INTRODUCTION

3.1 This Chapter seeks to provide some comparative perspectives on the handling of complaints against professionals. We first consider the position with respect to legal practitioners in all of the other Australian states, with special attention to Victoria. The system of handling complaints against lawyers in England (and Wales) is considered next. The question of the regulation and discipline of the legal profession in England has received close attention in the past two decades, with a succession of official inquiries leading to some major legislative changes in recent years. Of particular interest is the establishment of the office of Legal Services Ombudsman in January 1991. The Law Society of England and Wales also has developed some initiatives in this area, including the administrative separation of its complaints-handling function with the establishment of the Solicitors’ Complaints Bureau, the markedly increased use of conciliation, and efforts at prevention of Disputes through a “Client Care” program. The system in the United States receives brief attention, with a particular focus to California, which has created a substantial infrastructure dedicated to the prevention and resolution of lawyer-client problems. Finally, we consider the operation of the Complaints Unit of the New South Wales Department of Health, which has the power to investigate complaints against health care service providers (including doctors) in this State. The Complaints Unit replaces the previous model of professional self-regulation with an independent investigatory agency.

Victoria

The general regulatory regime

3.2 With the enactment of the Legal Profession Practice Act 1891 (Vic) the barristers’ and solicitors’ branches of the legal profession became legally fused in Victoria. The current act, the Legal Profession Practice Act 1958 (Vic), maintains this formal distinction.¹ However, the branches remain quite separate in practice, for a person admitted as a “barrister and solicitor” of the Supreme Court of Victoria must make an election whether they wish to be inscribed on the Roll of barristers or on the Roll of solicitors.

3.3 Consistent with this de facto separation of professions in Victoria, there are also separate complaints systems for solicitors and barristers. Both systems are governed by the Legal Profession Practice Act 1958 (Vic). The Act also provides for the appointment by the Attorney General of a Lay Observer, who is given general powers to oversee the complaints systems operated by the two professional bodies.² The Act specifies that the Lay Observer must not be a legal practitioner. The Lay Observer has the power to examine and investigate, at the request of members of the public, the manner in which a complaint has been dealt with or dismissed by one or a number of the disciplinary bodies created under the Act.³ The Lay Observer has a statutory obligation to report to the Attorney General and to the Law Institute (the Victorian solicitors’ professional body). The Lay Observer is appointed on a part-time basis and only has the support of a part-time secretary. The extent to which the Lay Observer can effectively oversee the two systems and also seek to raise public awareness about the right to complain about the provision of legal services must, as a result, be limited.

3.4 The Law Reform Commission of Victoria is currently reviewing the two complaints systems and has produced a Discussion Paper containing a number of proposals for change,⁴ which are discussed below.

The Law Institute’s complaints system

Statutory authority

3.5 In 1989, an Amendment Act was passed which introduced substantial changes to then existing statutory complaints procedure overseen by the Law Institute.⁵ Prior to the amendment, the Law Institute and the disciplinary bodies had jurisdiction only in respect of actions or omissions which were found to constitute “misconduct”. As well as introducing a new lower level disciplinary offence of “standards breach”, the Law Institute and the newly created Solicitors’ Board (which replaced the Solicitors’ Disciplinary Tribunal) were given the power under the Act to investigate, settle and determine Disputes (including Disputes over bills of costs) between solicitors and their clients involving sums of up to $2500.

Reception of complaints

3.6 The Law Institute is now empowered to receive and deal with two types of complaints: (1) those which relate to the professional conduct of solicitors; and (2) those relating to a Dispute between the solicitor and the client (for example a Dispute over costs), but where there is no issue of professional conduct. The Act provides for a framework for conciliating Disputes, failing which the Secretary of the Law Institute, and the Solicitors’ Board and its Registrar, are given limited power to resolve the matter and award compensation (up to $2500) where appropriate. These bodies have more extensive powers in relation to professional conduct matters.

3.7 Both the Registrar of the Solicitors’ Board and the Secretary (or Executive Director) of the Law Institute are appointed by the Law Institute Council. The Act provides that the Registrar shall be a solicitor or a barrister with at least seven year’s standing.⁶ The Commission understands that the Secretary of the Law Institute is usually legally trained. The Solicitors’ Board is constituted by a chairperson (who must be a Judge (either resigned or retired), appointed by the Attorney General⁷), members of the Law Institute Council, a number of solicitors chosen by the Law Institute Council in accordance with the Act, and a number of lay people (not being practitioners).⁸ For the purposes of a hearing, the Solicitors’ Board is constituted by the chairperson, a solicitor and a lay person.⁹

3.8 Each written complaint received by the Law Institute is classified according to whether it is a Dispute between the complainant and the solicitor (referred to by the Law Institute as a “Dispute”), a matter involving “professional misconduct” or a “standards breach”.

3.9 A “standards breach” is defined in s2A of the Act as meaning:

conduct by a solicitor in a professional capacity which would be regarded by a solicitor in good standing to be unacceptable or unprofessional behaviour and, without limiting the generality of the foregoing, includes -

(a) conduct unbecoming a solicitor;

(b) unprofessional conduct;

(c) a contravention of this Act (other than section 80 or 81), the regulations or the rules without reasonable excuse.

3.10 “Misconduct” covers more serious behaviour. The definition of misconduct in the Act includes a lengthy list of specific examples of misconduct. The examples given include wilful or reckless contraventions of the Act, charging grossly excessive fees or costs, making false statements in the course of conducting a practice, failure to perform work in a way that amounts to a gross breach of duty to a client or to the court, and repeated standards breaches.¹⁰

3.11 A complaint relating to a solicitor’s bill of costs must be lodged within six months of the complainant receiving the bill.¹¹ If the complaint relates to pecuniary loss suffered by the client or any other genuine Dispute, or if the complainant is alleging misconduct or a standards breach, the complainant has six years in which to lodge a complaint.¹² Where the complaint involves misconduct or a standards breach in addition to a Dispute, two files are opened and are dealt with separately by the Law Institute.¹³ In 1990, the Law Institute received 1134 complaints alleging misconduct or a standards breach and 1535 complaints which related to a Dispute between the client and his or her solicitor.¹⁴

Investigation of complaints

3.12 The matter is then investigated by a legal officer employed in the Law Institute’s Professional Standards Department ("the Complaints Solicitor"). The solicitor whose conduct is in question is given 14 days to respond to the complaint. If no response is received a further letter is sent to the solicitor noting that failure to respond within seven days will result in the matter being referred to the Registrar of the Solicitors’ Board. The Commission understands that approximately six matters each month are so referred but that not all such matters proceed to a hearing, as the solicitor often provides the requisite information prior to the hearing. Those matters that do proceed to a hearing tend to result in the solicitor being fined and an order made requiring a response.

Disputes

3.13 If there is no question of a standards breach or misconduct, the Complaints Solicitor, on behalf of the Secretary of the Law Institute, will attempt to negotiate a settlement between the parties if requested. Where the Dispute relates to a solicitor’s bill of costs the complainant must lodge with the Secretary of the Law Institute the amount in Dispute.¹⁵ If the Dispute is resolved at this stage then terms of settlement are drafted by the Secretary of the Law Institute and forwarded to the Registrar of the Solicitors’ Board where formal orders capable of being enforced by the Supreme Court of Victoria are drafted.¹⁶ The Lay Observer notes in her report that of the 1535 Dispute complaints lodged with the Law Institute in 1990, the great majority (64%) were settled by the Complaints Solicitor.¹⁷

3.14 If settlement does not occur then the complaint is referred to the Registrar of the Solicitors’ Board for conciliation.¹⁸ The Act provides for a panel of not less than 15 solicitors to be appointed as conciliators by the Council of the Law Institute.¹⁹ A conciliator is allocated to each matter and organises a conference between the parties. The Lay Observer reports that many of the matters that are referred to the Conciliator are settled. In 1990, 283 Disputes were referred for conciliation. By the end of that year, 207 conferences had been completed. Of these, 138 had resulted in a settlement and 76 matters still awaited determination.²⁰ If in the course of conciliation it appears to the Conciliator that the matter involves a question of misconduct or a standards breach, the matter may be referred to the Secretary of the Law Institute.²¹ The Law Institute has no power to dismiss Disputes (even if they believe a Dispute to be vexatious or frivolous).

3.15 If the complainant does not agree to settle the Dispute at the various conciliation stages, then the Dispute is referred to a Registrar’s hearing.²² Hearings before the Registrar are relatively informal and are held in camera. The complainant usually attends the hearing. Where the complainant is unrepresented, the Law Institute will lead the evidence and cross-examine witnesses on behalf on the complainant. During the course of the hearing points of law and any other matters which may confuse the complainant are explained by the Registrar. At the conclusion of submissions the complainant is again given an opportunity to comment on the proceedings and indicate any matter which he or she feels has not been covered.²³ The Registrar may make such orders as he or she sees fit, including an order that the solicitor pay compensation not exceeding $2500 to the complainant, an order that the solicitor’s costs be reduced, or that a lien be forfeited. The solicitor may also have to pay the costs of the hearing.²⁴ A person “aggrieved” by an order of the Registrar may appeal to the Solicitors’ Board but must do so within 21 days of the Registrar’s order.²⁵

Professional conduct matters

3.16 Where the complaint involves a question of a standards breach or misconduct, the Complaints Solicitor will further investigate and assess the complaint to determine whether there may be a case to answer, whereupon the matter will be referred to the Secretary of the Law Institute. The Law Institute has no power to conciliate or settle complaints which involve allegations of a standards breach or misconduct. If the complaint involves trust funds then an inspector from the Accounting Section of the Law Institute will carry out the investigation. The Secretary of the Law Institute may dismiss the matter (in which case the complainant could seek a review of this decision by the Lay Observer), refer the matter to the Registrar of the Solicitors’ Board or, if the matter is more serious, to the Solicitors’ Board itself. The Secretary also has the power under the Act to cancel, suspend or refuse to grant a practising certificate in certain circumstances.²⁶ In 1990, of the 1134 complaints involving alleged misconduct or standards breaches received by the Law Institute, 83 (7.3%) were referred for further action to the Registrar of the Solicitors’ Board or the Solicitors’ Board.²⁷

Hearings by the Registrar

3.17 The Registrar of the Solicitors’ Board generally hears those matters which are considered by the Secretary of the Law Institute to be less serious. When the Registrar finds that there has been a standards breach he has the power to make a number of orders including: that no further action be taken; that the solicitor be reprimanded; that the solicitor undertake a course of further education, management or accounting; that the solicitor’s practice be supervised, or that the solicitor not employ a specified person.²⁸ The Registrar of the Solicitors’ Board may also make an order as to payment of costs. Where the solicitor has been found guilty of misconduct, in addition to the above powers the Registrar may impose a fine of up to ten penalty units.²⁹

3.18 In 1990, the Registrar heard 44 matters. In most of these matters the Registrar found against the solicitor with the usual form of punishment consisting of a fine and/or a reprimand. In a small number of cases the orders made by the Registrar included an order that the solicitor seek management advice.³⁰

Solicitors’ Board hearings

3.19 The Solicitors’ Board hears appeals from decisions of the Registrar. In addition, the Solicitors’ Board hears in the first instance matters involving more serious conduct, including those where misconduct is alleged. Hearings are generally held in public. Where the Solicitors’ Board finds that the solicitor has committed a standards breach or is guilty of misconduct, it has the same powers as the Registrar but may impose a fine of up to 50 penalty units for misconduct and may make an order that varies, cancels, restricts or suspends for any period a solicitor’s practising certificate or an order that requires the solicitor not practise as a barrister.³¹

3.20 The 1990 Lay Observer’s Report³² gives details of the 33 matters heard by the Solicitors’ Board in that year where the solicitor was found guilty of misconduct and a penalty imposed. These matters concerned conduct including misappropriation of funds, knowingly making a false statement and gross breach of duty to a client. In most cases the solicitor was reprimanded or fined. In nine cases, the Solicitors’ Board deferred, suspended, restricted or cancelled the solicitor’s practising certificate.

Rights of appeal

3.21 An appeal may be taken to the Supreme Court from a decision of the Solicitors’ Board by the solicitor where his or her right to practise has been affected.³³ Where the Board’s hearing was not an appeal from a decision of the Registrar “a person aggrieved” also has the right to appeal to the Supreme Court.³⁴

Continuing assessment

3.22 It is worthwhile noting that the Law Institute of Victoria publishes a Professional Standards Report twice a year. This Report contains a summary of the regulatory activities that have taken place in the preceding six months. This report is forwarded by the Law Institute to state and federal members of parliament, all major media outlets, consumer organisations, community legal centres and anyone who requests a copy.

3.23 In addition to the publication of this regular report, in June 1990, the Registrar of the Solicitors’ Board circulated a detailed questionnaire in relation to those Disputes that had been received by the Law Institute (as at 15 June 1990) and subsequently dealt with by the Law Institute, a conciliator or referred to the Registrar of the Solicitors’ Board or the Solicitors’ Board.³⁵ Both complainants and the solicitors involved were asked a number of questions aimed at assessing the level of satisfaction with the system. The Commission understands that the Solicitors’ Board intends to continue this practice.

