Speeches and Papers
Complaints Against Lawyers: What Are They About and How Are They Handled?
Steve Mark
NSW Legal Services Commissioner
May 1995
Vision
We want to lead in the development of an ethical legal services market which is fairer, more accessible and responsive.
Mission
To reduce complaints against the legal profession received and
handled by this office, by:
Developing and maintaining appropriate complaints handling processes
Promoting compliance with high ethical standards
Encouraging an improved customer focus in the profession
Developing realistic expectations by the community of the legal system
Background of Office
The Office of the Legal Services Commissioner was established by the Legal Profession Reform Act 1993 which amended the Legal Professional Act 1987 by (inter alia) inserting a new Part 10 into that Act.
Part 10 deals with the handling of complaints against, and the discipline of legal practitioners in NSW. It defines professional misconduct and the more recent concept of unsatisfactory professional conduct, establishes my position and my office, discusses how complaints are to be handled by the various bodies involved in discipline against legal practitioners and various other incidental matters.
The new Part 10 was proclaimed on 1 July 1994 which, coincidentally, was the date I commenced my duties as Commissioner and opened the Office.
In the ten months which have elapsed we have established the Office, set up administrative and complaint handling systems, hired requisite staff, determined policies and practices, produced brochures, complaint forms and other educational materials, designed a computer database, held over 50 talks and seminars on the operation of the Act and received over 2500 complaints against legal practitioners in NSW, as well as over 300 requests for reviews of decisions made on complaints by the Law Society and Bar Association.
As the Chinese proverb says "we live in interesting times".
Underlying conceptual base of the Office
As mentioned, I have delivered approximately 50 seminars and speeches concerning the operation of the legislation and the directions for my Office since we were established in July last year. These speeches and seminars have been delivered almost exclusively to legal practitioners. There are two main reasons for this:
- Legal practitioners were both extremely nervous about the prospect of the appointment of a external independent regulator and very much needed to understand my role.
- It would have been extremely unwise to widely publicise the existence and operation of my Office to consumers of legal services (previously known as clients, customers or punters) prior to hiring the staff and setting up the systems needed to handle the flood of inevitable complaints
In virtually every speech that I have given to the Profession, I have outlined what I consider to be the three underlying conceptual bases of our Office's operation and direction. If any of you have attended previous speeches given by me, I apologise for the repetition, but experience leads me to believe that I will need to be making this speech for some little while yet.
Justice vs. Law
A major underlying conceptual issue which forms part of our philosophical base is found in the dichotomy between the perceptions of law and justice held by consumers of legal services and that understood by the profession.
Stated simply, consumers of legal services, or those individual members of the community who seek the services of a solicitor or barrister are almost always seeking justice. The difficulty arises when what they receive from their legal practitioner (or the legal process) is not justice as they perceive it, but law.
Common sense, or common understanding leads us to acknowledge that justice is a subjective concept unique to each member of the community seeking it. The same sensibilities lead us to acknowledge that in litigation, for example, at least 50% of those seeking "justice" are going to be dissatisfied. The number is actually far higher as a significant percentage of those who "win" their case have either not won enough or not on the desired point or have not received sufficient revenge.
It has also become apparent to me that members of the community who seek justice almost exclusively consider justice in terms of outcome, while the profession, when confronting the concept of justice, almost always discuss it in terms of process. This dichotomy inevitably leads to lawyers and clients not only speaking different languages, but having totally different mind sets.
Because of this, and as a result of the flood of complaints I receive from disgruntled consumers, I consistently implore lawyers to ask the simple question "what do you hope to achieve through this process?" on confronting their client for the first time. This reality test is essential as, in many cases, what the client really wishes to achieve is simply not on offer through the legal process.
Careful and sensitive handling by the legal practitioner of this first interaction would better define the role the lawyer needs to play in assisting the client achieve what is reasonable, as well as hopefully reducing the level of communication breakdowns which occur, and reducing as well the resultant number of complaints to my office.
Historical Basis for Complaint Handling
The second conceptual issues which forms a basis of our Office's direction can be found in the distinction between the way complaints have been historically handled by the Law Society and Bar Association Councils and the way I view the process both as required by the new legislation and as a result of increasing consumer pressure.
