Ethics and Standards Quarterly: the role of PCAP

For any interaction with the Law Society, or the OLSC the PCAP should be the first port of call – if only for reassurance. The panel does not provide legal advice, but some of the panellists can provide legal services; to be discussed separately and by retainer.

PCAP can assist on a whole range of professional conduct issues including practice problems, trust accounts, discipline, regulation, show cause and disclosure. The assistance is confidential and independent of the Law Society of NSW. They are experienced solicitors with many years of expertise in professional conduct.

Upon receiving a letter, timing and action is critical, explains PCAP member David Castle.

“[PCAP] is available to provide help and a first line of support to practitioners who are in trouble of some sort,” he says.

“When practitioners receive a letter, it is tempting to put it aside, try to forget about it and then suddenly panic: ignoring the letter will only compound the problem.

“A lot of the time, people hope the situation can be rectified or will go away because it is a case of misunderstanding but also, they want to know: ‘how do I go about meeting the case against me’? And there is much we can do.”

Fellow Panel member Jennifer Shaw from Bartier Perry Lawyers, who has in depth experience in acting for and advising legal practitioners in relation to professional disciplinary matters, notes that many practitioners only need “that initial phone consultation” for reassurance.

“It is difficult to be objective when the complaint is about you,” she says.

“But I often hear from a practitioner that it feels like they have had a big weight lifted off their shoulders once they have spoken with the panel; and it makes sense, because upon receiving a letter, people are worried that they have received an attack on their professional reputation and question whether they will be allowed to continue to practise.”

Castle says the greatest concern is that it will put their practising certificate at risk, and with that, “their whole livelihood.”

Members of the PCAP (formerly known as the Senior Solicitors Panel) have for many years provided help for solicitors facing disciplinary proceedings. Members of the PCAP can also give guidance on disclosure requirements.

For example, a panel member may suggest  that you seek an extension of time to obtain legal advice, speak to an appropriate person at the Law Society of NSW, consult a specialist in the relevant area or contact the Solicitor Outreach Service.

Castle says the opportunity of speaking freely (without cost or obligation) to a senior solicitor – who has probably seen it all before – should not be missed.

Panel members not only have experience in such interviews but are kept up-to-date with regular meetings, case law and other relevant materials provided by the Law Society of NSW.

“Professional practice is not easy, particularly when considering the unique challenges brought about by COVID-19,” Castle says. The pandemic has exacerbated mental health problems, which are rampant in the community – and the profession is not exempt.

“Questions of concern to any solicitor may include ethical or conduct problems in daily practice, costs, consumer complaints and trust account issues.”

Anyone facing conduct issues will need to be aware of relevant statutory provisions, case law and practice and procedure. Navigating your way through this jungle requires expert assistance. Panel members can steer you in the right direction.

There are many statutes governing professional conduct. Important and relevant cases are also being decided all the time by the courts and tribunals. Recent decisions include an analysis of what is a “complaint”, fitness and propriety and the difference between removal from the roll and cancellation of the practising certificate.

Panel members will be able to provide guidance, from experience, of who to talk to and where to go for further help and information. Whether you have experienced conduct problems in your professional life or have had a complaint made against you, the PCAP should be your first port of call for reassurance and direction.

Castle says there “is usually a huge sense of relief” for solicitors just talking to an experienced and sympathetic person.

“People appreciate having that sounding board,” he says.

“We are people with lots of experience and it is free to contact us. My advice, for practitioners who receive a “show cause” or another letter from the regulator is ‘do it now The longer you leave it, the worse it gets”.