Evidence in Legal Profession Disciplinary Hearings: Changing the Lawyers Paradigm

By McLean, Scott | University of Queensland Law Journal, December 2009 | Go to article overview

Evidence in Legal Profession Disciplinary Hearings: Changing the Lawyers Paradigm


McLean, Scott, University of Queensland Law Journal


I INTRODUCTION

From 1 December 2009 the discipline of legal practitioners in Queensland will be governed by two pieces of legislation--the Legal Profession Act 2007 (1) (LPA) and the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). (2)

The importance of the new legislation to lawyer regulation in this State is twofold. Firstly, the Legal Practice Tribunal (LPT) will be abolished and its functions replaced by the newly created Queensland Civil and Administrative Tribunal (QCAT or Tribunal). (3) Secondly, new procedural provisions will apply to disciplinary proceedings before the Tribunal. In particular, section 28(3) of the QCAT Act provides that the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (4) Importantly, the QCAT Act expressly provides that the Tribunal must ensure, as far as practicable, that all relevant material is disclosed to it so that it can decide the matter with all relevant facts. This provision suggests that, as noted by the Attorney General in his second reading speech, QCAT is meant to provide for 'more flexible procedures than are used in courts and will have a more inquisitorial approach compared with the traditional court based processes'. (5)

Though these are provisions are not novel, it will be interesting to observe the approach of the Tribunal in exercising its inquisitorial procedures in proceedings under the LPA. There is an inherent risk that the Tribunal, like many tribunals before it, may fall into the 'trappings of judicial decision-making' (6) with both lawyers and decision makers reverting to formal practices and procedures more appropriate to the traditional adversarial systems common with criminal and civil proceedings--the adversarial paradigm. As, notwithstanding the importance of the disciplinary process to the protection of the public and the integrity of the legal system in all Australian jurisdictions, it is apparent that there continues to be a misunderstanding or 'default position' by some policy makers, investigators, respondents and decision makers as to the purpose and nature of disciplinary proceedings--especially in the context of practice and procedural matters.

It is suggested that the prime source of this misunderstanding flows from the adversarial paradigm which informs much of Queensland's (and, in fact, all common law jurisdictions) legal system so that legal profession disciplinary hearings are viewed as either criminal or civil proceedings with outcomes seen as civil penalties or punishment in a quasi-criminal sense. (7)

The adversarial paradigm is itself based on a number of key concepts. At its simplest, the adversarial system is generally recognised as being a contest between parties such as a prosecutor (or a plaintiff) on one side and the accused (or defendant) on the other. In most cases, both civil and criminal, the judge will take only a minimal role in the investigation of the issues in dispute or the calling of the evidence. Further, in civil (8) and criminal proceedings, the issues are defined by the parties through an indictment or pleadings (9) and these are the only issues presented to a Court for consideration.

The problem is that, on almost every point, the factual assumptions underlying the adversarial paradigm (in which lawyers are educated and practice) are seriously flawed when viewed in the context of legal profession disciplinary proceedings (10).A review of the legislation and disciplinary case law throughout the country demonstrate that this paradigm can impact on a wide range of decisions including:

* The adoption of an unnecessarily adversarial approach by respondent's to either the investigation or to the disciplinary proceedings themselves;

* The practice and procedure adopted by a disciplinary body in hearing discipline applications;

* Whether or not to commence disciplinary proceedings;

* The characterisation of conduct by disciplinary bodies together with the appropriate sanctions to be imposed on a finding of guilt;

* Whether or not the rules of evidence are applicable to disciplinary proceedings;

* Whether or not certain evidence should be admissible in disciplinary proceedings. …

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