3.24 Three questionnaires were prepared by the Solicitors’ Board corresponding to those Disputes which were (a) settled at the Law Institute stage, (b) settled with the aid of a conciliator, and (c) referred to the Registrar or the Solicitors’ Board. The parties to 147 Disputes were forwarded questionnaires. Seventy-two complainants and seventy-four solicitors completed and returned the questionnaire. The results indicate that at each of the three stages the majority of complainants and solicitors who replied to the questionnaire were satisfied with the Law Institute’s initial handling of the complaint.³⁶

3.25 In those Disputes in which settlement was reached between the parties with the aid of a conciliator, the majority of complainants and solicitors were satisfied with the way the conciliator conducted the conference and the result achieved.³⁷ Where matters had been referred to the Registrar of the Solicitors’ Board or the Solicitors’ Board the majority of complainants and solicitors were of the opinion that the hearing before the Registrar or the Board was easy to follow and was long enough to allow their arguments to be fully considered. However a greater number of complainants compared to solicitors thought that the hearing was conducted fairly.³⁸

3.26 All complainants and solicitors were asked whether they were satisfied with the final result achieved. Only five of the 72 complainants who responded advised that they were “not satisfied”. Ten of the 74 solicitors responded similarly. Thirty-three complainants and forty-two solicitors replied that they were “very satisfied” or “satisfied”. Another 29 complainants and 23 solicitors advised that “they would accept the result although not entirely satisfied”.³⁹

Law Institute’s response to reform proposals

3.27 In its response to the Victorian Law Reform Commission’s Discussion Paper on the Accountability of the Professions,⁴⁰ the Law Institute noted that it had approached the Standards Association of Australia and requested their assistance in the development of an objective standard which could be applied to all complaints-handling bodies.⁴¹ It was hoped that this could the be used to assess and compare the effectiveness of such bodies. However, the Law Institute was advised by the Standards Association of Australia that before a standard could be developed the consent of the other professional bodies was required. The Commission understands that the professional bodies of the other states do not wish to pursue this course of action and therefore have not given their consent.

The Victorian Bar Council’s complaints system

Statutory authority

3.28 Part IIA of the Legal Profession Practice Act 1958 (Vic) creates a complaints system under which the executive of the Victorian barristers’ professional body (the Victorian Bar Council) deals with complaints made against barristers. The Bar Council’s system differs from that of the Law Institute in that the Bar Council only has power to investigate complaints and consider awarding compensation where the complainant alleges “a disciplinary offence” has been committed. The Bar Council does not have the jurisdiction to review complaints where the conduct alleged is not within the definition of a “disciplinary offence”.

3.29 Section 14B of the Act provides that a barrister commits a disciplinary offence if he or she:

a) is guilty of professional misconduct:

b) is guilty of improper conduct in a professional respect;

c) infringes a rule made and published by the Victorian Bar Council on a matter of professional conduct or practice; or

d) is guilty of any other conduct for which a barrister could be struck off the roll of practitioners kept by the Supreme Court.⁴²

Reception and investigation of complaints

3.30 The Act provides that complaints about the conduct of barristers are to be made in writing to the Chairman of the Bar Council.⁴³ The Chairman must then refer each complaint to the Ethics Committee. The Ethics Committee consists of a panel of barristers appointed by the Bar Council. The Ethics Committee then undertakes a preliminary investigation of the complaint.⁴⁴ The Ethics Committee generally forwards a copy of the complaint to the barrister and requires a response within 14 days. The Committee also seeks information from other relevant parties, such as judges and instructing solicitors.

3.31 The Commission understands from its discussions with the Victorian Bar Council that the Bar considers that the most appropriate forum for the resolution of complaints relating to negligence is the civil court system. However, where conduct is such that it amounts to gross negligence, disciplinary action would be considered.

3.32 If the Ethics Committee is of the opinion that a barrister has committed a disciplinary offence, it may decide to take no further action, deal with the matter summarily (subject to the barrister’s consent) or lay a charge before the Barristers Disciplinary Tribunal (the “Bar Tribunal”).⁴⁵ If the Committee dismisses the matter the complainant is advised of the possibility of a review by the Lay Observer.

Summary hearings

3.33 If the Ethics Committee deals with a matter summarily and finds that the barrister has committed a disciplinary offence it has the power to order that:

a) no further action be taken;

b) the Chairman of the Ethics Committee give the barrister such advice or express such views as the Ethics Committee thinks appropriate;

c) the barrister be reprimanded, admonished, cautioned or counselled;

d) the barrister pay a fine of up to ten penalty units;

e) the barrister be suspended for not more than three months; or

f) the barrister pay compensation of up to $3000 if the complainant has suffered loss as a result of the barrister committing the disciplinary offence.⁴⁶

Rights of appeal

3.35 If the barrister is dissatisfied with the Board’s determination then he or she can appeal to the Bar Tribunal.⁵¹ A dissatisfied complainant may make a further complaint to the Lay Observer.⁵² The Bar Tribunal is constituted by a chairman (a Judge or former Judge), three barristers (two being Queen’s Counsel) and a lay member.⁵³ If the Bar Tribunal is hearing an appeal from a decision of the Ethics Committee upon a summary hearing it has the same powers as the Ethics Committee.⁵⁴

Hearings before the Tribunal

3.36 Hearings before the Bar Tribunal of any appeal or charge are normally heard in public, unless the Tribunal is satisfied that the interests of justice require otherwise.⁵⁵ The Act also provides for certain sections of the Evidence Act 1958 (Vic) to apply to hearings of the Tribunal.⁵⁶

3.37 Where the Bar Tribunal hears a matter which originated from a charge laid by the Ethics Committee and determines that the barrister has committed a disciplinary offence, it has further disciplinary powers.⁵⁷ The Bar Tribunal may order a greater fine (up to 50 penalty points) and may suspend the barrister for such time as it finds appropriate. In addition the Bar Tribunal may order that the barrister’s name be struck off the Roll. The barrister may be required to pay the expenses incurred by the Bar Tribunal in connection with the proceedings. The Bar Tribunal may also order that the particulars of the Bar Tribunal proceedings be published in the Annual Report of the Bar Council.

3.38 The Act provides that a “party aggrieved” by an order of the Bar Tribunal may appeal to the Full Court of the Supreme Court of Victoria.⁵⁸ The appeal must be instituted within one month of the Bar Tribunal’s order.⁵⁹ A complainant dissatisfied with the decision may make a further complaint to the Lay Observer.⁶⁰

3.39 In 1990, the Bar Council received 42 complaints. These, plus 14 from the preceding year, were dealt with as follows: 32 matters were dismissed; 11 were subject to a summary hearing; three were listed for hearing before the Bar Tribunal; and ten were still under investigation at the end of the year.⁶¹ In the summary hearings, nine barristers were found guilty of a disciplinary offence, one charge was dismissed and one charge was withdrawn by the complainant.⁶² Only one matter was actually heard by the Bar Tribunal in 1990, with the Tribunal upholding the complaint. The barrister involved was reprimanded and ordered to pay costs.

The Lay Observer

Complaints about solicitors

3.40 The Lay Observer is an independent statutory office holder appointed by the Attorney General. The appointment is made on a part-time basis, and the appointee may not be a lawyer. Where a complaint about a solicitor has been dismissed or where the complainant is dissatisfied with the way the matter was handled, the complainant may lodge a further complaint with the Lay Observer. The Lay Observer has the power to reinvestigate the matter and if appropriate to make recommendations to the Law Institute and the Attorney General.⁶³ The Lay Observer has power under the Act to obtain such information he or she requires from the Law Institute, the Law Institute Council (or any member of it), the Secretary of the Law Institute, the Registrar of the Solicitors’ Board and the Solicitors’ Board.

3.41 The Commission understands that currently most of the investigative work is undertaken by the Lay Observer herself. Such work would normally involve obtaining further information from the complainant and the relevant arm of the profession. When the Lay Observer is of the opinion that further investigative work is required in relation to a particular complaint the Lay Observer would usually request such work be undertaken by the Complaints Solicitor. The part-time Lay Observer simply does not have the time or resources to undertake a further lengthy and involved investigation herself.

3.42 After investigating the matter, the Lay Observer generally chooses one of five courses of action:⁶⁴

a) negotiating with the solicitor whose conduct was the subject of the complaint;

b) referring the complaint back to the Law Institute and recommending that the matter be re-examined;

c) recommending to the complainant that he or she seek further legal advice about commencing civil legal proceedings against the solicitor;

d) referring the complainant to another government department or statutory agency; or

e) dismissing the complaint (with reasons provided).

Complaints about barristers

3.43 In respect of services provided by a barrister, any person may complain to the Lay Observer about the dismissal of the complaint by the Bar Council, the Ethics Committee or the Bar Tribunal, or generally about the manner in which their complaint was dealt with by those bodies. The Lay Observer’s powers and procedures in relation to barristers are parallel to those in relation to solicitors. After making an independent assessment of the complaint the Lay Observer may redirect the complaint back to the Ethics Committee for further examination, or may dismiss the complaint.⁶⁵

Educational role

3.44 In addition to investigating complaints, the Lay Observer regularly attends meetings of both the Law Institute and Bar Council’s Ethics Committees, addresses community groups and organisations on the role of the Lay Observer, and participates in a variety of other educational events. The Lay Observer also attends many of the meetings of the Registrar of the Solicitors’ Board, Solicitors’ Board hearings, and many of the summary hearings of the Bar Council’s Ethics Committee.⁶⁶

Statistics

3.45 During 1990, the Lay Observer received 202 formal complaints, and 77 complaints from the previous year also were dealt with. The outcomes of the investigations included: 136 complaints were dismissed, 15 complaints were referred for conciliation, 12 were referred to private practice or a community legal centre for legal advice, 14 refunds or reductions in costs were recommended; ten payments from the discretionary fund were recommended; 19 matters were referred to government departments or other agencies; eight matters were sent to the Law Institute for further action; and three matters were referred to the Ethics Committee.⁶⁷

Some strengths of the Victorian system

3.46 The Commission has considered it worthwhile to examine the complaints system in Victoria (particularly with respect to solicitors) as it is similar to the system operating in New South Wales, albeit with a number of variations. It is the Commission’s view that these variations make the system more effective in that the mechanisms in place allow for the resolution of a greater number of Disputes between clients and their solicitors. The Victorian system is now oriented more towards achieving the client’s satisfaction. The Commission considers the following aspects of the Law Institute’s complaints system to be the key strengths of that system:

• The expanded jurisdiction of the Law Institute and disciplinary bodies allows resolution of complaints not involving a standards breach or professional misconduct.
• The complainant has access to a cheap and accessible forum for the resolution of complaints and Disputes not involving a standards breach or misconduct.
• Complainants and their solicitors can now settle their disagreements (where there is no standards breach or misconduct) with the aid of a trained conciliator.
• The complainant has the ability to obtain relief (often in the form of compensation) in relation to services provided by a solicitor even where no allegation of misconduct or standards breach is made (eg, reduction of a solicitor’s bill of costs).
• The Law Institute undertakes an assessment of the complaints system every six months. The Solicitors’ Board intends to undertake regular surveys in order to assess whether those using the system are satisfied with the way complaints are being handled.

3.47 The Law Institute can now deal with a wide range of complaints. In addition there is now the opportunity of bringing the solicitor and the dissatisfied client together in an environment where the client can voice his or her concerns about the solicitor’s conduct. A criticism of the complaints system, commonly levelled by solicitors whose conduct has been the subject of a complaint, is that the whole procedure appears to be designed to extract a settlement or compromise from the solicitor regardless of whether or not fault exists on the part of the solicitor.⁶⁸

3.48 It is the Commission’s understanding that this approach has been adopted intentionally by the drafters of the legislation, the Professional Standards Department of the Law Institute and the Lay Observer, with a view to counteracting the perceived high level of public dissatisfaction and frustration with the legal profession. The complaints system has been deliberately oriented towards obtaining the satisfaction of the complainant in an effort to dispel the public’s belief that the Law Institute “protects its own”.

