25 Tips for painless Disciplinary Inquiries

You are about to investigate a fellow professional for misconduct. Is there a tried and tested way to conduct a fair – and effective – disciplinary inquiry? Read on.

If you were a member of a disciplinary committee, how would you run it?

Here are some Tips.

A.  At the start: understanding the basics

Tip-1: What is ‘misconduct’?

Different professions define misconduct differently, but they are not all that diverse.  Some are in the form of written law. Some are common law tests. What is your professions definition?

Find out. And apply it.

Generally, ‘misconduct’ is some conduct that ‘professional brethren of good reputation and competency’ regard as being ‘disgraceful or dishonourable.’1 Allinson v Gen Council of medical education and registration [1894] 1 QB 750, Court of Appeal.  See also R v. General Medical Council [1930] 1KB 562, p. 569

For lawyers, only ‘grave impropriety … in a professional capacity’ amounts to misconduct.2Sec. 94 (3) Legal Profession Act 1976 (‘LPA 1976’)

Tip-2: Ensure your procedures are fair

The right to practice one’s profession is a fundamental right: it is a ‘right to life’.  It is guaranteed by the Federal Constitution.3Article 5(1), Federal Constitution

So ensure that there is fairness in the procedures you adopt.4Chief Executive Officer Department for Child Protection v Hardingham: [2011] 214 A Crim R 259 (Martin CJ, Murphy JA, and Allanson J) at [62] following Kioa v West [1985] 159 CLR 550 at 587 (Mason J) and 628 (Brennan J). See also Dr.Nitschke v Medical Board of Australia, Supreme Court of the Northern Territory [2015] NTSC 39 [p. 63, para 143]

Any decision you make that affects the right of the respondent (the person against whom the complaint is made) – whether as to procedure, a finding of misconduct, or punishment – will be closely scrutinised by the courts for ‘procedural errors.5Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301. The Federal Court ruled that ‘It is a ‘fundamental right guaranteed by Article 5(1) that a person’s life or personal liberty may not be deprived save in accordance with state action that is fair both in point of procedure and substance’: see paragraph 8, p.310

Tip-3:   Get your Quorum right

The law requires your DC committee to have a minimum number of members. It could be, e.g. two professionals and one layperson. If one of them is absent, adjourn proceedings and fix a new date.

Tip-4: Be deeply courteous and do not make the mistake of pre-judging

The complaint will be a lay member. He or she will not understand your DC procedure.  Explain it carefully, and if necessary, repeat it to the complainant patiently.

Be neither obsequious nor be a tyrant

Do not be obsequious to the respondent just because he is a fellow practitioner.  The complainant will go away suspecting he had had no chance.

On the other hand, do not – and do not appear to  – look down your nose at the respondent and make oppressive statements. Do not bully.  Do not be over-friendly.

Ask questions quietly and courteously.

When confronted with aggressive counsel, do not be combative, rude or overly authoritative. He is just doing his job, albeit with enthusiasm.

With a gentle word, allay the tension.  This comes out of decades of experience and diplomacy.

Do not pre-judge issues

In your own mind, make no decisions on the charges until all the evidence is in, and until after you have heard all the arguments from both sides.

You know why? Your body will betray you!

Some part of your body will demonstrate what your beliefs are.  A slight frown here, a slight slump of the shoulders there, the meaning-filled glance you throw at your DC colleague – these will speak volumes.

Be conscious of your body and mind.  Stay neutral in that quiet place in your mind where judgements are made.

If you feel a sense of power, banish that thought!

The parties in the tribunal are-you think-at your mercy.

You sense an internal glow, a sense of power.

If you feel this way, you are in trouble! You know why?

You might make errors which appellant’s counsel will pick up with glee at the High Court.  The Court will end up writing about it, and will exhibit your errors for all to see, for all time!

So, learn to be circumspect; and learn to exercise the greatest what you say, or do.

Do not seek to influence other DC members

Listen to every single colleague. You might say, e.g.

“What would be your view on this point?”

“How about that point?”

Do not say to your colleagues, especially your lay colleague,

“You know what, I think this guy is guilty as sin!”,

or

“I think we should give this guy another chance”.

Don’t.  You might interrupt their thinking-process. Or discomfit them. Or overwhelm them into abandoning their views.

Be quiet.  Let them talk first.

Listen to their views. If they stumble, do not wade in and talk – wait for them to collect their thoughts.

When they are finished, then explain your views.

Let your arguments be methodical and evidenced-based.

Tip-5: Explain the Roadmap – the order of events

Explain how the proceedings will start, who will go first, how evidence will be taken, and how documents are to be treated.

