A NSW tribunal has dismissed six disciplinary cases against solicitors, and an unknown number since 2015 could be challenged, because of "irregularities which cannot be ignored" in complaints processing by the NSW Law Society and Office of the Legal Services Commissioner.
A Hunter solicitor facing professional misconduct proceedings became the sixth since June to have charges against him dismissed, and the fourth to have his legal costs paid by the Law Society, after tribunal decisions on Wednesday dismissing two discipline cases against solicitors.
The senior Hunter solicitor denied an allegation he misappropriated trust funds but admitted he caused a deficiency in his trust account. He declined to comment when contacted by the Newcastle Herald.
The tribunal dismissed the case against him because of the lack of a formal complaint under a flawed delegation process between the Legal Services Commissioner and Law Society since June, 2015.
The flawed process leading to an unknown number of legal "nullities" was first revealed on June 25 when a solicitor facing professional misconduct charges successfully challenged the complaints process in the NSW Civil and Administrative Tribunal.
The Law Society "failed to properly understand the ambit of its delegated authority" and assumed the roles of complainant, investigator, arbiter and prosecutor, the solicitor known as DXW told the tribunal before the charges against him were dismissed as having "no tenable basis in fact or law", leaving the tribunal with no jurisdiction to hear the case.
The making of a complaint was an "essential precondition" of disciplinary proceedings, but under a flawed delegation process the Law Society in September, 2016 simply forwarded a list to the Legal Services Commissioner of complaints it was "proceeding to investigate", which included the case of DXW.
The Office of the Legal Services Commissioner noted "Law Society Initiated Complaints", allocated reference numbers and advised the Law Society that "these complaints were opened in our office", Civil and Administrative Tribunal principal member Francis Marks said.
There was "no evidence" the complaint had been made to the commissioner in terms that would comply with the Uniform Law and requirements of the delegated authority, Mr Marks said.
"There is simply no evidence that he ever dealt with it in any way, other than to have acknowledged notification by the (Law Society)."
Mr Marks criticised the Law Society and Office of the Legal Services Commissioner as bodies that were "not to be regarded as unsophisticated members of the community with limited literary skills and a limited understanding of the statutory regimes in which they are operating".
"The Law Society of NSW represents solicitors in NSW and has wide ranging statutory duties and responsibilities extending to the regulation of the profession in NSW," Mr Marks said.
"The commissioner is a statutory officer having overall responsibility for the regulation of the profession in NSW. It might be thought in the circumstances that correspondence between them dealing with important matters concerning disciplinary complaints would be framed in a careful, deliberate manner eschewing any unnecessary ambiguity."
The failed process led to "irregularities which cannot be ignored", Mr Marks said.
The Law Society and DXW agreed to pay their own costs.
On September 4 the tribunal dismissed disciplinary proceedings against a second solicitor and ordered the Law Society to pay his costs after finding the case against him had "no tenable basis in fact or law" and was "misconceived" because of a similar flawed complaint delegation in 2017.
The tribunal dismissed a third disciplinary case against a solicitor, EBA, and awarded costs on September 25, and a fourth case five days later which also included a costs order against the Law Society because of the same flawed complaints delegation process.
On Wednesday the tribunal dismissed the case against the Hunter solicitor and another solicitor facing disciplinary proceedings initiated in 2017.
Tribunal senior member Alexander Wakefield on Wednesday noted the decision to dismiss the first successful challenge against the Law Society had not been appealed.
"It has not been shown to be in error nor does it appear to be demonstrably wrong," Mr Wakefield said.
The Law Society has been contacted for comment.