It is my belief, and I am sure the representatives of the Law Society and Bar Association Council will correct me if I'm wrong, that historically the complaint handling process as administered by those bodies was concerned primarily with upholding high ethical and practice standards within the profession. In other words, the Councils established the standard expected of practitioners, and when that standard was not reached, the practitioner was disciplined or removed. The "get rid of the bad apples" approach to professional improvement. While this approach is central to and essential in any professional regulation programme, if taken by itself, it has one fatal flaw: it gives pitifully little value directly to the consumer.
It might be said that ensuring that practitioners meet the high ethical standards set by the profession will result by itself in an improved profession and thereby improved service delivery. I am not aware of a great deal of scientific evidence to prove this theory in any profession.
This presents a dilemma to me as I think it would be generally acknowledged my Office was created through consumer pressure for independent regulation. This would suggest that it is expected of me to deliver some form of consumer outcome. A further difficulty arises when I attempt to discover what those consumers actually desire by way of outcome.
What the Consumer Wants
The overwhelming majority of people who lodge complaints against legal practitioners in NSW are simply not interested in a result whereby the legal practitioner gets disciplined. What they are after is the outcome they originally went to their practitioner for and failed to get.
They want the conveyance to go through, the personal injuries action to finally get listed, the estimate for settlement to be in accordance with what they were originally told, they want the kids from the marriage, they want to get out of jail. In short, they want "justice".
In many instances what the complainant wants to achieve through the complaint handling process is not on offer. So my office spends a great deal of time explaining, to the best of our ability, why the legal system "failed" them. It is almost a truism that a significant proportion of this work could be obviated if the legal practitioner better communicated with the client in the first place about their expectations, the legal process, what could be expected, and how the outcome was achieved.
This office must have a very strong consumer focus. This does not mean that we take on and act for complainants against practitioners. In fact we see complainants and practitioners both as our clients. It does mean however that we need to spend time either face to face or on the phone with complainants to discuss the basis of their problem which gives rise to their complaint, and try to explore solutions to that problem. We can then often refer information gained in this way to the practitioner which may resolve the dispute.
What we actually do
We are now the first port of call for all complaints against legal practitioners and licensed conveyancers in NSW.
All complaints received by the Law Society and the Bar Association are now referred to us at first instance. When we receive these complaints, or when complaints are received directly by us, we initially decide whether we have jurisdiction over the complaint or whether the complaint should be otherwise declined.
Section 141 of the Act gives me power to dismiss a complaint where:
(a) If further particulars of the complaint are not given, or the complaint or the further particulars are not verified, as required by the Commissioner; or
(b) If the complaint is frivolous or vexatious
Where I decide to dismiss a complaint under this section, I notify the complainant and give them the reasons for my decision.
Where I decide not to exercise my power under Section 141, I make one of three other choices.
- I determine to keep the complaint within my office seeking further information and attempting informal mediation, or mediation as defined under division 4 of Part 10 - Mediation of Consumer Disputes.
- I determine that I will investigate the complaint myself under Section 147A of the Act.
- I refer the complaint to the appropriate Council for investigation, with or without directions as to how that investigation should be conducted.
On our present statistics, of the total complaints received we refer slightly less than 60% of those against solicitors to the Law Society for investigation and approximately 80% of those complaints against barristers to the Bar Association for investigation. The remainder are retained by this Office and resolved in one way or another.
Reviewing Councils Decisions (Monitoring role)
Where a matter is referred to the appropriate Council, and that Council subsequently decides to dismiss a complaint or reprimand a legal practitioner, and the complainant is dissatisfied with this result, they can request a review of that decision under Section 158 of the Act. This request for review must be made in writing and within two months after the decision to dismiss or reprimand is notified to the complainant. In addition, if the Council does not notify the complainant of its decision with respect to the complaint within six months after the complaint was referred to the Council, the matter may be reviewed by me. In that case, the Council is taken to have dismissed the complaint for the purposes of this Section.
To date we have received over 300 requests for review which have not only created a huge backlog, but an administrative and practical nightmare for my Office.