Explain to the parties what comes first, what next, and what last.

Encourage them to ask you questions.

Do not shut out any party from a legitimate query. Otherwise, he might complain to the High Court that the disciplinary committee (‘DC’) was ‘unfair’.

A lack of a roadmap may result in an inquiry losing its direction, or a complaint to the court that there was no ‘fairness of procedure’.

Tip-6:  What is the scope of your duty – to investigate or to adjudge guilt?

Generally, a body that ‘investigates’ merely gathers facts. It does not make legal decisions.

Sometimes a statute may empower a DC to ‘adjudicate’. Then the DC must make ‘findings of fact’ – that is to say – it must come to ‘legal conclusions’ from the evidence presented before it.6For example, a DC established against practicing lawyers is required to ‘record its findings in relation to the facts of the case’ and ‘shall determine’ and ‘make recommendations to the Disciplinary Board’: see sec. 103B and 103C (1) of the LPA 1976.

Decide what you can do, and what you have to do: these are two different things.

Most disciplinary rules require the DCs to make inquiries and then to recommend to a higher body what decisions the latter could make. There the duty of the DC ends.7 This is true for lawyers’ and doctors’ DCs.

Tip-7: Comply with statutory prerequisites peculiar to your profession

Read your profession’s statutory rules with a microscope.

The Act, regulations or rules under which you have been appointed may require you to carry out certain obligations.

Comply with them.8e.g. under the LPA, a DC must ‘deliver’ to the respondent lawyer the Record of Complaint; and notify him of hearing dates.

If you do not, the respondent will complain to the High Court that he has been prejudiced by a lack of ‘fair procedure’.

Tip-8:  Record everything in writing – Keep adequate Notes of Proceedings

Most professional bodies require their disciplinary tribunals to record their proceedings in writing.9See ss.103B (1A) and s.103C (1) LPA 1976

Otherwise, it is difficult to explain to the High Court what exactly transpired during the inquiry.

The appellant can complain to the High Court judge about whatever he dislikes –unless there is opposing material to contradict him, the court will believe the appellant.

Your notes cannot be scant.  You cannot say, e.g.:

We convened on 21.01.2018 and heard all the parties.

After five hearings, we made our decision.

That is unacceptable.

The more detailed the notes are, the better it is, but there is no need to go overboard.

Keeping a Record of Proceedings is not a luxury.

It is a statutory requirement. So, comply with.

Tip-9:  DC proceedings are confidential

So ask the permission of the parties before allowing a third party transcriber to be present.

What happens in the DC, stays in the DC, except for appeal records.  It cannot become the subject of your after-dinner anecdotes.

Some chairmen bring their own staff into the DC proceedings to take notes.

Be careful when you do that.

DC proceedings are confidential.

The introduction of non-parties into the proceedings breach the right to confidentiality.10Sec. 76, LPA 1976

You must ask the permission of all parties before you do that – and record that in writing.

Tip-10: Formulate a charge

Some professions demand a charge to be formulated.11The Malaysian Medical Regulations demand it.  The Legal Profession Act does not demand it, but the precise details of the complaint must be made known to the respondent.12Federal Court in Majlis Peguam Malaysia v. Rajehgopal Velu & Anor [2017] 2 CLJ 493, paras 29-32

A charge focusses everyone’s attention on what has to be proven.

So, it is always a good practice to do four things:

First, read the complaint carefully. Explain it to the parties in simple language. Then ask the complainant how many complaints he has, and what they are.  Write down his answers.  Read them out to the parties.

Next, ask the complainant to confirm the details that make up his complaints. If he agrees, record that. If he does not, clear his doubts, and record it.  If he complains to the High Court, your written record will save you.

Third, ask the respondent what he thinks the complaints are against him. And repeat the procedure administered to the Complainant.

Finally, if you discover some extra matters which are potential complaints – that neither party has recognized – bring it to their immediate attention; and record it in writing.

Frame them all into charges and read them aloud to the Respondent.  Ask him how he pleads, and request that he defend himself against each of the charges, including the newly-discovered ones.

You cannot wait until the end of the inquiry  to ask him about it.

Give him enough time to do it.13Otherwise, you would be condemning the respondent unheard: you will fall foul of the ‘audi alteram partem rule’ (‘Let the other side be heard also’).

And record all that.

Tip-11: Understand the difference between ‘burden of proof’ & ‘standard of proof’

‘Burden of proof’ means it is for the complainant to prove that the respondent is guilty of misconduct.

It is not for the respondent to prove he is innocent.

The phrase ‘standard of proof’ is something else.