The Victorian Law Reform Commission’s proposals

3.49 The Victorian Law Reform Commission is currently undertaking a review of complaint systems in that state and has put forward the following proposals (which are not yet recommendations) in a Discussion Paper:⁶⁹

• That an independent Legal Practice Board and Registrar be established to take over the Dispute resolution and disciplinary functions now handled by the Law Institute of Victoria and the Bar Council. The Solicitors’ Board and its Registrar should also take over the taxation of client-lawyer bills of costs from the Courts.
• The Bar Council and the Law Institute of Victoria collaborate on publishing a common Code of Professional Conduct.
• The Legal Profession Practice Act 1958 (Vic) be amended to remove the immunity of advocates from liability for negligent “in-court” work.⁷⁰

3.50 Both the Law Institute and the Bar Council are opposed to the first proposal and consider it to be misconceived: the Law Institute because “it does not take account of the improvements which have occurred since the 1989 amendments to the Legal Profession Practice Act”;⁷¹ the Bar Council because, in its view, the current system is working well and that the proposed new structure would be unwieldy, inexpert and costly.⁷²

3.51 The second proposal received the support of the Law Institute on the understanding that the proposed code would be no more restrictive than the current restraints imposed on Victorian solicitors and that it could be readily adapted to meet changing demands in the future.⁷³ The Bar Council is of the opinion that a unified code of conduct would be inappropriate to barristers as the two professions have inherently different functions.⁷⁴

3.52 The Law Reform Commission’s third proposal is supported by the Law Institute⁷⁵ but not by the Bar Council which notes that the immunity does not result from any rule or practice of the Bar but is the result of considered decisions of the House of Lords and the High Court of Australia.⁷⁶

OTHER AUSTRALIAN JURISDICTIONS

South Australia

The present system

3.53 The Legal Practitioners Act 1981 (SA) (“the Act”) regulates the practice of the law in South Australia. Under the Act, every practitioner is admitted and enrolled as a barrister and solicitor of the Supreme Court.⁷⁷ However, a separate bar emerged in the 1960s, and in October 1990, there were approximately 100 members of the voluntary Bar Association, who had undertaken to practise only in the manner of a barrister.⁷⁸

3.54 All complaints concerning members of the legal profession are directed to the Legal Practitioners Complaints Committee (“the “Complaints Committee”) established by the Act. Although the Bar Association is empowered to deal with complaints about lawyers who practise exclusively as barristers, as a matter of course all complaints are referred to the Complaints Committee. The Act also establishes the Legal Practitioners Disciplinary Tribunal (“the Tribunal”). The Complaints Committee consists of seven members, of which at least three are required to be non-practitioners. The functions of the Complaints Committee are set out in s74(1):

(a) to receive, consider and investigate complaints of unprofessional conduct against legal practitioners;

(b) where the subject matter of a complaint is, in the opinion of the Committee, capable of resolution by conciliation - to attempt to resolve the matter by conciliation;

(c) where, in the opinion of the Committee, a complaint has substance but may be adequately dealt with by admonishing the legal practitioner against whom the complaint was made- to admonish the legal practitioner accordingly;

(d) to lay charges of unprofessional conduct before the Tribunal.

3.55 “Unprofessional conduct” is defined in the Act to include an illegal act of any kind committed in the course of his (or her) practice by the legal practitioner and any offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by prison is prescribed by law.⁷⁹ In practice, however, the Complaints Committee takes the view that this definition is not comprehensive and has regard to the common law. The Complaints Committee has no jurisdiction to investigate the alleged negligence of a legal practitioner or to determine whether a practitioner has overcharged. Examples of the type of conduct that the Complaints Committee will investigate include allegations of unreasonable delay, failure to account, breach of confidentiality and conflict of interest.

3.56 The principal powers of the Complaints Committee are conciliation, admonition and, where appropriate, laying charges before the Tribunal. Where the Complaints Committee admonishes a practitioner a copy of the admonition is forwarded to the Law Society and the Attorney General. Copies of the admonition are not made public. The Complaints Committee is not able to order a legal practitioner to pay compensation or damages.

3.57 The Tribunal has twelve members, all of whom are legal practitioners.⁸⁰ For the purposes of conducting a hearing, the Tribunal is comprised of a panel of three of its members.⁸¹ Upon a finding of unprofessional conduct by the Tribunal, the Tribunal may: reprimand the legal practitioner; order the practitioner to pay a fine; suspend the right of the practitioner to practise for a period not exceeding three months; stipulate conditions to a practitioners practise of the profession of the law; or recommend disciplinary proceedings be commenced against the legal practitioner in the Supreme Court. Only the Supreme Court may order that a practitioner’s name be struck off the Roll.

3.58 The Act also creates the office of the Lay Observer.⁸² The Lay Observer is directly appointed by the Attorney General. A complainant who is dissatisfied with the Complaint Committee’s investigations or the proceedings and decision of the Tribunal may make representations to the Lay Observer. The Lay Observer does not reinvestigate the complaint but may call for further investigation by the Complaints Committee if it is believed that members have not properly carried out their duties.

3.59 The Lay Observer is entitled to be present at proceedings of the Committee or Tribunal. Any aspect of the proceedings may form the basis of a report by the Lay Observer to the Attorney General. There is, however, no general obligation to furnish reports and it is the practice of the present Lay Observer not to prepare any. The present Lay Observer has held the office on a part-time basis for the last nine years. In that time the Lay Observer has disagreed with the decision of the Law Society in only two or three cases.

Government proposals for reform

3.60 In October 1990, the Policy and Research Division of the South Australian Attorney General’s Department prepared a Green Paper on the Legal Profession. The Green Paper covered a number of different areas, but for the purposes of this reference two areas in particular are of interest.

3.61 Inadequate information about legal procedures was identified as one of the major sources of client complaint. The Green Paper proposes that practitioners should ensure that their clients receive a pamphlet or letter of general information at the initial interview, detailing the steps necessary for the resolution of the matter, how long each step might take, and the likely prospects of success, all of which would enable the client to provide more informed instructions to the solicitor. Brief letters should be sent periodically to the client to advise on the progress of the matter and any factors which have affected the initial advice as to success.⁸³ The Green Paper also proposes that practitioners should be obliged to provide more information to the client in respect of costs and that this information should be supplied before formal instructions are received.⁸⁴

3.62 The Green Paper invites submissions in relation to the merits of creating an advisory committee in the nature of a Public Council on Legal Services, similar to that previously recommended by this Commission. The principal role of such a body would be to act as a review and advisory body in relation to the regulation of the profession and the delivery of legal services.⁸⁵ A report following up on the issues raised by the Green Paper is expected to be tabled in the latter half of 1992 by the South Australian Attorney General.

Queensland

Solicitors

3.63 Complaints against solicitors are made to the Queensland Law Society. The Queensland Law Society Act 1952 (Qld) sets up the Statutory Committee of the Law Society and the Solicitors Disciplinary Tribunal, for the purpose of hearing charges of professional misconduct, or unprofessional conduct or practice, on the part of practitioners.⁸⁶ The Act does not define professional misconduct or unprofessional conduct, so resort must be had to the common law.

3.64 Complaints alleging failure to account, dishonesty, unreasonable delay or neglect, or conflict of interest, are examples of the type of complaint that will be considered by the Law Society. The Law Society does not have authority to resolve Disputes about costs between solicitor and client. There is no power to award compensation to the complainant.

3.65 Complaints are received for initial assessment by the director of the Professional Conduct Department of the Law Society, who will then allocate the complaint to one of the staff of the Professional Conduct Department. Currently there are four solicitors and two complaints officers dealing with complaints. The Professional Conduct Department has responsibility for trust account inspections, audits, receiverships and Fidelity Fund matters in addition to complaints. The total number of staff in the Department is approximately 20.

3.66 If, upon investigation, the complaint discloses a prima facie case of professional misconduct or unprofessional conduct, the complaint is referred to the Professional Conduct Committee. It is the responsibility of the Professional Conduct Committee to then refer major matters to the Statutory Committee and minor matters to the Tribunal. The Statutory Committee has no lay membership,⁸⁷ although three of the twelve persons constituting the Solicitor’s Disciplinary Tribunal are lay persons.⁸⁸ Powers available to the Tribunal include censuring the practitioner, imposing a fine (not exceeding $5000), requiring that the practitioner make available particular documents for inspection, requiring the practitioner to make reports on his practice, requiring the practitioner to undertake a course of further education, or referring the matter to the Statutory Committee.⁸⁹

3.67 Upon a finding that a practitioner is guilty of malpractice, professional misconduct or unprofessional conduct, the Statutory Committee has power to impose a fine, strike the practitioner off the Roll or suspend him or her from practice. Where the Committee does not strike the practitioner off the Roll the Committee may censure the practitioner and/or make one or more of those orders available to the Tribunal as set out above.⁹⁰

3.68 In the latter half of 1991, the Law Society implemented a mediation process to assist in the resolution of solicitor-client Disputes or misunderstandings. This program utilises the services of Law Society-approved mediators. Both parties to the mediation process are required to sign a confidentiality agreement to ensure that they will remain free to pursue their legal rights further if they wish.⁹¹

3.69 For the period 1 July 1990 to 30 June 1991, the Professional Conduct Department received 648 written complaints. In that same period the Statutory Committee ordered that four practitioners be struck off, one be suspended and two be fined. The Disciplinary Tribunal imposed two fines, made one order of “no future employment”, and ordered one censure.⁹²

3.70 A Lay Observer has been appointed in Queensland to monitor written complaints received by the Law Society. Where necessary, and in order to fulfil this monitoring role, the Lay Observer may investigate, examine and make reports and recommendations to the Attorney General and to the Law Society.⁹³ The Lay Observer is permitted to (and in practice generally does) attend any meeting and take part in the deliberations of the Law Society Council, the Professional Conduct Committee, the Statutory Committee and the Tribunal.

Barristers

3.71 The Queensland Bar Association has failed to provide any details about its complaints-handling procedures despite numerous requests from the Commission.

Western Australia

3.72 Western Australia has a fused legal profession, although a small separate, voluntary Bar has emerged. Most members of the Perth Bar remain members of the Law Society.⁹⁴ The Legal Practitioners Act 1893 (WA) vests statutory authority over the admission and discipline of all legal practitioners in the Barristers’ Board.⁹⁵ Complainants in Western Australia may approach either the Law Society or the Barristers’ Board.

The Law Society

3.73 The Law Society has very limited powers. Complaints sent to the Law Society are reviewed at first instance by a Legal Officer. Depending upon the subject matter of the complaint, the Legal Officer may be able to resolve the Dispute immediately by means of a telephone call to the legal practitioner concerned. Alternatively, the Legal Officer might form the view that the complaint is of such a serious nature that it should be referred immediately to the Barristers Board. Other complaints will be referred to either the Professional Conduct Committee or the Ethics Committee of the Law Society. These Committees of the Law Society may find that the complaint is unjustified or they might refer the matter to the Council of the Law Society recommending that the Council reprimand the practitioner. The Committees also may refer the matter to the Barristers Board.

3.74 The only sanction available to the Law Society is a reprimand and the Law Society has no powers of investigation. The consequence of this latter limitation is made apparent in the following situation. In relation to each complaint received the Law Society will seek the response of the practitioner concerned. The complainant is then entitled to reply to the practitioner’s response. If, however, there is a conflict between the views expressed by the parties, the Law Society is not in a position to resolve the conflict.

3.75 For the period 16 October 1990 to 16 October 1991, the Law Society received 51 complaints against practitioners, the majority against sole practitioners. Delay and cost complaints were the two matters most complained about. For that period no complaints were referred to the Board for investigation or information. Two reprimands were issued and no action was taken by the Law Society in relation to 38 of the complaints.⁹⁶

The Barristers’ Board

3.76 The Barristers Board is comprised of the Attorney General, the Solicitor General, all resident Queen’s Counsel, and nine annually-elected legal practitioners of at least three year’s standing. Pursuant to the Legal Practitioners Act 1893 (WA) the Board has power to investigate complaints of alleged illegal or unprofessional conduct or any neglect or undue delay in the conduct of the client’s business.⁹⁷ The disciplinary powers of the Board are invoked only where a practitioner’s conduct raises an issue as to the practitioner’s fitness to practice, or reveals a serious departure from proper professional conduct. The disciplinary powers of the Board do not extend to cases of negligence. Such cases are to be dealt with by private proceedings brought against the practitioner by the client. The Board has no power to award damages.

3.77 A complainant may choose to proceed against a practitioner formally or informally. An informal complaint may be made to the Board orally although it is preferred that complaints be made in writing. A copy of the complaint or a summary of the oral complaint is forwarded to the practitioner involved for a response. This response is then sent to the complainant for further comment unless the practitioner expressly refuses permission to do so. The Board takes the view that where the practitioner has refused permission, it is unable to forward the response to the complainant. In the course of considering the matter the Board will on occasion require further information from the complainant or practitioner, and will sometimes examine the practitioner’s file or check court records or other official records relevant to the complaint. At the conclusion of its investigation the Board may: adopt the formal complaint and take formal disciplinary proceedings against the practitioner; take no further action; conduct a formal inquiry if the full facts were not obtained during the informal inquiry; or decide against bringing formal proceedings but remind the complainant that a formal complaint may be made.

3.78 In practice, the basis of a large number of complaints to the Board is uncertainty or misunderstanding by the client or a lack of communication by the practitioner and can be dealt with during the initial telephone call or interview. Others Disputes require no more than a telephone call to the practitioner by the Secretary to clarify the position. For the year ended 30 June 1991, the Board estimated it received approximately 1,000 verbal complaints or enquiries. The Board received 269 written complaints or enquiries from members of the public. A further 15 matters were drawn to the Board’s attention by other sources. Formal complaints were issued against 22 legal practitioners at the Board’s direction during the year.

3.79 In addition to the Board’s power to institute formal disciplinary proceedings against a practitioner, formal complaints may be sworn by an interested party or by the Law Society. The complainant may make a formal complaint to the Board either at first instance or upon information that the Board does not intend taking the matter any further. However, where a formal complaint is lodged by the complainant, the complainant (generally by his or her legal representative) is responsible for bringing the prosecution and thus adducing the evidence to prove the allegation. The complainant also bears the costs of the practitioner’s defence if he or she fails to prove the breach alleged. During the year ending 30 June 1991 no formal complaints of this nature were made.