When my office was established, the Legal Profession Conduct Review Panel (the body which previously had the function of reviewing decisions of the various Councils), was abolished, and the function was transferred to this office. The Conduct Review Panel consisted of nine individuals, both legal practitioners and lay persons, any three of which looked at each decision by the Council prior to making their determination. The determination once made was usually communicated to the complainant in a simple one line letter which said, generally that the Panel upheld the decision of the Society. If the Panel disagreed with the decision by the Council they could refer the matter back for a "rehearing" or, in some instances, through the Attorney General to the Disciplinary Tribunal.
Under Section 160 of the new Part 10, when I have completed a review of a Council's decision I may:
(a) Confirm the complaint is dismissed or that the legal practitioner is reprimanded; or
(b) Direct the appropriate Council to refer the matter to mediation; or
(c) Reinvestigate the complaint or direct the appropriate Council to do so; or
(d) Institute proceedings in the Tribunal against the legal practitioner or direct the appropriate Council to do so.
Each review can be very time consuming as it often deals with very complex legal and practical matters and contains voluminous materials. In practice, I call for the file from the appropriate Council and review that file to determine whether I accept that the procedures of investigation were properly adhered to. I can (and do) also seek information from the complainant or other parties to consider whether the decision by the Council is one I would uphold.
The resources of this Office do not enable me to handle all the reviews that I have received in house. Accordingly, I am attempting to establish a pool of legal consultants to assist me in the review handling process and advise me on how best to exercise my discretion on each review.
As stated earlier, I have received over 300 requests for review, and to date have only completed approximately 50, with another 50 in train. It is hoped that with the establishment of a pool of legal consultants I will be able to reduce the backlog within approximately three or four months, and after that time be able to offer a one/two month turn around time on reviews.
Perhaps the final thing I need to say about the review function here is that if I have instituted an investigation of a complaint myself under Section 147A, and determined to dismiss that complaint, at present the only review of my decision would be through the Supreme Court's original jurisdiction or its Administrative Division.
Other important powers and functions
What follows is a list of some other important powers or functions held by me by virtue of the new Part 10.
Section 136 - I may initiate a complaint against any legal practitioner.
Section 157 - a complaint must be in writing, identify the complainant and the legal practitioner against whom it is made and give particulars of the alleged conduct complained of.
Section 138 - a complaint may only be made within three years after the conduct is alleged to have occurred unless I am satisfied that it is just and fair to extend the time having regard to the delay and the reason for the delay, or I am satisfied that the complaint concerns an allegation of professional misconduct and it is necessary in the public interest to investigate the complaint.
Section 139 - a complainant who has suffered loss because of the conduct, the subject of the complaint, may request a compensation order from me, but such a request must be made within six years after the conduct complained of.
Section 149 - I can monitor investigations by a Council into a complaint and the Council is required to provide any assistance required.
Section 150 - I may give the Council directions on the handling of a complaint. I can also issue general guidelines to the Councils about the investigation of complaints.
Section 151 - I can arrange for the appointment of an independent investigator if requested to do so by the Council.
Section 152 - a Council or myself may require a legal practitioner to provide information or to produce documents and to verify any such information by statutory declaration.
The Council or myself also have power to waive a solicitor's lien if it is satisfied it is necessary for the orderly transaction of the client's business.
Section 153 - the Council or myself may apply under Part 11 of the Act for an assessment of costs claimed by a legal practitioner.
Section 155 - the Council or myself must institute proceedings in the Tribunal with respect to a complaint against a legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner would be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct.
However, the Council or myself may instead reprimand the legal practitioner, if the legal practitioner consents and we are of the view that the practitioner would be found guilty of unsatisfactory professional conduct (but not professional misconduct). In such cases, I or the Council must be satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against him or her.
Section 171M - the inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners is not affected by the amendments.
Section 171N - I am required to prepare and forward to the Attorney General an annual report.
Section 171P - a person who discloses information obtained in the administration of that part of the Act is guilty of an offence in certain circumstances.
Section 171S - a legal practitioner must comply with a requirement under the Act to answer a question or produce information despite any duty of confidentiality in respect of a communication between the legal practitioner and a client.