It is simply the strength of all the evidence that has been brought against the respondent.

It must cross a line: in DC proceedings that line is called ‘proof beyond a reasonable doubt.’14Majlis Peguam v Cecil Wilbert Mohanaraj Abraham [2019] MLJU 265

You can see an explanation of this concept here or here.

You are now ready to start the investigative hearing.

B.  During the Inquiry

The disciplinary proceeding has begun in earnest. What happens next requires a different kind of treatment.

Tip-12: What is the most important rule?

Do not run the DC like a criminal court.

Do not discomfit the complainant, who is almost always a layperson.

The tribunal must ensure that there is natural justice and fairness of procedure.

Beyond those rules, a disciplinary tribunal is the master of its own procedure.15T.A. Miller Ltd. v. the Minister for Housing and Local Government and Another (1968) 1 WLR 992, per Lord Denning M.R.  What does that mean? If no procedure has been set out in the rules, you can create your own procedure-just make sure that it is fair to both sides.

Tip-13:  Can hearsay be admitted in DC proceedings?

Tribunals can act on any material which is logically probative, even if such material will not be strictly considered as evidence in a court of law.16R. v Deputy Industrial Injuries Commissioner, Ex parte Moore [1965] 1 QB 456

Hearsay can be admitted – if it is reliable.17Ibid.  See also McLean, Scot, ‘Evidence in legal profession disciplinary hearings: Changing the lawyers’ paradigm’, UQLJ Vol. 28, p.2

Lord Denning once said:

Hearsay is clearly admissible before a tribunal. No doubt in admitting it, the tribunal must observe the rules of natural justice, but this does not mean that it must be tested by cross-examination. It only means that the tribunal must give the other side a fair opportunity of commenting on it and of contradicting it.

Tip-14:  Ask the Witnesses to take the Oath

A man’s career is at stake.  Obviously, any evidence given before the tribunal demands that it must be on oath.

Tip-15:  Call the Complainant’s evidence

Ask the Complainant to lay out his evidence.  Ask if he has any other witness.  Call all of them, one at a time. Those not before the tribunal must be asked to sit outside.

Allow the respondent or his counsel to cross-examine the complainant’s witnesses, and examine his documents.

Then ask the respondent to present his defence.

Allow him to call his witnesses.

Permit the Complainant or his lawyer to cross-examine the respondent’s witnesses and examine his documents.

Tip-16: Can you force witnesses to appear before you, or demand documents from third parties?

Usually, no.

The medical tribunals do not have that power.18e.g. the PIC or the Disciplinary Board, or the MMC

The tribunals convened against lawyers do.19See s.103B (2), and103B(2)(b) and (c), LPA

Tip-17: Dealing with interlocutory applications

Sometimes a party may apply to the DC for certain orders: these are known as ‘interlocutory applications’.20‘Interlocutory’ means ‘in the course of the proceedings’. Any decision that you make in these applications cannot be the ‘final resolution of the whole controversy’.

The question is whether the DC has the power to make such orders. It may be a simple application to adjourn proceedings. Or one to ‘stay proceedings’21Meaning, ‘please do not go on with these proceedings’ because a similar case is going on in a court of law.

Most jurisdictional issues can only be resolved by your appointing body, so you need to refer them to your appointing body.22If you are a professional advocate and solicitor, the decision has to be made by the Disciplinary Board. If you are a body constituted under the Medical Act 1971, it has to be the Malaysian Medical Council.

But you cannot refuse a party’s reasonable request.23e.g. an adjournment should be granted where a party’s close relative has passed away. That would be unfair.

Tip-18: Dealing with Interlocutory Objections

What if you have been asked to make various ‘interlocutory decisions’ (see the last tip), and one party is unhappy with you? Can they rush to the court and get an order to stop you?

That, again, depends on what powers you have under the rules. In the legal profession, all objections are to be determined by the DC, but the DC must go on to and complete its inquiry.

It cannot wait. It cannot dawdle while one party takes his grievance to the court.24sec. 103EA(2)and (5) of the LPA

The Respondent may eventually take up such grievances as a ground of appeal to the High Court.25See sec. 103EA(8), LPA

Tip-19: Can you ‘stay disciplinary proceedings’ pending the decision of a similar case at the court?

That depends on what powers you have under the relevant law.

But probably not.

Where a disciplinary proceeding has commenced, it cannot be ’stayed’ because an identical case is taking place in a court of law.26Messrs Choong & Co (suing as a firm) & Ors v Advocates & Solicitors’ Disciplinary Board & Ors [2004] 1 MLJ 385.