3.80 The penalties which may be exacted against a practitioner found guilty of misconduct⁹⁸ following a formal complaint brought either by the Board’s Secretary or a complainant include: a reprimand; a fine up to $10, 000; or a suspension from practising law for a period of up to 2 years. In addition the Board may report the practitioner to the Supreme Court, which may order that the practitioner’s name be struck off the Roll of Legal Practitioners.⁹⁹

3.81 During the year ending 30 June 1991, the Board conducted 16 hearings of formal complaints. The Board heard 28 allegations of unprofessional conduct, three allegations of neglect and undue delay and one allegation of illegal and/or unprofessional conduct. The allegations were dismissed in five instances, the decision was reserved in two, in another two no order was made, and the remainder were proved. The type of conduct found to constitute unprofessional conduct included failing to respond to correspondence, misleading a client about the progress of a court action, overcharging, improperly securing a costs agreement that was champertous and being under the influence of alcohol in the presence of clients.¹⁰⁰

3.82 The Barristers’ Board has a policy of making available to the media information concerning all proceedings which result in a practitioner being suspended from practice. In addition, practitioners are kept aware of the nature and result of disciplinary hearings and of matters of importance that arise from hearings from articles appearing in the Law Society’s publication.

Government proposals for reform

3.83 The Legal Practitioners Amendment (Disciplinary Provisions) Bill was tabled in Parliament for public comment in December 1991. This Bill proposes substantial changes to the current complaints procedure. The Bill would establish a Complaints Committee, a Legal Practitioners Disciplinary Tribunal, a Law Complaints Officer and, without making substantive alterations to its composition, the Barristers’ Board would be renamed the Legal Practice Board. The nature of the conduct subject to review by the Board is unchanged by the Bill. Under the proposed regime written complaints, and in some cases oral complaints, will be made to the Complaints Committee or the Law Complaints Officer. The Bill clearly sets out the persons and bodies entitled to make a complaint. The expanded role of the Board in relation to the professional conduct of a practitioner is reflected in the heading to part IV whereby “Professional Conduct and Discipline” is substituted for “Suspension and Striking Off the Roll”.

3.84 The Complaints Committee would be given numerous functions apart from receiving and inquiring into complaints. In particular the Complaints Committee would be under a statutory obligation to conciliate between a practitioner and a complainant or refer the matter for conciliation, where it would be appropriate to do so. In addition, the Complaints Committee would be given a summary disciplinary jurisdiction (exercisable only with the consent of the practitioner). Other proposed functions of the Complaints Committee include: instituting proceedings against a practitioner before the Tribunal or Supreme Court; supervising the Law Complaints Officer; and commenting on and making recommendations in respect of the Act (ie the Legal Practitioners Act as amended).

3.85 In the exercise of its summary disciplinary jurisdiction, it is proposed that the Complaints Committee will have the following powers upon a finding that the practitioner has been guilty of illegal conduct, unprofessional conduct or neglect or undue delay in the course of legal practice: order the practitioner to pay to the Board a fine not exceeding $500; reprimand the practitioner; order that the practitioner seek and implement advice concerning the management and conduct of the practice; or order that the practitioner reduce or refund any fees, charges or disbursements; order that the practitioner pay costs in relation to the complaint. This latter penalty may be imposed notwithstanding the fact that no finding was made against the practitioner, provided that the Complaints Committee is of the opinion that the conduct of the practitioner gave reasonable cause for the inquiry.

3.86 With the exception of the summary professional disciplinary jurisdiction, all functions of the Complaints Committee would be exercisable by the Law Complaints Officer. The Law Complaints Officer is to be a legal practitioner with experience in the conduct of a legal practice. The Law Complaints Officer will be responsible for notifying in writing the complainant and practitioner of the Complaints Committee’s decision to neither deal with the complaint summarily nor refer the matter to the Tribunal for determination. This notification is to include reasons for the determination.

3.87 The proposed Disciplinary Tribunal will hear and determine all matters arising out of complaints referred to it. All the powers of the Supreme Court as are necessary for the carrying out of this function will be available to the Tribunal. As a general rule, proceedings before the Tribunal will not be public. The Tribunal will be given an extensive armoury of sanctions, including the power to: make and transmit a report to the Full Court; suspend the practitioner from practice for up to two years or until such time as the problem or disability suffered by the practitioner has been overcome; impose conditions on the practitioner’s right to practice; require the practitioner to take advice in relation to the management of the practice; impose a fine in respect of each allegation proved; reprimand the practitioner; direct that the practitioner either undertake further work for the client at an amount for costs and charges determined by the Board, or pay for further work to be done by another practitioner or reduce or refund the amount of any fees, charges or disbursements; order that money owing to the complainant be paid to the Board; or order the payment of compensation where the conduct of the practitioner has caused the complainant to suffer pecuniary loss. The capacity for the Tribunal to order compensation is subject to numerous conditions, qualifications and limitations. An appeal may be made against any finding or order of the Tribunal to the Full Court.

3.88 The proposed legislation makes provision for some lay participation in the complaints procedure. The Complaints Committee is to have two members whose function is to act as the representatives of the community and the Tribunal is to have one. The “community representatives”, who are to be appointed by the Attorney General after consultation with the Minister responsible for Consumer Affairs, do not have a vote on any question with respect to a judicial decision in the exercise of disciplinary jurisdiction, but may otherwise participate fully in any meeting. The lay members may also report independently to the Attorney General on any aspect of a complaint, any inquiry or hearing, rules made under the Act, or on the activities or proceedings of the Law Complaints Officer, the Complaints Committee or the Disciplinary Tribunal.

3.89 The draft legislation does not propose any form of external review, along the lines of a Lay Observer. However a complainant aggrieved by the Complaints Committee determination will be empowered to initiate proceedings against the practitioner before the Disciplinary Tribunal. Proceedings may be initiated unless the Complaints Committee has specifically determined the complaint to be trivial, frivolous, vexatious, unreasonable, relating to conduct too remote in time, or a matter in which the complainant does not have a sufficient interest. Where a complainant does initiate proceedings before the Tribunal the complainant risks having a costs order made against him or her, if no finding is made against the practitioner.

3.90 The Western Australian Attorney General’s Department has advised the Commission that it anticipates that the Legal Practitioners Amendment (Disciplinary Provisions) Bill will become law in 1992. Amendments to the Bill are likely as a consequence of the submissions received.

Tasmania

3.91 Tasmania is also a fused jurisdiction in which a small, voluntary Bar has emerged. The Tasmanian Law Society has the power to investigate and proceed against any practitioner under the Legal Practitioners Act 1959 (Tas) and the Law Society Act 1962 (Tas).

3.92 As there is no statutory definition of professional misconduct, the Law Society applies the common law. Rules of Practice were made in 1977, pursuant to s14 of the Law Society Act 1962, regulating various aspects of legal practice.¹⁰¹ Rule 5 specifically requires a practitioner to do his or her best to complete any business entrusted to him or her within a reasonable time. Rule 6 requires a practitioner to render a bill of costs within a reasonable time after being requested in writing by a client to do so. Rule 7 empowers the Council of the Law Society, acting on its own motion or on a written complaint, to require practitioners to furnish the Council with a full and accurate account of his or her conduct in relation to any matter relating to his or her practice.

3.93 The Executive Director of the Law Society acts as a filter for incoming complaints and has a wide discretion in relation to them, including the power to dismiss complaints which are frivolous or vexatious. The type of matters which the Law Society can investigate must raise issues of professional misconduct. This has been taken to include a failure to account for moneys held on a client’s behalf, persistent delay in answering correspondence and breach of confidentiality, but does not extend to allegations of negligence. Complainants alleging negligence are advised to contact another solicitor about the possibility of commencing a civil action. If the conduct complained of does not constitute professional misconduct but nonetheless is of a standard which falls short of that which may be expected of a practitioner, an informal presidential reprimand may be issued to the practitioner.¹⁰² No statistics on complaints are maintained by the Law Society of Tasmania.

3.94 The Law Society Act 1962 establishes the Disciplinary Committee, consisting of five members of the Law Society. Depending on the seriousness of the issues raised in a complaint, the Law Society may refer the matter to the Disciplinary Committee or the Supreme Court. Generally the Supreme Court will be referred defalcation matters, those matters where the practitioner has prior convictions before the Disciplinary Committee, or where the penalty involved is likely to be striking off the Roll of practitioners.

3.95 The Disciplinary Committee has no power to order compensation for the complainant. Powers are confined to imposition of a fine, suspension or withdrawal of the solicitor’s right to practice. An appeal against an order of the Disciplinary Committee may be made to the Supreme Court.¹⁰³

3.96 A new Legal Practitioners Bill to replace the current Legal Practitioners Act and the Law Society Act has been drafted. The Bill makes substantial amendments to the disciplinary procedure and the Commission understands that provision is made in the Bill for the appointment of a Lay Observer. At present there is no provision for lay participation in the complaints procedures. The new Legal Practitioners Bill has yet to be approved by the new State Cabinet.

CONCLUSIONS

3.97 All of the Australian jurisdictions share some similar experiences in the area of dealing with complaints against legal practitioners.¹⁰⁴ The same types of complaints predominate and in no State has the profession managed to overcome the general underlying problem of misunderstanding and lack of communication. Several trends are apparent across the jurisdictions, notably participation by lay persons in the complaints process, and the increase in the range of sanctions available against legal practitioners.

3.98 The emphasis being placed upon conciliation is also noteworthy. Most jurisdictions have been undertaking informal mediation without specific legislative power to do so; however, the inclusion of a statutory obligation to attempt a conciliated resolution where appropriate is a positive development.

3.99 Another common thread between these jurisdictions is the clear distinction which is made by the complaints bodies between allegations of negligence, which generally are not investigated, and allegations about “conduct”, which may be investigated.

3.100 Victoria, Queensland and South Australia have Lay Observers, and Tasmania appears likely to move in this direction. The Lay Observers in these jurisdictions become involved in the complaints process at a much earlier stage than does the Legal Profession Conduct Review Panel in New South Wales. Notably, the Lay Observers are entitled to attend the various complaints committee and disciplinary proceedings. Western Australia, which has recently had occasion to reassess their complaints system and recommend changes, has not proposed the introduction of a Lay Observer. Lone among Australian jurisdictions, however, the disciplinary process in Western Australia already is in the hands of an independent body rather than the peak professional association(s).

COMPLAINTS AGAINST LAWYERS IN ENGLAND

Introduction: the era of inquiries

3.101 The present system of regulation of the legal profession in England and Wales comes after two decades of unprecedented attention to this issue. Between 1970 and 1990, there were six major public inquiries and two major privately commissioned inquiries into the organisation of legal work and the structure and regulation of the profession. The Monopolies and Mergers Commission conducted inquiries into the provision of legal services in 1970 and (two in) 1976, with little result in the face of professional opposition to free market reform proposals.¹⁰⁵ The Royal Commission on Legal Services (the “Benson Commission”) conducted a major inquiry and presented its report to Parliament in 1979.¹⁰⁶ (A separate royal commission on legal services in Scotland reported to Parliament in 1980.)¹⁰⁷ The Government responded with its own White Paper in 1983.¹⁰⁸

3.102 Following considerable public outcry in 1982-1983 over the apparently lenient treatment accorded to a member of the Law Society Council who had been found to have been guilty of grossly overcharging clients,¹⁰⁹ the Law Society commissioned the firm of management consultants, Coopers & Lybrand, to undertake a review of the organisation, management and administration of the affairs of the Law Society. The Coopers draft report “clearly came as a shock to the Council”,¹¹⁰ recommending the transfer of all disciplinary powers from the Law Society to an independent, statutory Solicitors Complaints Board. The draft proposed that the Board would have power to investigate complaints, to arrange compensation and to prosecute complaints before the Solicitors Disciplinary Tribunal. Matters not sufficiently serious to go before the Tribunal would be determined by the Board itself. The Board would be independent of the Law Society, but funded by the profession, and its members would be elected by the profession.¹¹¹ The Law Society Council persuaded Coopers to include an alternative proposal in its final report, which would preserve the Law Society’s responsibility for discipline, but with greater internal separation of functions and an increased monitoring role for lay persons.

3.103 In 1985 the National Consumer Council (“NCC”) published the results of a survey that it had commissioned in the previous year.¹¹² The survey sought to ascertain the kind of complaints system that would meet the approval of the public. The survey was conducted among a representative sample of nearly 2000 adults. Only 15% of respondents thought that the Law Society or solicitors should investigate complaints made about the standard of service provided by solicitors. A question was posed concerning the desirable composition of any new complaints body: 34% of respondents thought that it should be made up entirely of people who are not solicitors, 60% thought that the body should be made up of a mixture of solicitors and other people, while only 3% thought the body should be made up entirely of solicitors. A majority (55%) of respondents preferred to have all or a majority of lay persons on any body investigating complaints against solicitors.¹¹³

3.104 The NCC concluded by making its own proposal for the reform of the complaints handling process, the essence of which was the creation of an independent Legal Council, composed of both solicitors and lay persons,¹¹⁴ with power to investigate all complaints against solicitors, and to set standards of professional conduct. This would leave the Law Society free to concentrate upon its role as a professional association.¹¹⁵ The NCC proposed that the Legal Council would employ at least one Legal Ombudsman, with responsibility for investigating all complaints and resolving minor ones. More serious charges would be prosecuted before the Disciplinary Tribunal.¹¹⁶

3.105 Also in 1985, a private members bill was introduced into the House of Commons by a Labour backbencher (and co-sponsored by five others), with the support of the NCC and the Legal Action Group.¹¹⁷ The Solicitors (Independent Complaints Procedure) Bill called for an independent General Legal Council with a bare majority of solicitors and the power to investigate and correct both misconduct and negligence as well as to arbitrate malpractice claims.

