Amendment, suspension or cancellation by the Board
We have the power to amend, suspend or cancel practising certificates. Each of the following is a ground for amending, suspending or cancelling your practising certificate:
- you failed to provide the required statement following a show cause event;
- you failed to comply with a requirement of Chapter 7 made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation;
- we consider that you are no longer a fit and proper person;
- you are not, or no longer, covered by an approved insurance policy;
- you are engaging in legal practice that you are not entitled to engage in under the certificate (i.e. practising outside the conditions of the holder’s practising certificate).
In circumstances where we consider there are grounds to amend, suspend or cancel your practising certificate, we will issue a notice stating the proposed action, the grounds for the proposed action and the facts and circumstances that form the basis for our belief.
You will have a specified time to make written representations to us as to why the proposed action should not be taken and we will consider these representations before making our decision. However, where it is necessary in the public interest to immediately suspend a practising certificate, we may take this action with immediate effect. Persons subject to immediate suspension are entitled to provide written representations about the suspension. An immediate suspension will be in force until the earlier of the following:
- we make a formal determination in accordance with the usual amendment, suspension or cancellation procedure referred to above, or
- the expiration of 56 days.
If your practising certificate is suspended, you will be unable to practice during that period.
You can apply to the Victorian Civil and Administrative Tribunal for review of our decision to amend, suspend or cancel a practising certificate.
Complaints and disciplinary outcomes
We are also responsible for the receipt and handling of all complaints about lawyers in Victoria.
Where the Commissioner initiates disciplinary proceedings against a lawyer, the case will usually be heard before the Victorian Civil and Administrative Tribunal. The decision made by VCAT, or any other relevant court, will generally be published on the Australian Legal Information Institute (AustLII) website.
Cost disputes and service issues
The Commissioner has the power to make binding determinations in consumer matters where disputes over legal costs are below $11,665.
In situations where the disputing parties have reached a stalemate and cannot agree on what amount should be paid, the Commissioner has the power to determine what costs are fair and reasonable under the relevant circumstances. The Commissioner will generally first refer such matters for a costs review. The outcome of the costs review will often form the basis of what the Commissioner determines to be fair and reasonable legal costs.
The Commissioner is also able to make a determination that a lawyer or law practice associate has engaged in unsatisfactory professional conduct. These determinations may result in the Commissioner ordering the lawyer or law practice to redo the work; apologise or undertake either counselling, supervision or further training. The Commissioner may also issue a the lawyer or law practice with a caution or a reprimand or order that compensation is paid (under certain circumstances).
All Determinations made by the Commissioner are now available via the Australasian Legal Information Institute (AustLII).
Commissioner initiated complaints
The Commissioner can initiate a complaint and commence an investigation into the conduct of a lawyer, even where a complaint has not been made by another person, or if a complaint has been withdrawn.These are called ‘Commissioner initiated complaints’. 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 complaints
A Commissioner initiated complaint 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.
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.