C.  At the end of proceedings

Once the witness hearings and arguments are over, three processes await your determination.

[1]. How will you analyse the evidence?

[2].  How will you arrive at your conclusions?

[3].  How will you present the result of your investigation, conclusions, and recommendations to the superior body?

Most of the mistakes occur in this area.

Tip-20: Do not dismiss a complaint because a complainant is absent

A fundamental mistake made by DCs is to dismiss a complaint because the complainant is absent. You assume he is disinterested in the complaint.

Your job is to investigate, and if necessary, to adjudicate. Do that.

Do not take shortcuts.

The right thing to do is to record the parties’ absence and reconvene a second hearing.27Where a complainant is absent in DCs against lawyers the Bar Council on its own initiative may intervene: Rule 9, of the Legal Profession (Disciplinary Proceedings) Rules 2017.

Use that time to ‘investigate’ the material before you.

If, after numerous reminders, the parties are absent, examine the evidence, and make your conclusions.  Either recommend a dismissal, or a finding of misconduct.

Justify your decision in writing.

And then leave the rest to the superior body.

Tip-21: Do not make a respondent liable only because he is absent

This is the reverse of Tip-20. Where a complainant has presented his case, but the respondent has been absent, you must do two things.

First you must send at least two written notices to him, inviting him to defend himself.

Send your notices to the right address(es); and ensure the respondent has in fact received them.

Despite all this, if the respondent is still absent, then analyse the evidence.

Decide whether to recommend to the superior body that the complaint has failed, or has been successful.

Tip-22: Writing the Recommendation – always explain the reasons for your decision

Your written report must explain why you arrived at your decision, what facts and evidence you looked at, what evidence you found acceptable, and why you had rejected others. It is a mandatory requirement.

You cannot record:

“We convened on 21.01.2018 and heard all parties.

After five hearings, we found the respondent liable.

That is horribly inadequate. The respondent will have a field day in court.

What were the charges?

What was the evidence in favour of, and against, each of the charges?

‘Liable’ for what?  And for what reasons?

What were the relevant pieces of evidence?

Did they pass muster?  [Meaning, were these strong evidence, or were they weak, or at worst, inadmissible and had to be rejected?]

When gathered together are the strands of evidence believable, on a ‘standard’  that is ‘beyond a reasonable doubt’?

These are the questions that the High Court will look out for.

Explain that.

Tip-23:  How to analyse the elements of charge and examine the evidence

All charges have obvious elements.

Take e.g. a charge that a doctor had given the wrong treatment to a patient while being uncontrollably drunk.

First, describe the charge.

Then you must examine if the complainant was able to establish, by evidence, that the patient and the doctor were in the same place, at the same time.

Were there other witnesses who supported the version that the doctor had been drunk?

If there are no such witnesses, unless the doctor admits it, it is his word against the patient’s. And that cannot amount to evidence beyond a reasonable doubt.

What if two nurses had testified that the doctor had been slurring all evening and was unsteady in his gait?

What if another doctor had turned up, and having examined the treatment given to the patient, declared that such treatment was quite proper?

So there is ambiguity.

So there is ambiguity in the evidence.

Which will you believe? You must not  –  of course – believe everybody blindly.

You must carry out your own balancing exercise.

You must inspect which piece of evidence is most reliable. You must give each piece of evidence some ‘weight’, and see which is ‘heavier’, on which side the evidence tip the scale.

If the second doctor is the respondent’s wife, her evidence cannot carry much weight.

But if she had been an independent doctor from another hospital, her evidence would be acceptable  –it could be free from bias.

Against all that, that study the cause of the alleged intoxication.

Suppose the respondent testified that he took a drug for an illness, and it had a side effect – that had caused slurred speech or unsteadiness? What then? If his testimony is supported by the nurses’ testimony – his version of the events would be the more convincing.

However, if available evidence demonstrates that the respondent-doctor had been seen swigging a bottle of whiskey to the dregs, then anything he said would be difficult to believe.

But so what if he is wrong? Or had been drunk?

Did he perform his professional duties satisfactorily? If Yes, the charge cannot stand.

So, explain all that, carefully.

Then say,

“The complaint has been made out because …”

And then explain why the evidence points to your conclusion.

Finally, conclude that,

“The tribunal is, on the foregoing grounds, satisfied that there exists evidence on a standard beyond a reasonable doubt that the respondent is liable for misconduct.”

Do not write,

“In all the circumstances the respondent is liable” –  if that sentence was not preceded by proper analysis.

The phrase ‘is liable’ is ambiguous.