3.106 In 1986, a Committee of Inquiry into the Future of the Legal Profession was established under the convenorship of Lady Marre, with representation from both branches of the legal profession as well as independent members. The resulting Report¹¹⁸ had only been available for discussion for six months in 1988 when the Lord Chancellor, Lord Mackay of Clashfern, released a series of three Green Papers on the work and organisation of the legal profession,¹¹⁹ conveyancing,¹²⁰ and contingency fees¹²¹ in January 1989.

3.107 Referring to the need for complaints about services to be investigated promptly, thoroughly and impartially, the Green Paper on the Work and Organisation of the Legal Profession noted that:

The Law Society appears to have hoped that, by setting up the Bureau in a separate establishment, with a lay-dominated Investigation Committee to monitor its performance, they would, notwithstanding that they fund the Bureau, enable it to be regarded as independent of the Law Society. It is not clear that they have as yet been successful in this.¹²²

3.108 The Green Paper identified several problems with the system which were in need of rectification, including:¹²³

• The need to adopt clear standards in a written code of conduct to assist in identifying what is meant by the expression “shoddy work”.
• The Bureau’s unwillingness to take action where it appeared that the complaint raised a question of negligence as opposed to professional misconduct. In the Green Paper, the Government states that in some cases it would be appropriate to deal with the complaint under the shoddy work powers. According to the Paper, the possibility of court proceedings should not be used as an excuse to prevent or delay making right what has gone wrong, especially when the damage is perfectly clear.
• The need for the Law Society to explain to the public the nature of its various powers and the relationship between them.
• The inadequacy of the Lay Observer’s powers. The Lay Observer had limited powers to take cases to the Solicitors Disciplinary Tribunal, no powers of referral to the Bureau, no power to re-investigate the case or to award compensation. Furthermore, there was no equivalent office-holder to monitor the complaints procedures of the Bar.

3.109 Following submissions, the Lord Chancellor produced a White Paper later in 1989 on Legal Services.¹²⁴ The key recommendations were: the abolition of the solicitors’ monopoly over conveyancing and probate work; the abolition over the barristers’ monopoly over higher court advocacy, the establishment of the office of Legal Services Ombudsman to monitor the handling of complaints against lawyers; and the establishment of a Lord Chancellor’s Advisory Committee on Legal Education and Conduct. Legislation giving effect to most of the recommendations in the White Paper followed in 1990, with the passage of the Courts and Legal Services Act 1990 (UK).

Complaints against solicitors

The previous system

3.110 Prior to September 1986, the Law Society’s Professional Purposes Committee (PPC), supported by the Society’s Professional Purposes Department, was responsible for: the investigation and adjudication of complaints against solicitors; administrative action (by means of reprimands of varying grades of seriousness) against less serious breaches of the rules of conduct; and prosecuting more serious cases before the Solicitors Disciplinary Tribunal. The PPC was also responsible for, among other things, setting and maintaining standards of conduct and advising solicitors on conduct issues including how to deal with complaints (“pastoral care”).¹²⁵ A Lay Observer was responsible for external monitoring of the Law Society’s handling of complaints against solicitors.¹²⁶

3.111 The Administration of Justice Act 1985 (UK) significantly extended the powers of the Law Society in dealing with complaints about solicitors. This Act conferred upon the Law Society the power to investigate complaints about “inadequate professional services”, or “shoddy work” as the provision is more commonly known. Until this time the Law Society’s investigation of complaints was restricted to matters of conduct (ie, in our terms, professional misconduct). Section 1 of that Act gave the Law Society power (beginning in 1987) to impose sanctions for inadequate professional services, including the power to direct the solicitor to secure the rectification of any error, omission or deficiency and the power to refund, remit or waive the whole or any part of the solicitor’s costs. Section 2 of this Act gave the Law Society the power to call for and examine the files of a solicitor for the purpose of investigating a complaint made to the Law Society.

3.112 The Administration of Justice Act 1985 also effected amendments to ss 12 and 76 of the Solicitors Act 1974. The effect of the first of these amendments was to enable the Law Society to impose such conditions on a practising certificate as the Society may think fit in the case of a solicitor who has failed to give a satisfactory explanation in respect of any matter relating to his or her conduct after having been invited to do so.¹²⁷ By virtue of the second amendment, any committee appointed to exercise the Council’s powers in relation to inadequate professional services or examination of files shall include at least one solicitor who is not a member of the Council, and at least one lay person.¹²⁸

The Solicitors’ Complaints Bureau

3.113 In late 1986, the Law Society Council¹²⁹ adopted the alternate Coopers & Lybrand proposal. The Law Society established two new Committees in place of the Professional Purposes Committee: an Adjudication Committee (which exercised the statutory powers of the Law Society) with a majority of solicitor members, and an Investigation Committee with a majority of lay members. The Committees and their supporting staff constituted the Solicitors Complaints’ Bureau (the “Bureau”), which, while being an establishment of the Law Society, is housed in separate premises and distanced from the other functions of the Society. The other functions of the Professional Purposes Department were transferred to a new Ethics and Guidance Department, subsequently absorbed into the Directorate of Professional Standards and Development.¹³⁰

3.114 The structure of the Bureau changed substantially in early 1991 to accommodate the new powers granted by the Court and Legal Services Act 1990. Under the new Act the Council of the Law Society is empowered to delegate any of its functions (other than reserved functions) to a committee (or a sub-committee).¹³¹ These committees may include lay persons.¹³² A significant introduction made by the Act was the power of the Council to order the solicitor to pay compensation to the client of an amount up to £1,000 where there has been a finding of inadequate professional services. The amendments to the Solicitors Act 1974 made by the Courts and Legal Services Act 1990 mark a change by the Bureau in the way it handles complaints. The emphasis has shifted from disciplinary action to consumer redress,¹³³ a move which had been urged by the Chairperson of the Investigation Committee.¹³⁴

3.115 In December 1990, the Law Society Council approved a package of proposals to improve and expedite complaints-handling procedures at the Bureau to take advantage of these new powers under the Courts and Legal Services Act 1990. The reforms make provision for first-instance (summary) decisions in many cases, including some conduct matters to be delegated to senior Bureau staff. The Bureau’s director and assistant directors now have the power to order a trust account inspection and the power to award compensation in respect of inadequate professional services.¹³⁵ This measure was approved despite strong resistance from by some Council members, and only after assurances from the chairman of the Adjudication Committee that staff would never be empowered to deliver rebukes or to institute disciplinary proceedings. The Council also reserved for itself the power to approve any future extensions of staff delegation. Other components of the package include an overhaul of the committee structure in order to introduce a formal appeals system.

3.116 Complaints are now received by a central “diagnostic unit” of experienced Bureau staff who act as a first filter. The unit directs urgent interventions, regulatory matters and serious misconduct to a conduct and regulation section. Compensation claims and matters of inadequate professional services are directed to the compensation and costs section. All remaining matters are sent for conciliation. A conduct sub-committee (with a solicitor majority of two to one) hears appeals in regulation and conduct cases. The compensation sub-committee has a lay majority of two to one. Three-person committees are now the rule, with provision for additional members in complex or sensitive cases. If a finding of misconduct proves worthy of a disciplinary sanction or proceedings, the decision is made by the conduct sub-committee, with a right of appeal to a differently constituted appeals sub-committee.

3.117 Conciliation efforts. The principal grounds of complaint against solicitors received by the Bureau concern delay, poor communication, misunderstandings and carelessness.¹³⁶ Only a small percentage of all complaints ever reached the Adjudication Committee.¹³⁷ In 1990, it was reported that delay accounted for one quarter of all complaints received by the Bureau.¹³⁸ In 1990, the Bureau identified a number of typical problems suitable for conciliation. These included the situations mentioned above, where communications between solicitor and client break down, where there is avoidable delay, and where the solicitor fails to hand over papers although exercising no lien.¹³⁹

3.118 The use of conciliation by the Bureau has increased very rapidly over the past few years. In 1989, 20% of complaints received by the Bureau were handled by conciliators, with a 90% success rate.¹⁴⁰ In January 1991, 30% of complaints were being referred for conciliation,¹⁴¹ and by June 1991 the figure had leaped to 90%.¹⁴² The conciliation scheme expanded with the launch of a local conciliation scheme.¹⁴³ To assist in the expeditious resolution of this type of complaint a direct telephone contact system was introduced. Rather than waiting for the respondent solicitor to reply to the standard letter asking for his or her comments on the complaint, the solicitor is contacted by telephone. Early results on the operation of the special unit responsible for using this method showed that about 60% of complaints dealt with in this manner are resolved to the satisfaction of both parties within one month.¹⁴⁴

3.119 Helpline. In September 1990, a telephone information “helpline” was introduced. Callers to the helpline are not provided with legal advice, but receive practical advice on how their problem with their solicitor might be resolved. If the helpline operator recognises the problem as being of a kind that might be dealt with by a telephone call to the complainant’s solicitor, the caller will be referred to the Bureau’s conciliation team.¹⁴⁵

The Legal Services Ombudsman

3.120 The provisions of the Courts and Legal Services Act 1990 dealing with the Legal Services Ombudsman commenced operation on 1 January 1991. Section 21 establishes the office of the Legal Services Ombudsman. The Legal Services Ombudsman is appointed by the Lord Chancellor. He or she may not be an authorised advocate, litigator, licensed conveyancer, authorised practitioner (ie, solicitor or barrister) or notary.

3.121 The main function¹⁴⁶ of the Legal Services Ombudsman is to review the way in which complaints have been handled by the professional associations, including the Solicitors’ Complaints Bureau, the General Council of the Bar and the Council for Licensed Conveyancers.¹⁴⁷ This may involve some re-investigation of the complaint, both in terms of the sufficiency of the initial investigation as well as the substance of the complaint.¹⁴⁸ The Ombudsman’s office may not commence an inquiry until after the professional body has finished dealing with the matter (unless there has been unreasonable delay). The Ombudsman is not permitted to investigate issues which have determined by the courts or the statutory disciplinary tribunals. Once the Ombudsman has commenced an inquiry, he or she has the same powers as the English High Court (Supreme Court) to compel the attendance of persons, to compel the production of documents or other information, and to examine witnesses.¹⁴⁹

3.122 Having completed an investigation, the Ombudsman must report in writing to the complainant, the practitioner who is the subject of the complaint, and the relevant professional association. The Ombudsman may make recommendations that: (1) the complaint be reconsidered by the relevant professional association; (2) the professional association exercise its powers; (3) the subject of the complaint and/or the professional association involved pay specified compensation to the complainant for any loss, distress or inconvenience suffered; and (4) the complainant be reimbursed whole or in part for the costs of making the allegation.¹⁵⁰ The Ombudsman also may make recommendations of an “advisory nature” to the professional associations about their arrangements for the handling of complaints, and the professional associations are under an obligation “to have regard” to any such recommendation.¹⁵¹ Finally, the Legal Services Ombudsman may refer matters to the Lord Chancellor’s Advisory Committee on Legal Education and Conduct, as part of the general duty to assist in the maintenance and development of standards in the education, training and conduct of those offering legal services.¹⁵²

3.123 The first Legal Services Ombudsman, Mr Michael Barnes, took office in January 1990. He made it clear prior to assuming office that it was his intention to make himself available to complainants and to members of the profession where necessary. From his prior experience on the Investigation Committee of the Solicitors’ Complaints Bureau, he was aware that the complaints machinery was not as accessible to people unable to clearly communicate their complaint by letter. The Ombudsman was also eager to ensure that the office, and the services offered by it, were publicised to consumers.¹⁵³

3.124 In the first six months of office the Ombudsman had almost 1,000 complaints to deal with, most of these left over from the Lay Observer’s office. Not unexpectedly, the majority of new complaints received by the Ombudsman concerned solicitors. Only 3% related to the handling of complaints against barristers or licensed conveyancers.¹⁵⁴ Reports were issued on 224 complaints. In 15% of the inherited cases and 20% of new cases the Ombudsman found wholly or partly in favour of the complainant. In many of these cases the Ombudsman did not disagree with the Bureau’s ultimate decision but made some criticism of the conduct of the matter. In this latter circumstance, no cash compensation is payable to the complainant.¹⁵⁵

3.125 By July 1991, the Ombudsman had ordered four solicitors and the Bureau to pay compensation to complainants. The Bureau was ordered to pay £350 pounds for delay and lack of coordination in handling a case in 1988.¹⁵⁶ Two of the four solicitors ordered to pay compensation were guilty of failing to follow clients’ instructions and one of these had overcharged the client. A third was guilty of generally sloppy service and the fourth of inaction, lack of communication with the client and failure to follow counsel’s advice.¹⁵⁷ In determining the amount of the awards the Ombudsman had regard to the awards made in small breach of contract cases.

