In this Issue:
Disciplining `Frequent Fliers'
Slater & Gordon List on the ASX
Civility Continued
The OLSC is moving premises
OLSC statistics - May madness!



DISCIPLINING `FREQUENT FLIERS’
By Steve Mark
Legal Services Commissioner

Over the past few months I have become increasingly concerned about the number of practitioners who are the subject of frequent inquiries or complaints, which individually could not result in disciplinary action but demonstrate a distinct pattern of inappropriate conduct. Such conduct for example may include a practitioner who misleads his clients on a number of occasions over a span of years but never to a degree on any one occasion to amount to professional misconduct or unsatisfactory professional conduct, or a practitioner who is the subject of separate complaints concerning a failure to return telephone calls over a period of time. This pattern of inappropriate conduct is known as ‘course of conduct’ and is distinct from the conduct of a repeat offender who is disciplined on numerous occasions.

In most circumstances, inappropriate conduct by a practitioner involves an isolated act or omission. An investigation of a practitioner our Office, the Law Society or the Bar Association, is often enough to ensure the practitioner’s future compliance with the NSW Professional conduct and Practice Rules (‘the Rules’), the Regulations and the provisions in the Legal Profession Act 2004 (‘LPA 2004’). Some practitioners, however, do not change and repeatedly engage in conduct in contravention of the Rules, the Regulations and the LPA 2004. Sometimes the conduct warrants sanction in one form or another but often the conduct is of such a minor nature that the standard set by the LPA 2004 obliges our office to dismiss the complaint as there would be no likelihood that the individual offence would see the practitioner found guilty of unsatisfactory professional conduct or professional misconduct in the Administrative Decisions Tribunal.

Our statistics reveal that over the past three years, at least 50 practitioners have had 10 or more complaints lodged against them. Whilst a number of these practitioners have been disciplined either by reprimand or caution for their conduct, some have escaped sanction because the individual complaint detailing their inappropriate conduct did not in and of itself warrant disciplinary action.

This is largely because in NSW each complaint is dealt with individually and each complaint stands or falls on its own merits. Previous sanctions are only considered when determining a penalty. Previous complaints are not considered. So if the OLSC is faced with a single complaint alleging failure to return telephone calls, the OLSC is unable to use the practitioner’s history, which may indicate whether the practitioner has been subject of other similar complaints.

Consequently that practitioner will not be disciplined for the inappropriate conduct even though it may have been the 8th complaint alleging a failure to return telephone calls within a few years.

Several years ago a number of jurisdictions in the United States recognised this predicament and began to question whether and how they could institute a system that would allow them to account for the entire history of the practitioner’s conduct including multiple complaints.

In Massachusetts the Board of Bar Overseers/Office of the Bar Counsel approached the problem by instituting a screening process whereby investigation files are opened for minor complaints if there is a history of complaints by a practitioner. The file is referred to a disciplinary counsel for further investigation no matter how minor the complaint. In deciding whether to refer a matter to disciplinary counsel, the Board of Overseers will also take into consideration exactly how many complaints have been made concerning the practitioner. Disciplinary counsel is entitled to hold the minor complaints open for several months to see if more complaints come in. The Board of Overseers and the Supreme Judicial Court of Massachusetts consider the cumulative effect of several violations in determining the sanction.¹ As the Supreme Court of Massachusetts commented:

“The respondent also argues that the imposition of a suspension on the basis of the cumulative effect of, as he characterized them, ‘little tiny matters,’ is a “radical departure” from other disciplinary cases. The simultaneous consideration of separate violations, is an established part of the disciplinary system of this Commonwealth…We conclude that consideration of the cumulative effect of several violations is proper”.²

Arkansas has also contemplated instituting a system to deal with a practitioner’s entire history including complaints. The system suggested would be similar to the drivers licence point system that takes into account the accumulative weight of all the practitioner’s history over a certain time period. The proposed system would operate on the basis of a 9-point scheme as follows:
(a) a practitioner who receives a warning letter would lose 1 point;
(b) a practitioner who receives a caution would lose 2 points;
(c) a practitioner who receives a reprimand would lose 3 points; and
(d) a practitioner who receives a suspension would lose 4 points³ .

The warning letter would be used to address those minor complaints that amount to inappropriate conduct. So, if a practitioner was sent a warning letter nine times during their career history they would face the possibility of losing their practising certificate or being suspended. For practitioners who have received warning letters and have been sanctioned the system would operate for example as follows:

“Lawyer A, since 1983, four cautions (eight points) and five reprimands (fifteen points), for a total of 23 points but never suspended; Lawyer B, since 1987, two warnings (two points), four cautions (eight points), and three reprimands (nine points), for a total of nineteen points, but never suspended; Lawyer C, since 1982, has had four warnings (four points), three cautions (six points), ten reprimands (thirty points) and a six month suspension in 1992 and a three month suspension in 2000 (eight points) for a total of forty-eight (48) “career” points. Somewhere in these records is a possible need for more deterrence than the present system appears to deliver for repeat offenders who do not appear to correct their behaviour.⁴

The conduct outlined above is based on the actual conduct of three practitioners in Arkansas. Obviously the behaviour of the above practitioners is at the extreme, but it is not an unfamiliar scenario for regulators in the United States or in New South Wales.⁵

The different approaches outlined above are indeed food for thought. The OLSC is very interested in seeking your comments about how regulators should deal with ‘frequent fliers’ in the legal profession.

Please send your comments to OLSC@agd.nsw.gov.au

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