If the word ‘misconduct’, or the phrase  ‘serious misconduct’ is missing from your report, it will be difficult to defend your report.

Any ambiguity in a report will always be resolved in favour of the respondent.

So be clear as a bell.

If the Complaint has been unsuccessful, explain why so.  Then say, at the end of your report:

“On the material presented before us, we are satisfied that no misconduct has been made out, and we do hereby recommend that this complaint be dismissed.”

Tip-24: How to choose the right punishment?

There are three principles here:

Concurrent Punishments, Proportionality, and Mitigation.

More than one punishment

A disciplinary body does have the power to hand out more than one punishment at the same time.  But this usually depends on the rules under which it is operating. Disciplinary tribunals against lawyers28See e.g. sec. 94(2) of the LPA 1976 and accountants29See e.g. Rule 17(3) of the Malaysian Institute of Accountants (Disciplinary)(No.2) Rules 2002 can recommend more than one punishment, for example.

Proportionality

You cannot sentence someone with a punishment which is too light, or too heavy.  Any person who has exhibited a despicable conduct – conduct that is completely out of keeping with the trust reposed upon him by a client – must be thrown out of the profession.

But on which side of the line should the respondent be placed? That is the headache every DC faces.

The punishment of most professions, from the most severe to the most trifling, are:-

(1)      removal as a member from the Register of Professionals (usually called ‘striking off the Roll of Members’);

(2).     suspension of the right to practice as a professional for a period of time;

(3).     the imposition of a fine

(4).     a reprimand

Who should be struck off?

A doctor who has sexually assaulted his colleagues or staff, or a lawyer who has stolen or has made free with his client’s monies, or an accountant who has deliberately misstated his client’s accounts to profit himself – these are clear examples of misbehavior that merit a striking out’ order. Any conduct that involves fraud or dishonesty, or a breach of duties as trustee – attracts the highest punishment.

Offences of a lower magnitude which are seriously unprofessional, [and optionally – which have been rectified in time by the respondent] may merit an order of suspension – but here the lines start to blur. Find out what is the practice in your own profession and apply it carefully.30cf. sec. 30 of the Medical Act 1971, and sec. 94(2) of the LPA 1976

Fines

Fines are imposed on a wide variety of circumstances: from those in which the professional caused his client to lose money – to situations where a professional has knowingly procured secret profits.

If a lawyer took his client’s money, it is not good enough for him to be thrown out of his profession – something more has to be done as a deterrent. So a fine is usually imposed.

Most professions define a maximum fine.31For the legal profession, the ceiling is no more than RM50,000.00 per offence.

It is rather odd that the medical profession does not fine errant members.32See sec. 30 of the Medical Act 1971

Reprimand or Censure

Some misconduct requires nothing more than a slap on the wrists, and a good telling-off of an otherwise reasonable respondent.

That is only when a reprimand is useful.

It is meaningless to castigate a professional who will do it all over again.

Mitigation – before imposing any set of punishments, examine if the respondent has exhibited ‘mitigating factors’

It is a good practice –  before you can recommend a punishment to the higher body –  to record any fact that will lighten the burden of the respondent.

The respondent may have been cooperative. He may have produced documents against him.   He may have been particularly obedient.  He may have accepted the error of his ways.  He may have expressed contrition and regret to the complainant. He may have repaid to the client all of the latter’s money.  He may have been totally truthful during his inquiry.

Be careful not to confuse sycophantic and obsequious behavior as a ‘mitigating factor’, or a tough defensive stance, as an aggravating one.

Record all, that so that when the superior body33MMC, or the Advocates and Solicitors Disciplinary Board, or the accountants’ Disciplinary Appeal Board etc considers a punishment, these factors may come in useful.

Then make your recommendations.

Tip-25: When can you ask one party to pay monies to the other?

There are two ways this can be done: by a restitutionary order; and by an order for costs.

Some professions do allow their respective disciplinary body to order the respondent to pay to the complainant all the monies he has taken from the client,34 See e.g. ss. 103C(2) and sec. 103D(5) of the LPA 1976. or to pay to the profession itself a sum.35See e.g. Rule 17(3) of the Malaysian Institute of Accountants (Disciplinary)(No.2) Rules 2002.

Costs for defending frivolous or malicious complaints

The respondent may feel that he has been put to unnecessary legal expenses. In the legal profession, he can ask the Disciplinary Board to record an opinion that the complaint was frivolous or vexatious’. 

Armed with the DB order, he can then ask the High Court to order the costs of the proceedings be paid by the complainant.36See sec. 103EB, LPA 1976

So … best of luck!

 

 

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