3.126 Since the release of the Green Paper and in the short time that the office has been established, there has been some criticism of the Legal Services Ombudsman’s role and likelihood of success. At the time that the proposal for an Ombudsman was first made there was concern that replacing the Lay Observer with a Legal Services Ombudsman would do nothing but change the packaging.¹⁵⁸ In particular, there were concerns about the provision of adequate resources to enable the Ombudsman to thoroughly review and investigate matters, and in fact resource problems already have begun to emerge.¹⁵⁹ The other major criticism of the institution of the Ombudsman’s office is that the Ombudsman has no enforcement powers, other than adverse publicity, and thus is “toothless”,¹⁶⁰ or a “watchdog in need of dentures”.¹⁶¹ Suggestions on how to improve the office were made when the introduction of an Ombudsman was first mooted. One author has suggested that the value of the Ombudsman would be considerably greater if he or she were given the power, if not the duty, to establish a specialist unit to conduct research aimed at the improvement of standards.¹⁶²

The Solicitors Disciplinary Tribunal

3.127 Applications to have the name of a solicitor struck off the Roll, or applications from a former solicitor to have his or her name restored to the Roll, are heard by the Solicitors Disciplinary Tribunal. The Tribunal is properly constituted by three members, one of whom must be a lay member. The Tribunal has a range of statutory powers, including the power to strike off, to suspend a solicitor from practice, and to fine (an amount not exceeding £5000).¹⁶³ Recent amendments brought about by the Courts and Legal Services Act 1990¹⁶⁴ make it clear that the Tribunal may suspend a solicitor from practice for either a specified period or indefinitely. Also, the provision makes it clear that the Tribunal may impose a separate penalty in respect of each and every proven allegation. The Tribunal may make orders in respect of a former solicitor’s conduct at the time that he or she was a solicitor.

3.128 The Courts and Legal Services Act repealed the Disciplinary Tribunal’s jurisdiction over inadequate professional services.¹⁶⁵ However, the Tribunal may hear complaints that a solicitor has failed to comply with a direction made by the Solicitors’ Complaints Bureau.¹⁶⁶

Client Care

3.129 At the end of 1989, mindful of the immininent passage of the Courts and Legal Services Bill, the Secretary General of the Law Society suggested that there should be more regulation of practitioners by those practitioners themselves within their own practices. For example, every practitioner should be required to state the terms of business at the beginning or soon after the start of every transaction. These terms would cover the scope of the retainer, the system used to assess charges, the manner of informing the client about progress and about costs, and who to contact in the event of questions or problems. The Secretary General observed that if this was applied as a general rule, the number of matters going to the Solicitors’ Complaints Bureau would reduce significantly. Apart from complaints about dishonesty and other major acts of misconduct, the Bureau could assume a role more analogous to an ombudsman, in that the Bureau would not necessarily need to consider a complaint which has been pursued through the firm from which it has come or through any local conciliation machinery.¹⁶⁷

3.130 In July 1990, the Council of the Law Society passed the “client care rule”. This rule sets out duties in relation to keeping clients informed and obliges firms to set up in-house complaints handling procedures. The Society also made a commitment to step up its efforts to encourage firms to introduce the practice of providing detailed information to clients about costs in advance.¹⁶⁸ The rule came into effect on 1 May 1991. Breach of the rule is not automatically a disciplinary matter; however, a material breach could constitute “inadequate professional services” and a serious or persistent breach could amount to professional misconduct.¹⁶⁹

Complaints against barristers

Governance of the Bar

3.131 The English Bar is governed by six principal bodies: the Bar Council, the four Inns of court, and the Inns’ Council.¹⁷⁰ All barristers must belong to one of the four Inns of Court. Professional governance of the Bar is vested in the executive Bar Council. On all policy matters affecting discipline, the Bar Council works in close consultation with the Inns through the Council of the Inns of Court, on which all the Inns’ governing bodies are represented.¹⁷¹

3.132 The Bar has a written Code of Conduct. The first code was issued in 1980 and contained all the matters which the Benson Royal Commission recommended should be covered.¹⁷² The latest Code of Conduct was adopted by the Bar Council in early 1990. The Code sets out, amongst other things, the general duties of barristers, the rules on acceptance of instructions and on withdrawal from a case, the duties of barristers to clients, the manner in which a case should be conducted both in and out of court, and what happens when a conflict of interest arises. Part VIII of the Code is devoted to disciplinary proceedings.

Reception and investigation of complaints

3.133 Complaints against barristers are received by the Bar Council and are referred to its Professional Conduct Committee (“PCC”) for investigation. The PCC consists of members of the Bar and a number of lay members nominated by the Lord Chancellor. The procedure for dealing with complaints is set out in the PCC Rules.¹⁷³ The PCC may summarily dismiss trivial or vexatious complaints. In all other cases the Secretary of the Committee invites the barrister who is the subject of the complaint to comment on the complaint. This invitation is conveyed by letter. Significantly, if no response is received from the barrister concerned within 28 days, the PCC may proceed as if the barrister’s response had been to deny the substance and the validity of the complaint in its entirety.

3.134 Once the response of the barrister concerned is received (if at all) the PCC considers the complaint in light of all the material then available. The PCC may then pursue one of a number of courses. The complaint may be dismissed under a self imposed rule, however, no complaint is rejected by the PCC unless the lay members agree. Further investigation or inquiry may be ordered. Where the conduct disclosed by the complaint is such as to require informal treatment, the PCC will draw it to the barrister’s attention in writing and in appropriate circumstances the barrister will be directed to visit the Chairman of the PCC to discuss the issues raised by the complaint.

3.145 The Rules of the PCC require the Secretary of the PCC to "take steps as are reasonably practicable to inform the complainant of the progress and result of his complaint".

Hearings before a Tribunal

3.146 Subject to one exception (see the next paragraph, below), complaints which disclose a prima facie case of professional misconduct or a breach of proper professional standards form the basis of a charge or charges before a Summary Tribunal or a Disciplinary Tribunal. Professional misconduct includes any failure by a barrister to comply with the provisions of the Code of Conduct, the Consolidated Regulations of the Inns of Court, the Code of Conduct for lawyers in the European Community, and the Legal Aid Act 1974.¹⁷⁴ A Summary Tribunal is referred those matters in which there arises no Disputes of fact which cannot be resolved by a summary procedure. A charge which, if proved, would be likely to result in a sentence of disbarment or suspension must referred to a Disciplinary Tribunal. Where the PCC determines that a complaint shall form the subject matter of a charge or charges before a Disciplinary or Summary Tribunal, the PCC nominates one of its members to take charge of the proceedings on its behalf.

3.147 In cases where the complaint discloses a prima facie breach of professional standards, but the PCC does not consider that the matter is serious enough to warrant referral to a Disciplinary or Summary Tribunal, the PCC will direct the barrister to attend on the Chairman or Vice Chairman of the PCC to provide an explanation for his or her conduct and, if the explanation is not satisfactory, to be given advice as to his or her future conduct, or to be admonished. (Where the PCC follows this procedure its findings are not publishable.)

3.138 A Disciplinary or Summary Tribunal consists of a Chairman, who shall be a judge (or in cases determined by summary procedure the Chairman may be a Queen’s Counsel), a lay representative and three practising barristers. Proceedings before a Disciplinary or Summary Tribunal are generally conducted in private. Proceedings are governed by the rules of natural justice. The Tribunal is not bound by the rules of evidence. At the conclusion of a hearing the finding of the Tribunal is recorded. On any charge of professional misconduct it is open to the Tribunal to find that professional misconduct has not been proved but that a breach of proper professional standards has been proved. Where the members of the Tribunal are equally divided as to the finding on any charge, or as to the penalty to be imposed, the determination that prevails is that which is the most favourable to the barrister.

3.139 Upon a finding of professional misconduct on the part of a barrister, a Summary Tribunal may order that the barrister pay a fine to his or her Inn of up to £500, that the barrister repay or forego fees, or that the barrister be reprimanded by the Treasurer of his or her Inn. A barrister against whom a charge of breach of proper professional standards has been found proved may be admonished by the Tribunal, given advice as to his or her future conduct or ordered by the Tribunal to attend on a nominated person for such purpose. The same sanctions are available to a Disciplinary Tribunal upon a finding of professional misconduct, except that the Tribunal also has the power to disbar the barrister, or suspend him or her for a prescribed period (either unconditionally or subject to conditions), or to impose a fine not exceeding £5,000. The Tribunal also may reduce or cancel legal aid fees and exclude a barrister from legal aid work in appropriate cases.¹⁷⁵ In determining the sentence to impose, a Tribunal will have available information concerning the barrister’s previous professional history. The barrister’s Inn of Court gives effect to the sentence.

3.140 A Summary or Disciplinary Tribunal has the power to make orders for costs. Any costs ordered to be paid by or to a defendant shall be paid to or by the Bar Council. All costs and expenses incurred by a Tribunal or by the PCC in connection with a hearing before a Tribunal are borne by the Bar Council.

Appeals

3.141 Appeals against the conviction and sentence made by a Tribunal may be lodged with the Visitors. An appeal is heard by a single judge of the High Court. unless the appeal relates to an order for disbarment, or is an appeal from a tribunal presided over by a judge of the High Court in which case the appeal is heard by three judges of the High Court or the Court of Appeal.

The complaints experience

3.142 The largest category of complaint against barristers concerns inadequate representation. Other major grievances include complaints about the conduct of proceedings, acting without instructions, bad advice and lack of courtesy.¹⁷⁶ In 1989, the PCC noted that a large number of complaints alleged a failure to deal with papers within a reasonable time, and an equally significant number concerned the late return of instructions due to clashes of professional commitment. The PCC observed that this latter problem could be alleviated through increased liaison between barristers and their clerks.¹⁷⁶ The PCC also noted a significant number of complaints had been received from members of the judiciary alleging failure to attend court on time for hearings.

3.143 For the year 1989, the PCC received just over 400 complaints. By December 1989, 233 complainants had been dealt with, leaving 171 to be resolved together with an additional 88 carried over from previous years. Of the unresolved complaints, 31 were cases referred to a Disciplinary or Summary Tribunal or awaiting the results of subsequent appeals. Of those matters which had been decided, only one barrister was disbarred and only one barrister was suspended from practice. Four of the 31 cases awaiting resolution by a Tribunal related to non-payment of Bar subscriptions.¹⁷⁸

THE UNITED STATES

Generally

3.144 The American legal profession is by far the largest in the world, both in terms of numbers and on a per capita basis. The regulation and discipline of lawyers is organised on a state-by-state, rather than on a national, basis, although the American Bar Association is very influential and there are efforts at setting and maintaining uniform standards. For example, most states have adopted the American Bar Association’s Model Rules of Professional Conduct. Unlike the position in England and Australia, at least with respect to solicitors, the American state disciplinary systems tend to place most of the regulatory powers in the hands of the judiciary.

3.145 There have been two major studies of disciplinary systems in respect of lawyers in the United States. In 1970, the American Bar Association’s Special Committee on Evaluation of Disciplinary Enforcement (the “Clark Committee”) produced the first national evaluation of disciplinary procedures. A second inquiry was conducted between 1989-1991 by the American Bar Association’s Commission on Evaluation of Disciplinary Enforcement, resulting in a May 1991 Report.¹⁷⁹ The Executive Summary of the Report is worth quoting from at some length:

[The] system of regulation must withstand the charge of inherent conflict of interest and appearance of impropriety. Regulation of lawyer conduct must be exercised by the judiciary and not by the organized bar. The courts must take more direct and active control of the disciplinary system. Reform is required to insulate disciplinary counsel from control or influence by the organized bar. Lawyers have a legitimate role to play in an appropriately structured disciplinary system, but the management and control of the system must rest with the courts. Central intake and statewide jurisdiction are essential ... Non-lawyers must be given a significant role in the administration of the system. Adequate resources must be provided to insure a thorough and comprehensive system of regulation.

The Commission’s research convinces us that the disciplinary systems are fair to both respondents and complainants, but there is a high level of public distrust. Secret proceedings are the greatest cause of distrust. If public trust is to be promoted, disciplinary systems can no longer operate secretly. ...

Despite the considerable progress made since the Clark Report, there is still room for improvements in the functioning of disciplinary systems. Lawyers charged with misconduct are entitled to basic due process. At the same time, summary procedures and consent procedures are appropriate to insure prompt disposition of complaints. Expedited processing of minor complaints will unburden the system and permit greater attention to more serious charges. In all cases, the disciplinary system must react in a timely fashion to protect the public against continued misconduct. Interim suspension procedures must be available. There must be expedited processes for reciprocal discipline and for discipline upon conviction of crime. Preventive measures must be adopted. ...

Finally, and perhaps most importantly, the scope of judicial regulation must be expanded to cover the thousands of complaints that are routinely dismissed each year. These complaints are dismissed because they do not allege ethical violations. Yet in many of these cases, while the lawyer’s conduct may not have been unethical, the complaint deserves attention and response. In some jurisdictions, a response has been provided by the organized bar such as fee Dispute arbitration. In a few of these jurisdictions, arbitration is mandatory for the lawyer. Some bar associations have offered mediation and voluntary arbitration services to resolve minor Disputes. In some jurisdictions, continuing legal education is mandatory. However, these efforts are not coordinated or offered in any structured, integrated way. The Commission recommends a multi-door system of lawyer regulation which affords a variety of responses to the needs of the public and the profession in addressing these problems.¹⁸⁰

California

Disciplinary framework

3.146 California has the largest legal profession in the United States, with 132,000 members. California - in common with all of the American states - is a fused jurisdiction. All lawyers are admitted as “Attorneys and Solicitors” of the Supreme Court of California. The system of regulation and discipline of lawyers in California is widely regarded as the “state of the art” in the US, with the large size of the profession permitting considerable funds to be devoted to these efforts. In 1992, over $40 million, or 68.25% of the State Bar’s budget, which is raised entirely from membership fees, is devoted to matters of discipline (including programs aimed at prevention of incompetent or unethical conduct).¹⁸¹

3.147 In 1989, California established the first (and still the only) full-time “Bar Court” to hear disciplinary matters. The California Supreme Court appointed the nine judges to the Bar Court, which is comprised of a presiding judge, six hearing judges, and two review judges - one of whom is a “public member” (a lay person). In 1990, the Bar Court took or recommended disciplinary action in 455 cases.

