment;
(d) the
Commissioner may order the legal practitioner to enter into a
professional mentoring agreement with the Commissioner and to comply with all
conditions of the agreement;
(e) the
Commissioner may make orders with respect to the examination of the
legal practitioner's files and records by a person approved by the
Commissioner (at the expense of the legal practitioner) at the intervals, and
for the period, specified in the order;
(f) the
Commissioner may order the legal practitioner to pay a fine not exceeding
$20 000;
(g) the
Commissioner may make an order imposing specified conditions on the
practitioner's practising certificate (whether a practising certificate under
this Act or an interstate practising certificate)—
(i)
relating to the practitioner's legal practice; or
(ii)
requiring that the practitioner, within a specified time,
complete further education or training, or receive counselling, of a type
specified by the Commissioner;
(h) the
Commissioner may make an order suspending the legal practitioner's
practising certificate (whether a practising certificate under this Act or an
interstate practising certificate) until the end of the period specified in
the order (not exceeding 6 months);
(i)
the Commissioner may make an order requiring that the
legal practitioner make a specified payment (whether to a client of the
practitioner or to any other person) or do or refrain from doing a specified
act in connection with legal practice.
(3) Despite
section 72(3), subsections (1) and (2) do not apply in relation to a
former legal practitioner, but if, after conducting an investigation into
conduct by a former legal practitioner under this Division, the Commissioner
is satisfied that there is evidence of unsatisfactory professional conduct or
professional misconduct that occurred while the former legal practitioner
remained a legal practitioner and that the conduct in question can be
adequately dealt with under this subsection—
(a) in
the case of unsatisfactory professional conduct, the Commissioner may—
(i)
determine not to lay a charge before the Tribunal and may
instead order the former legal practitioner to pay a fine not exceeding
$5 000; or
(ii)
if the former legal practitioner consents to such a
course of action, determine not to lay a charge before the Tribunal and may
instead order the former legal practitioner to pay a fine not exceeding
$10 000; and
(b) in
the case of professional misconduct, the Commissioner may, if the former
legal practitioner consents to such a course of action, determine not to lay a
charge before the Tribunal and may instead order the former legal practitioner
to pay a fine not exceeding $20 000.
(4) If the
Commissioner proposes to exercise a power under subsection (1), (2) or
(3), the Commissioner—
(a) must
provide the complainant (if any) and, in the case of the exercise of a power
that does not require the consent of the legal practitioner or former
legal practitioner, the legal practitioner or former legal practitioner with
details of the proposal and invite them to make written submissions to the
Commissioner within a specified period; and
(b) must
take into consideration any written submissions made to the Commissioner
within the specified period, and may but need not consider submissions
received afterwards; and
(c) is
not required to repeat the process if the Commissioner decides to exercise the
power in a different way, or exercise a different power, after taking into
account any written submissions received during the specified period.
(5) The Commissioner
may, in determining whether to exercise a power under this section in relation
to a legal practitioner or former legal practitioner, take into account—
(a) any
previous action relating to the practitioner under this section or a
corresponding previous enactment; or
(b) any
finding relating to the practitioner by the Tribunal, the Supreme Court or a
corresponding disciplinary body of—
(i)
professional misconduct or
unsatisfactory professional conduct; or
(ii)
unprofessional conduct or unsatisfactory conduct (within
the meaning of this Act as in force before the commencement of this Division).
(6) An order under
this section must be reduced to writing and be signed—
(a) by
or on behalf of the Commissioner; and
(b) if
it is an order requiring the consent of the legal practitioner or former
legal practitioner—by the legal practitioner or former legal
practitioner to whom it applies.
(7) A condition
imposed on a practising certificate by an order under this section may be
varied or revoked at any time on application by the legal practitioner to
the Tribunal.
(8) The Commissioner
must, as soon as possible after determining to exercise a power under this
section, provide the complainant with written notification of the
determination.
(9) An apparently
genuine document purporting to be a copy of an order under this section and
providing for the payment of a monetary sum by a legal practitioner (other
than a fine), will be accepted in legal proceedings, in the absence of proof
to the contrary, as proof of such a debt.
(10) A contravention
of an order under this section is professional misconduct.
(11) If the
Commissioner has ordered payment of a fine, a certificate of the fine must be
filed in the Supreme Court.
(12) If a certificate
has been filed under subsection (11), proceedings may be taken for the
recovery of the fine as if the certificate were a judgment of the Supreme
Court.
(13) The cost of a
medical examination, medical treatment, counselling or a program of supervised
treatment or rehabilitation undertaken by a legal practitioner pursuant to an
order of the Commissioner is to be borne by the practitioner.
(14) In this
section—
"medical practitioner" means a person registered under the Health
Practitioners Regulation National Law to practise in the medical profession
(other than as a student).