Subdiv 2Investigation of unsatisfactory professional conduct and professional misconduct

Subdivision 2—Investigation of unsatisfactory professional conduct and professional misconduct 77B—Investigations by Commissioner (1) The Commissioner may, on his or her own initiative, make an investigation into the conduct of a legal practitioner or former legal practitioner who the Commissioner has reasonable cause to suspect has been guilty of unsatisfactory professional conduct or professional misconduct. (2) Subject to this section and sections 67B and 77C, the Commissioner must make an investigation into the conduct of a legal practitioner or former legal practitioner if— (a) the Commissioner has been directed to make the inquiry by the Attorney‑General or the Society; or (b) a written complaint that complies with subsection (3a) has been received in relation to the conduct of the legal practitioner or former legal practitioner. (3) No direction may be given to the Commissioner under this section unless the Attorney‑General or the Society (as the case may require) has reasonable cause to suspect that the legal practitioner or former legal practitioner to whom the proposed investigation relates has been guilty of unsatisfactory professional conduct or professional misconduct. (3a) A complaint must— (a) identify the complainant; and (b) if possible, identify the legal practitioner or former legal practitioner about whom the complaint is made; and (c) describe the alleged conduct the subject of the complaint. (3b) A person who is subject to an order under section 39 of the Supreme Court Act 1935 prohibiting him or her from instituting proceedings (or proceedings of a particular class) may not make a complaint under this section. (3c) A complaint must be made to the Commissioner within 3 years of the conduct that is the subject of the complaint or such longer period as the Commissioner may allow. (4) The provisions of Schedule 4 apply in relation to an investigation under this section. 77C—Closure of whole or part of complaint (1) At any stage after receipt of a complaint, the Commissioner may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable: (a) the complaint is vexatious, misconceived, frivolous or lacking in substance; (b) the complainant has not responded, or has responded inadequately, to a request for further information or has unreasonably failed to cooperate in the investigation or conciliation of the complaint; (c) the subject‑matter of the complaint has been or is already being investigated, whether by the Commissioner or another authority; (d) the subject‑matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body; (e) the subject‑matter of the complaint is the subject of civil proceedings, except so far as it is a disciplinary matter; (f) the complaint is not one that the Commissioner has power to deal with; (g) the Commissioner is satisfied that it is otherwise in the public interest to close the complaint. (2) A complaint may be closed under this section without an investigation or without completing an investigation. (3) The Commissioner is not required to give a complainant, a legal practitioner, a former legal practitioner, a law practice or the Legal Services Commission an opportunity to be heard or make a submission to the Commissioner before determining whether or not to close a complaint under this section. (4) The power to close a complaint under this section extends to closure of part of a complaint. 77D—Notification of complaint to practitioner (1) The Commissioner— (a) may, after receiving a complaint about a legal practitioner or former legal practitioner, notify the practitioner or former practitioner of the complaint or give the practitioner or former practitioner a summary or details of the complaint; and (b) subject to section 77F, must, as soon as practicable after the Commissioner decides to investigate a complaint about a legal practitioner or former legal practitioner under section 77B and if he or she has not already done so, give the practitioner or former practitioner a summary or details of the complaint and a notice informing the practitioner or former practitioner of the right to make submissions; and (c) must, before making a determination (other than a determination not to investigate, or to close, a complaint) and if he or she has not already done so, give the legal practitioner or former legal practitioner a summary or details of the complaint and a notice informing the practitioner or former practitioner of the right to make submissions. (2) The Commissioner must— (a) subject to section 77F, as soon as practicable after deciding on his or her own initiative to make an investigation into the conduct of a legal practitioner or former legal practitioner or being directed to make an inquiry into the conduct of a legal practitioner or former legal practitioner by the Attorney‑General or the Society, give the practitioner or former practitioner a summary or details of the reasons for the investigation and a notice informing the practitioner or former practitioner of the right to make submissions; and (b) before making a determination and if he or she has not already done so, give the legal practitioner or former legal practitioner a summary or details of the reasons for the investigation and a notice informing the practitioner or former practitioner of the right to make submissions. (3) A notice informing the legal practitioner or former legal practitioner of the right to make submissions must specify a period of 21 days in which submissions must be received or a shorter or longer period if the Commissioner reasonably believes a different period is warranted in the circumstances. 77E—Submissions by legal practitioner (1) A legal practitioner or former legal practitioner who has received a notice of a decision or direction to make an investigation into his or her conduct may, within the period specified under section 77D, make submissions to the Commissioner about the subject‑matter of the investigation, unless the matter has been closed. (2) The Commissioner may, at his or her discretion, extend the period in which submissions may be made. (3) The Commissioner must consider any submissions made by the legal practitioner or former legal practitioner within the specified period in response to the notice before deciding what action is to be taken in relation to the matter, and may consider submissions received afterwards. 77F—Exceptions to requirement for notification of complaint (1) Section 77D(1)(b) and (2)(a) do not require the Commissioner to give a legal practitioner or former legal practitioner a summary or details of a complaint or the reasons for an investigation or a notice about making submissions if the Commissioner reasonably believes that to do so will or is likely to— (a) prejudice the investigation; or (b) prejudice an investigation by the police or another investigatory or law enforcement body of any matter with which the Commissioner's investigation is concerned; or (c) in the case of an investigation of a complaint—place the complainant or another person at risk of intimidation or harassment; or (d) prejudice pending court proceedings. (2) In that case, the Commissioner— (a) may postpone giving the legal practitioner or former legal practitioner the summary or details and the notice until of the opinion that it is appropriate to do so; or (b) may at his or her discretion give the legal practitioner or former legal practitioner the notice and a statement of the general nature of the complaint or reasons for investigation.