The handling of complaints by the State Bar

3.148 All complaints about lawyers are received by or directed to the Office of Intake and Legal Advice. In 1990, there were 68,197 calls from the public made to the toll-free “Attorney Complaint Intake Line”. Telephone calls and other communications disclosing possible lawyer misconduct are referred to the Office of Investigation. After investigation, matters which are going to be taken to the State Bar Court are sent to the Office of Trials, which prepares the prosecution. The State Bar also operates a system of mandatory fee arbitration to resolve Disputes about lawyers’ fees.

3.149 The Office of Trials has the power to impose interim remedies in appropriate cases; for example, it may suspend a lawyer from practice if it has reasonable cause to believe that there is a substantial risk of harm to clients.¹⁸² Hearings before the State Bar Court are formal. It is interesting to note that the scale of operations in California has led to the development of a legal specialty in defending lawyers charged with a disciplinary offence.¹⁸³

3.150 Members of the public who feel aggrieved when the State Bar decides not to file formal charges with the Bar Court may appeal to a Complainants Grievance Panel, which has substantial lay representation. There also is an “independent discipline monitor” who reports annually to State Legislature. At present, this position is held by an academic lawyer.¹⁸⁴

3.151 The State Bar’s Office of Professional Competence, Planning and Development is largely responsible for running the prevention and education programs. This Office operates the “Ethics Hotline” for lawyers, which took 22,000 calls in 1990.

THE NSW DEPARTMENT OF HEALTH’S COMPLAINTS UNIT

Establishment of the Complaints Unit

3.152 The Complaints Unit was set up administratively within the New South Wales department of Health in 1984, in response to pressure from community and consumer organisations for a clear avenue for the resolution of complaints about the New South Wales health system. The Complaints Unit presently relies for its powers upon various statutes relating to the registration of health professionals and hospital administration, including the Health Administration Act 1982, the Public Hospitals Act 1929 and the Medical Practitioners (Amendment) Act 1987. A proposal to consolidate the Complaints Unit’s legislative base by constituting it as an independent statutory authority known as the Health Care Complaints Commission recently received “in principle” support from Cabinet.¹⁸⁵ Under the proposal the Health Care Complaints Commission will have considerably enhanced powers.

3.153 The principal role of the Complaints Unit is to investigate complaints made by health consumers against health professionals or health services. The categories of health provider against whom a complaint may be lodged are very wide. The Complaints Unit accepts complaints against any person or institution involved in any aspect of health services in NSW including medical practitioners, nurses, chiropractors, pharmacists, and even administrative and clerical staff employed in those areas (but not dentists¹⁸⁶). There are approximately 129,117 registered health professionals in New South Wales.¹⁸⁷ Expenditure on the Complaints Unit has increased from just over $1 million in 1987 to $2,134,798 in 1990.¹⁸⁸

3.154 The Complaints Unit has a Consumer Advisory Committee which provides advice and feedback from non-government consumer advocacy groups. The existence of this Committee, whose participants are drawn from various consumer organisations, recognises that the participation of consumers in the guidance and scrutiny of systems of which they are a part is an essential ingredient for accountability.¹⁸⁹ There are 14 consumer organisations represented on the Consumer Advisory Committee including the Medical Consumers’ Association, Public Interest Advocacy Centre, Australian Consumers’ Association, Women’s Health Information Resource and Crisis Care Association, New South Wales Council for Social Services and the Network of Alcohol and other Drug Agencies.

The objectives of the Complaints Unit

3.155 The objectives of the Complaints Unit are summarised in the Complaints Unit’s Annual Report to be:

• to analyse and resolve complaints about health services impartially;
• to monitor underlying trends in complaints;
• to take appropriate action as a result of investigation;
• to identify the implications for policy and administration which would improve the quality of health services;
• to serve as liaison point for consumer and other groups involved in health services; and
• to undertake professional, consumer and general community education.¹⁹⁰

3.156 In addition to its investigatory and prosecutorial functions, the Complaints Unit assumes a more general monitoring and public information role. The Complaints Unit does not consider individual complaints in isolation, but maintains a central database, actively monitors patterns and trends and identifies the policy implications for the health care system. The Complaints Unit works closely with the specialist colleges in this regard. The Unit has a high-profile public information role, exercised through the media, which is encouraged by the Minister for Health. The Unit has achieved a large degree of recognition through participation at consumer and professional forums.¹⁹¹ In addition, the Minister for Health and the Director General of the Department will from time to time request the Unit to initiate or participate in reviews and working parties on health issues.¹⁹²

The structure of the Complaints Unit

3.157 The Complaints Unit has organised itself into six sections to deal with the various aspects of its work. The Preliminary Inquiry Section has seven investigation officers and one inquiry officer. The section was created to enable complaints to be resolved within a short time frame. In cooperation with the Director of the Complaints Unit this section screens the majority of complaints received by the Complaints Unit. The functions and operation of the Preliminary Inquiry Section are described in more detail below.

3.158 The Investigation Section has two teams. The Standards of Care team, with five investigators, is responsible for investigating complaints about health care facilities and issues which involve problems of a systems or policy nature. The Service Providers team, also with five investigators, is responsible for the investigation of complaints about health providers. Members of the team prepare and appear in cases heard by the Professional Standards Committees of the Medical Board, Nurses Board and Physiotherapists Board.¹⁹³

3.159 The Legal Section contains four lawyers who investigate those complaints which, if proven, may warrant deregistration or suspension. Members of the section draft formal complaints, provide legal advice to other staff of the Complaints Unit, undertake special major investigations, and deal with coronial inquiries. The section is responsible for cases proceeding to disciplinary tribunals and any court proceedings arising from disciplinary actions.¹⁹⁴

3.160 The Policy and Publications Section consists of two members whose responsibilities include the preparation of submissions, reports and publications, undertaking major surveys and preparation of policy documents. This section also develops seminar programs given by the Complaints Unit.¹⁹⁵ The other two sections are the Administrative Section and the Consultative Medical Practitioners. The latter group offers medical advice about complaints, reviews investigations by the Complaints Unit, and counsels complainants. The Complaints Unit currently has four consultants.¹⁹⁶

The complaints procedure

3.161 The Complaints Unit model (even more so the Complaints Commission model) possesses a number of positive features which could readily be adapted for use within the legal services context. The Complaints Unit is concerned exclusively with the receipt and investigation of complaints against health professionals and health services in New South Wales, and is quite distinct from bodies undertaking representative functions, such as the Australian Medical Association. This actual and perceived independence of the Complaints Unit inspires public confidence that complaints will be dealt with in an impartial manner.

3.162 The Complaints Unit has managed to achieve a high level of acceptance within the health system despite some resistance from within the profession, particularly at its initial stages. Medical practitioners are increasingly less reluctant to give evidence or information against peers in relation to complaints. The Complaints Unit has eminent members of the profession to call upon as consultants and to provide the Unit with special expertise as required. As mentioned above, the Complaints Unit has established good, reciprocal working relationships with many of the specialist colleges.

Reception of complaints

3.163 Complaints against medical practitioners can be made to the Medical Board¹⁹⁷ or to the Director General of the Department of Health.¹⁹⁸ All complaints, regardless of their point of receipt, are investigated by the Complaints Unit under delegated authority from the Director General of the Department of Health. Similarly, other legislation obliges the Director General to investigate complaints made against health professionals, such as nurses and psychologists.¹⁹⁹ In other cases the health registration Acts provide the Director General with certain powers in relation to investigations, which are delegated to the Director of the Health Complaints Unit.

3.164 Although the Complaints Unit presently is part of the Department of Health, it has effective independence from the rest of the Department. The absence of a proper legislative base means that in practice the Complaints Unit has no power to subpoena witnesses and documents until a formal complaint has been made to a registration board, no power to insist on information being provided to it for the purpose of its investigations and reporting to the public is restricted. As noted above, these limitations will be overcome once the recommendations contained in the Cabinet proposal are implemented.

The handling of complaints

3.165 The right to complain is not limited to any category of person. Complaints are received from patients or persons acting on their behalf, the NSW Medical Board, the Office of the Ombudsman, the NSW Nurses Registration Board, consumer organisations and government authorities.²⁰⁰

3.166 The type of complaints received against health professionals are not dissimilar to those received against legal practitioners. As with complaints against legal practitioners, the basis of a large proportion of complaints against health professionals is poor communication between professional and client. There is, however, much disparity between the operation of the respective complaints mechanisms, especially at the initial intake phase. The Complaints Unit distinguishes itself with its superior record keeping. A form is completed by the Unit’s staff following each telephone enquiry. Where necessary, staff will actively follow up on the telephone enquiries, particularly if the enquiry appeared to raise serious issues. The Complaints Unit organises a telephone interpreter service where a complainant’s English language skills are not especially proficient.

3.167 Current explanatory material on the role and operation of the Complaints Unit is distributed widely, and is always sent to the complainant, the health professional who is the subject of the complaint. Information sheets are also made available to any health professional providing an independent opinion.

3.168 Complete records are retained by the Complaints Unit on all complaints lodged. Medical practitioners attract the largest number of complaints. In every year since the Complaints Unit’s inception, the single largest category of complaint has been in relation to treatment received. Other common complaints have been categorised by the Complaints Unit as professional conduct, service, costs and communications. In 1990, the Complaints Unit recorded 2,344 telephone enquiries and 1,373 written complaints were received.

3.169 Most complaints initially are allocated to the Preliminary Inquiry Section (“PIS”) of the Complaints Unit. The PIS was set up in 1990 in response to the large increase in complaints being received. The Complaints Unit made a policy decision at that time to devote more resources and more senior personnel to this phase, acknowledging the critical importance of the first step in the process. The PIS conducts personal interviews with complainants and responds to telephone enquiries. The PIS is also responsible for:²⁰¹

• Assessing complaints.
• Referring the complaint to another agency if it is outside the jurisdiction of the Complaints Unit, for example cases of alleged fraud and over-servicing are referred to the Commonwealth Department of Health and the Health Insurance Commission.
• Notifying the complainant if the complaint is not suitable for investigation by the Complaints Unit. For example, the Complaints Unit does not pursue matters in relation to financial compensation for consumers.
• Initiating contact with the complainant and health provider, with a view to facilitating resolution by consent. Generally the health provider or facility is referred the complaint with a request that he/she/it consult with the complainant. Alternately a meeting may be arranged at the Complaints Unit at which the complainant, the health provider or facility, a Complaints Unit officer and a medical officer attend.
• Providing information.

3.170 Matters which are not resolved by the PIS within 28 days are referred to the Investigation or Legal sections of the Complaints Unit. Once a complaint reaches the investigation stage, officers of the Complaints Unit will invariably obtain documentary evidence to supplement the correspondence from the complainant and response from the health provider or institution. This enables the officers to have sufficient information from which to make an evaluation of the complaint. Officers approach consultants for an opinion, and if necessary, an expert will then be asked to comment.

3.171 The majority of investigated complaints are resolved by providing the complainant with further information in the form of a letter of clarification or explanation. In 1990, 295 complaints were found to be “not substantiated” and information was provided to the complainant. Where investigation of the complaint results in recommendations for changes to existing policies or procedure, these are put to the Director General of the Department and the Minister for Health. Otherwise the complaint may be resolved by conciliation, be referred for disciplinary action by the Medical Tribunal or Professional Standards Committee or action under the appropriate registration Act, or be referred elsewhere. In 1990, 37 complaints were conciliated, 40 complaints were substantiated by a disciplinary body and 52 complaints were referred elsewhere. Only a very small percentage of complaints result in disciplinary action being initiated. In 1990, only five percent of complaints resulted in a disciplinary hearing.

3.172 The statistics published in the Complaints Unit’s Annual Reports indicate that for any given year a fair number of complaints are “terminated” (either by the complainant himself/herself or by the Complaints Unit). In 1990, 186 complaints were terminated. Reasons proposed by the Complaints Unit for discontinuing an investigation into a complaint include: where to continue would be detrimental to the complainant’s health; where the complaint is vexatious; where the Complaints Unit has offered solutions to the complainant and can offer no further assistance; where the complaint has previously been adequately investigated by another body; or where the complaint is more than five years old.²⁰²

3.173 A source of complainants’ dissatisfaction in the legal complaints arena is the often succinct manner in which the Law Society or Bar Association communicate the dismissal of the complaint. Complainants may be left with the (generally erroneous) impression that scant attention has been directed to their complaint and that not all the issues raised have been addressed. In this regard the legal complaints system could profit from the procedures applied by the Complaints Unit.