Consumer Disputes
An analysis of the over 2500 complaints received by this Office shows that it is clear that a large percentage of them do not clearly relate to conduct which obviously falls within the statutory definitions of professional misconduct or unsatisfactory professional conduct.
Importantly however, even though the conduct may not necessarily come within the disciplinary provisions of the legislation, the complainant is aggrieved by and generally dissatisfied with the actions of a lawyer. For example, a solicitor may have taken what the complainant believes to be an unduly long time to respond to the complainant's enquiries and requests for further information. Alternatively, although communication may be regular between client and lawyer, the client feels that the lawyer has not kept them fully informed of their legal position and options. In addition, in many cases it is clear from our contact with the complainant that their grievances, although serious enough to be sent to the appropriate Council for investigation, will in all probability be dismissed because it is simply a case of the complainant's word against that of the solicitor and there is no further evidence to shed light on the substance of the complaint.
The government, following the recommendations of the NSW Law Reform Commission, made some provision in the legislation for resolution of these sorts of matters. Division 4 of Part 10 provides for the mediation of consumer disputes. Our concern is that the legislation does not provide adequate means for the resolution of all the disputes we receive in this area.
Effective mediation of consumer dispute is central to achieving the necessary level of client satisfaction with the Office of the Legal Services Commissioner envisaged by the Act and those that agitated for its establishment.
We have been actively involved in providing "informal" mediation by telephone and face to face contact with consumer and legal practitioners. We have attempted, wherever possible, to encourage the resolution of disputes between consumers and practitioners, and our figures show that not withstanding the fact that the office has had scant resources to apply to this area, we have been very successful. We have also noted that the Law Society itself has increased its role in similarly promoting resolution of disputes. However, the structure of Division 4, Part 10 of the Act dealing with the mediation of consumer disputes has yet to be effectively utilised.
There are several possible reasons for this. Firstly, as it is the basic philosophy of this Office that we provide a high level of customer service, the involvement in the "informal" mediations has perhaps obviated the need for access to the more formal system. Another concern about the formal system is its costs. It is unclear where the money would come from to provide for formal mediators, and this could contribute to the fact that they have not been utilised. Also, there are a number of structural problems with the formal mediation system which I believe need legislative attention.
It is my view that, for the formal mediation of consumer disputes to be effectively achieved, one of two models should be adopted. The first model would require that the legislation acknowledge the focus of my Office in resolving consumer disputes, and hive off any matters which may involve professional misconduct or unsatisfactory professional conduct for formal investigation. In short, this would to some extent bring the activities or operations of my Office more in line with the model utilised by the NSW Anit-Discrimination Board in resolving complaints of discrimination.
The second model would be to appoint a mediation facilitation organisation or individual which could oversee the process associated with mediation while still retaining the power for me to maintain a list of appropriate mediators.
Whichever model is ultimately adopted I consider it imperative that for a formal mediation to be successful I should be able to compel parties to attend.
It may be thought by some that this goes against the traditional view that for mediation to be successful the parties must come with clean hands as well as a desire to resolve a dispute. Unfortunately, in this area we find that in the vast majority of circumstances where a consumer dispute arises, the legal practitioner simply does not believe that they have done anything wrong. In addition, lawyers still have a long way to go before they realise that resolving a consumer dispute with a client (who is actually contributing to the financial viability of the practitioner) can amount to a valuable commercial as well as social tool.
So, until the time when it is not necessary to compel individuals to attend mediation, due to the fact that mediations occur in house spontaneously, I believe the Act should reflect reality.
Educational Focus
Earlier in this paper I went to some length to describe some of the underlying concepts which drive my Office. To complete the picture I now turn to two additional issues.
Firstly, like every good Chief Executive of a Public Sector Agency, I have to be able to measure or assess the performance of my Office over time. In short, I have to be able to answer the question "has the Office succeeded?". To answer this question, it is of course necessary to be able to articulate what it is the Office is attempting to achieve.
