Misconduct of Australian Lawyers under Legislation Based on the National Model – Aligning the Common Law Tests with the New Statutory Regime

Under a recent Model Bill providing for the regulation of the Australian legal profession, statutory misconduct of lawyers is described as ‘unsatisfactory professional conduct’ and ‘professional misconduct’. These terms have been in use over the past decade or so in legislation in various Australian jurisdictions and now uniformly appear in state and territory Acts based upon the Model Bill. These statutory terms as such are not substantively defi ned but certain conduct is included within the ‘defi nitions’, namely a lack of competence and diligence and conduct evidencing unfi tness to practice, and instances of both forms of statutory misconduct are provided. The courts have in the past determined whether conduct constitutes statutory professional misconduct by reference to the common law test of disgraceful conduct formulated in Allinson v General Council of Medical Education and Registration. Similarly, they have determined whether conduct constitutes statutory unprofessional conduct by reference to the common law test of conduct falling short formulated in Re R, A Practitioner of the Supreme Court. An issue arising generally and from the inclusive defi nitions of the statutory terms under the current legislation is whether it remains appropriate for courts and disciplinary tribunals to continue to apply these common law tests in determining whether the conduct under consideration constitutes professional misconduct and unsatisfactory professional conduct, respectively. The principal aim of this article is to demonstrate by reference to the language of and policies underlying the new legislation that neither test is apt for that purpose and that a new approach is required.