Commissioner initiated investigations
The Legal Profession Uniform Law empowers the Commissioner to initiate an investigation about the conduct of a lawyer even where no complaint has been made or if a complaint has been withdrawn. Under the Uniform Law these are called ‘Commissioner initiated investigations’. They were previously called ‘own motion investigations’.
This is an important power as it enables the Commissioner to investigate conduct that is improper or unsatisfactory where clients and/or witnesses may not be sufficiently aware of proper legal practices to raise a complaint. Conduct outside of legal practice may also be deemed inappropriate. Accordingly this is a significant consumer protection power.
Types of Commissioner initiated investigations
A Commissioner initiated investigation may be undertaken in any number of circumstances, including the following:
- where a disciplinary complaint is withdrawn and the Commissioner considers that the investigation should continue
- following receipt of a trust account investigation report
- following receipt of a referral by a Judge or Magistrate about a lawyer’s conduct in Court
- following identification of improper conduct of a lawyer in the media
- following identification of improper conduct in an investigation by the Commissioner into some other conduct; or
- following receipt of a report by another agency such as the Office of Public Prosecutions about a criminal prosecution of a lawyer.
There may be other occasions where the Commissioner is able to initiate a complaint. The Commissioner’s Own Motions Investigation Policy (30KB) provides further details.
Actions following an investigation
Following an investigation, the Commissioner has a range of powers.
Where the Commissioner is satisfied that the lawyer would be found guilty of unsatisfactory professional conduct by the Victorian Civil and Administrative Tribunal, the Commissioner may:
- order a caution or a reprimand;
- order an apology;
- order the lawyer or law practice associate to redo the legal work at no cost, or to reduce or waive the costs for that work
- order further training, education, counseling or supervision
- issue a fine up to $25,000
- recommend a condition be applied to the lawyer’s practising certificate
- bring charges against the lawyer before VCAT;
Where the Commissioner is satisfied that the lawyer would be found guilty of professional misconduct by VCAT, the Commissioner can bring charges against the lawyer before VCAT.
Recent Commissioner initiated investigations
The following are examples of conduct that have been the subject of investigation following a complaint initiated by the Commissioner:
- breach of trust account rules
- failure to submit tax returns
- practising law without a practising certificate; and
- abuse of court processes.