In my travels around NSW speaking to legal practitioners I often pose the question "what should the basic performance indicator of this Office be?". To encourage discussion I point out the fact that this Office was created by consumer pressure and agitation (but not to detract from the good work of the Law Reform Commission and various members of parliament), and their main stated concern was that the profession was incapable of self-regulation. Consumers often pointed to the fact that up to 95% of all complaints lodged against solicitors and barristers prior to the creation of this office were unsuccessful. By that they meant only approximately 5% of complaints have ever resulted in disciplinary action taken against practitioners.
So, one potential performance indicator for the Office would be to increase the percentage of complaints which result in disciplinary action by, say, 5% per year. This brings an unsurprising howl of concern from legal practitioners. They raise, amongst other concerns, the fact that such a development would inevitably give rise to questions of bias against me as Commissioner. While there may be a grain of truth in what they raise, my main concern is that I cannot see how an increase in the percentage of complaints resulting in disciplinary action against practitioners delivers an outcome that this consumer is going to be satisfied with.
Accordingly, it is my view that the only long term valid performance indicator for this Office should be a reduction in complaints against legal practitioners. This poses several problems, including the fact that since the establishment of this Office we have seen an increase of more than 30% in the number of complaints lodged against practitioners compared to previous years under the old system. It is also important to note that this increase has appeared without any major publicity campaign being directed at consumers of legal services.
However, I am still committed to a reduction in complaints handled by my Office as prime indicator of our performance. In order to achieve this objective, it will of course, be necessary for us to have an educative role.
This educational role must be directed at two objectives:
- Educating the profession in a way designed to achieve better customer service delivery by the profession.
- Educating the community so that consumers of legal services have realistic expectations about what the legal profession can provide.
To achieve this objective my Office has embarked on an educational programme which in its early stages involves holding seminars throughout NSW, the production of two videos dealing with client/lawyer communication and work towards the development of a client care rule in NSW, modelled on the rule that exists in England and which has been introduced (after a fashion) in Queensland.
This is in addition to our production of brochures and educational materials which are still in the planning stage, and our responsibilities as defined by the Act to survey the profession and the community about their views on the workings of the complaint handling process.
Part 10 of the Act recognises that the Office will have an educational role, but in a sense restricts that role to promoting community education about the regulation and discipline of the legal profession and assisting in the enhancement of professional ethics and standards [Section 131(1)(i)(j)]. Obviously, the educational campaign that we suggest is necessary in order to achieve our objective of reducing the number of complaints handled against legal practitioners and will involve close liaison and full consultation with the Councils. Discussions which have occurred between my Office and the various Councils has to date given me nothing but confidence that a joint approach to the educational programme will deliver benefits for us all, as well as for the general community.
Statistics
In our first nine months of operation I am pleased to report that we have achieved significant results. In this relatively short period the Office has handled approximately 5000 telephone enquiries with over 3500 being referred to Inquiry Officers for extensive consultation. We have conducted over 375 face to face interviews, processed approximately 2500 complaints and 300 applications for review.
The staff establishment for the Office is 10, with one position still unfilled and three positions filled temporarily. These statistics have to be considered in the knowledge that for much of the period focused on, we were working with a staff of four or five. In addition, it should be noted that in the last full year of reporting the Law Society and Bar Association together received in the neighbourhood of 2300 complaints.
As mentioned earlier, in the neighbourhood of 40% of the complaints received against solicitors and 20% of those received against barristers are resolved in this Office so that even though there has been an overall increase in the number of complaints, there has actually been a reduction in the number of complaints proceeding to formal investigation by the Councils.
The Rule of Law
Over the last few years there has been an increasing amount of press coverage on issues which could be said to be directly related to the Rule of Law. In itself I strongly believe that this should be applauded. In my view there are far too few people in our society who understand such crucial issues as the separation of powers, the role of judiciary or the profession and indeed the concept of the Rule of Law.
We have seen attacks on the independence of the judiciary based on everything from unwise comments by judges to concerted attacks by government to abolish courts, sack judges or other legal officers.
While I need not explain to this audience the ramification of such actions, I feel that I must address a concern raised by some about the question of independent regulation of the profession and how such independence sits vis-a-vis the Rule of Law.
A recent article in the Modern Law Review (MLR 58:2, March - Published in the UK) explores the question as to whether the institution and operation of a Legal Services Ombudsman raises important concerns directly connected to the Rule of Law.
The Legal Services Ombudsman has existed in the UK since 1991 and performs a similar role to mine, with several notable exceptions. The article, "The Legal Services Ombudsman: Form Vs Function?" by Rhoda James and Mary Seneviratene raises a number of very interesting issues.
Firstly, the authors point out that a Legal Services Ombudsman is the first of the so called ombudsmen in that country to embrace both the public and the private spheres being directed at the private profession but funded by the State. Secondly, the authors point out that traditionally an ombudsman is seen principally in terms of the defender of public rights or as an adviser or educator on the setting of standards of good practice. They then make the point that the Legal Services Ombudsman's principle role is that of a regulator which moves that office into dangerous waters vis-a-vis the regulation of the profession and therefore a potential infringement on the Rule of Law.
Their argument principally appears to be that one of the central principles of the Rule of Law is "equality before the law", which entails access to the means to seek legal redress. "Since lawyers provide the medium through which individuals gain such access, the way in which they carry out this skilled, facilitating function is a clear constitutional concern. The Legal Services Ombudsman, therefore, in standing above the providers of legal services and monitoring their performance, is inhabiting a new and particular constitutional position which points directly to the Rule of Law".
In my role as Legal Services Commissioner, I see my role as encompassing that explained above as attributed to the Legal Services Ombudsman in the UK, but with more extensive powers in the area of investigation of complaints and monitoring of the complaint handling processes exercised by the Councils.
Regulation of the Legal Profession as I see it could only infringe upon the Rule of Law where that regulation resulted in the profession itself denying quality of access to consumers, or if it allowed for arbitrary removal of professionals from practice for political or personal reasons and not associated with compliance to professional standards and obligations.
I trust that what I have explored in this paper makes it clear that my role is directed at improving access generally and equality of access specifically to the legal system. Indeed, it my view that such a role will strengthen the Rule of Law rather than assault it.
I am fully heartened by the last paragraph of the abovementioned article where the authors state:-
"If the Ombudsman does not have adequate powers, is it a matter of consequence? Leaving aside the Parliamentary rhetoric which accompanied the introduction of the scheme, we would argue that because of the importance of the role which lawyers play in protecting and upholding the Rule of Law, it is essential that there is public confidence in the way in which lawyers carry out their functions. If the Legal Services Ombudsman is to oversee the way in which lawyers deal with their clients, he must have adequate powers to fulfil that role. Consideration should now be given to ways in which his existing powers can be augmented".
Money versus ethics
Finally in this paper I would like to mention a rather salutary experience I had not long after being appointed as Commissioner.
I was giving a dinner speech at one of the reasonably large commercial firms about my role and function and the directions I thought important for the development of the office.
It was one of those speeches where I was having a pretty rough time getting any level of response, positive or negative from the audience. I perceived that the audience either was not interested in what I had to say or was resistant to the principles I was enunciating.
So I abandoned my prepared talk and opened to general discussion on some of the principles that I have previously mentioned in this paper and had also raised in the talk that night.
One man got up and, in a rather angry manner, offered the following question.-
"Mr Mark, you tell us that we are members of a profession and as such have not only a responsibility, but* indeed an accountability to the general community. Well our bank mangers and accountants call us business men and say that we have an accountability to them. Do you see any tension here"?
In my response to his question, I raised a hypothetical example of how a room full of medical practitioners would have reacted to a similar speech. I put to the audience that I doubted very seriously whether one could find a medical practitioner who would be prepared to stand up in front of his or her peers and say something like: "Mr Mark, on the one hand I have medical ethics and on the other I have a need to make money, I'm dropping the ethics and going for the money". Well some might think along those lines, I doubt strongly whether any medical practitioners would be brave enough to raise those comments in front of their peers.
It concerns me greatly that the legal profession seems to have lost, at least to some extent, an understanding about how essential ethics and professional standards are to the survival of the profession. To this I would add my belief that ethics and professional standards are also central to high levels of customer service delivery. In other words, money and ethics are not always in conflict, that good customer service based on sound ethics and practise standards result in nothing more than good business sense.
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