3.174 Letters of dismissal from the Complaints Unit are extremely detailed and contain an outline of all the evidence presented, an assessment of that evidence and the conclusions of the Complaints Unit. It is not uncommon for the complainant to receive a seven page report on the outcome of their complaint. The report to the complainant will regularly invite the complainant to attend at the Complaints Unit to discuss their complaint with the investigator and consultant involved in the determination of their complaint. The Complaints Unit considers this process necessary to reassure complainants that their allegations have been taken seriously and examined thoroughly.

3.175 The procedures applied by the Complaints Unit may be contrasted with those employed by the Dental Care Assessment Committee (“DCAC”). Since the passage of the Dentists Act 1989, the Complaints Unit no longer has jurisdiction to investigate complaints against dentists. There is evidence that persons making complaints against dentists are “appealing” to the Complaints Unit, alleging that the DCAC has not adequately investigated their complaint and producing a one page letter of dismissal in support. The Complaints Unit believes that the extra time and effort involved in providing a detailed explanation is fully justified by this experience.

3.176 All letters of dismissal from the Complaints Unit are reviewed by the coordinator of the section and the Director of the Complaints Unit prior to dispatch. Copies of the report are also forwarded to the subject of the complaint, the Medical Board, and certain other interested parties, such as the Area Health Service.

3.177 It is important to note that the investigation carried out by the Complaints Unit is fact finding in nature and not disciplinary. The Complaints Unit does not have the power to reprimand or otherwise sanction the health provider the subject of the complaint. If the investigation produces evidence of misconduct the Complaints Unit refers the complaint to the relevant disciplinary body. However, the vast majority of complaints do not proceed to this stage and are resolved by issuing a letter of explanation or clarification to the complainant.

Conciliation

3.178 A review of the Complaints Unit in 1988 suggested that the fact that the Complaints Unit was not set up as a conciliatory body was a major drawback to its efficient operation, particularly when the number of complaints which were resolved by providing information, counselling or conciliation was considered.²⁰³ Under the proposal approved in principle by Cabinet, complaints would be assessed to determine their suitability for conciliation, and those which are suitable would be referred outside the Complaints Unit (or Health Care Complaints Commission) for conciliation. This proposal is intended to allay concerns about the Complaints Unit performing both prosecutorial and conciliatory functions. Complaints which have no element of public interest, for example those complaints which do not involve a question of the doctor’s competence, will be appropriate for conciliation. In order to encourage doctors to agree to conciliation it is proposed that the conciliation proceedings will be absolutely privileged.

Disciplinary Action

3.179 If it is warranted, following an investigation by the Complaints Unit, the complaint is referred to the NSW Medical Board. The Board or the Director General of the Department may decide to refer the complaint to a Professional Standards Committee or the Medical Tribunal²⁰⁴ depending upon the nature and seriousness of the complaint. Professional Standards Committees and the Medical Tribunal (the “Tribunal”) are established by the Medical Practitioners Act 1938. The former is constituted by two medical practitioners and one lay person.²⁰⁵ Complaints that, if proven, would not lead to suspension or deregistration usually go before a Professional Standards Committee. Neither the complainant nor the medical practitioner concerned is allowed legal representation before a Committee although both may be accompanied by a legal adviser.²⁰⁶ If a Committee finds the subject matter of a complaint proved the Committee may caution or reprimand the practitioner, order that he or she seek treatment or counselling, impose conditions on the practitioner’s registration, order additional education, order that he or she report on his or her medical practice, order the practitioner to take advice in relation to the management of the medical practice, or impose a fine not exceeding $5,000.²⁰⁷

3.180 The Tribunal is constituted by a Chairperson or Deputy Chairperson, two registered medical practitioners and a lay person.²⁰⁸ The Tribunal conducts full judicial public hearings with legal representation for both parties. Referrals to the Tribunal are usually made by the Board, the Director General of the Health Department or a Professional Standards Committee. Generally it is the Complaints Unit that formulates and lodges the complaint with the Tribunal. The Tribunal may exercise all powers available to a Professional Standards Committee, although a fine imposed by the Tribunal may be up to an amount of $25,000.²⁰⁹ In addition the Tribunal may suspend the practitioner from practising medicine or direct that the person’s name be removed from the Register of Medical Practitioners for New South Wales.

3.181 The Registration Acts for various other health professionals have been modelled on the 1987 amendment to the Medical Practitioners Act 1938²¹⁰ and therefore provide for similar procedures for dealing with complaints against the various registered health professionals.²¹¹ For example, pursuant to the Chiropractors and Osteopaths Act 1991 (NSW), complaints made against chiropractors and osteopaths are to be made in the prescribed form to the Chiropractors and Osteopaths Registration Board or to the Director General of the Department of Health. The Board and the Director General are obliged to inform the other when a complaint is made to or by either of them. The Director General is required to investigate the complaint or cause it to be investigated. If, following an investigation, it is determined that further action should be taken on the complaint, the complaint will be referred to either a Professional Standards Committee or to the Chiropractors and Osteopaths Tribunal, both established by the Act.

Accountability

3.182 While independent, the Complaints Unit is subject to a considerable degree of public scrutiny and accountability.²¹² The Director of the Unit reports to the Minister for Health Services Management on complaints issues and the Minister for Health and Community Services on policy issues. As a public body, the Unit is open to investigation by the Ombudsman, the Privacy Committee, and the Independent Commission Against Corruption.

3.183 As noted above (see paragraph 3.164), a Consumers Advisory Committee to the Complaints Unit was established in 1988, with representation from consumer groups, community groups, health care advocates, relevant agencies, and others. The Committee operates to ensure consultation between the Unit and consumer groups, convey grievances and provide advice to the Unit, and provide current information about the health care and health care complaints systems.

1. Legal Profession Practice Act 1958 (Vic) s5. In this section, all footnote references are to this Act unless otherwise indicated.

2. Sections 14Q and 32F.

3. The Law Institute, the Council of the Law Institute, the Secretary of the Law Institute, the Registrar o3.186 A source of complainants’ dissatisfaction in the legal complaints arena is the often succinct manner in which the Law Society or Bar Association communicate the dismissal of the complaint. Complainants may be left with the (generally erroneous) impression that scant attention has been directed to their complaint and that not all the issues raised have been addressed. In this regard the legal complaints system could profit from the procedures applied by the Complaints Unit.

3. The Law Institute, the Council of the Law Institute, the Secretary of the Law Institute, the Registrar of the Solicitors’ Board, the Solicitors’ Board, the Bar Council, the Ethics Committee of the Bar Council and the Bar Tribunal.

4. Victoria. Law Reform Commission, Accountability of the Legal Profession (Discussion Paper 24, 1991).

5. Legal Profession Practice (Amendment) Act 1989 (Vic).

6. Section 38J.

7. Section 38B.

8. Section 38A.

9. Section 38E.

10. Section 2A.

11. Section 38O(2)(a).

12. Sections 38O(2)(b) and 38Q.

13. The Lay Observer has recommended that when a complaint raises allegations of misconduct as well as negligence the two matters should be dealt with together so the complainant and the solicitor can avoid going through two separate procedures. For more information refer to the Lay Observer to the Solicitors’ Board and the Barristers Disciplinary Tribunal, Annual Report 1990 (1990) at 26. (Hereafter, Lay Observer’s Report”.)

14. Lay Observer’s Report, at 12.

15. Section 38N.

16. Section 38(0)(4) & (5).

17. Lay Observer’s Report, at 13.

18. Section 38P.

19. Section 38L.

20. Lay Observer’s Report, at 14.

21. Section 38P(7).

22. Section 38P(6).

23. Lay Observer’s Report, at 15.

24. Section 38Z.

25. Section 38ZG.

26. Section 38Q(5).

27. Lay Observer’s Report, at 52.

28. Section 38ZA.

29. Under the Penalties and Sentences Act 1985(Vic), s96, one penalty unit is equal to $100.

30. Lay Observer’s Report, at 17-19.

31. Section 38ZB.

32. Lay Observer’s Report, at 22-25.

33. Section 38ZH(1).

34. Section 38ZH(2).

35. Solicitors’ Board of Victoria, Results of Questionnaires.

36. Results of Questionnaires, at 1, 4, 7, 11, 15, and 19.

37. Results of Questionnaires, at 7-8, 11-12.

38. Results of Questionnaires, at 16-17, and 20-21.

39. Results of Questionnaires, at 1, 4, 8, 12, 17, and 22.

40. Victoria. Law Reform Commission, DP 24.

41. The Law Institute’s Response to the Law Reform Commission of Victoria’s Discussion Paper No. 24: Access to the Law: Accountability of the Legal Profession (1991) at 3-4. (Hereafter, the “Law Institute’s Response”.)

42. Section 14B.

43. Section 14D(1).

44. Section 14D(2) & (3).

45. Section 14E.

46. Section 14F(5).

47. Lay Observer’s Report, at 32.

48. Lay Observer’s Report, at 32.

49. Section 14F.

50. Lay Observer’s Report, at 32.

51. Section 14G.

52. Section 14Q(4).

53. Section 14C.

54. Section 14G(5).

55. Section 14I(8).

56. Section 14I(15).

57. Section 14H.

58. Section 14J.

59. Section14J(2).

60. Section 14Q(4).

61. Lay Observer’s Report, at 29.

62. Lay Observer’s Report, at 32.

63. Section 32F.

64. Lay Observer’s Report, at 8.

65. Lay Observer’s Report, at 9.

66. Lay Observer’s Report, at 37.

67. Lay Observer’s Report, at 46, App 2.

68. Results of Questionnaires, at 6.

69. Victoria. Law Reform Commission, DP 24, at para 52.

70. Giannarelli v Wraith (1988) 165 CLR 543 (HCA).

71. The Law Institute’s Response, at 12.

72. Victorian Bar’s Response to the Law Reform Commission of Victoria’s Discussion Paper No. 24: Accountability of the Legal Profession (1991) at 2. (Hereafter, the “Victorian Bar’s Response”.)

73. The Law Institute’s Response, at 11.

74. Victorian Bar’s Response, at 2.

75. The Law Institute’s Response at 12

76. Victorian Bar’s Response, at 2.

77. South Australian Attorney General’s Department, Policy and Research Division, The Legal Profession - A Green Paper (October 1990) at 5. (Hereafter, the “SA Green Paper”.)

78. SA Green Paper, at 5.

79. Legal Practitioners Act 1981 (SA) s5.

80. Legal Practitioners Act 1981 (SA) s78.

81. Legal Practitioners Act 1981 (SA) s80.

82. Legal Practitioners Act 1981 (SA) s90.

83. SA Green Paper, at 27-28.

84. SA Green Paper, at 28.

85. SA Green Paper, at 42.

86. Queensland Law Society Act 1952 (Qld), ss 6(1)(a) and 6F.

87. Queensland Law Society Act 1952 (Qld) s6(1)(b).

88. Queensland Law Society Act 1952 (Qld) s6A(2).

89. Queensland Law Society Act 1952 (Qld) s6J.

90. Section 6(ab) was introduced by the Queensland Law Society Act and Another Act Amendment Act 1988 (Qld).

91. The solicitor-client mediation scheme launched on 30 August 1991. See (October 1991) The Proctor 7.

92. Statistics provided by the Director of the Professional Conduct Department on 9 March 1992.

93. Queensland Law Society Act 1952 (Qld) s65.

94. JRS Forbes, The Divided Profession (1979) at 189.

95. See D Weisbrot, Australian Lawyers (1990) at 171 and 199-200.

96. Law Society of Western Australia, Annual Report 1991.

97. Legal Practitioners Act 1893 (WA) s25.

98. Legal Practitioners Act 1893 (WA) s25.

99. Legal Practitioners Act 1893 (WA) s29.

100. This information is contained in the Barristers’ Board, Annual Report 1991.

101. Statutory Rules 1977, No 209.

102. There is no specific power to do so formally.

103. Law Society Act 1962 (Tas) s19.

104. See Weisbrot, at 164-171 and 201-210, for a summary of the regulatory regimes in the various states and territories.

105. United Kingdom Monopolies Commission, Report on the general effect on the public interest of certain restrictive practices so far as they prevail in relation to supply of professional services (1970); United Kingdom Monopolies and Mergers Commission, Barristers Services (1976) and Services of Solicitors in England and Wales (1976).

106. Royal Commission on Legal Services, Final Report (1979) (the “Benson Report”).

107. Royal Commission on Legal Services in Scotland, Report (1980) (the “Hughes Report”).

108. Lord Chancellor’s Department, The Government Response to the Report of the Royal Commission on Legal Services (1983).

109. See RL Abel, The Legal Profession in England and Wales (1988) at 255 for an account of the “Glanville Davies Affair”.

110. Abel, at 255.

111. (1985) 82 Law Society’s Gazette 3146.

112. National Consumer Council, In Dispute with the Solicitor (1985) (from the series “Consumers and the professions: a review of complaints procedures”). (Hereafter, the “NCC Report”.)

113. NCC Report, at 18.

114. NCC Report, at 39.

115. NCC Report, at 37.

116. NCC Report, at 42.

117. Abel, at 255-256. See also the NCC Report, at 10.

118. Report of the Committee on the Future of the Legal Profession (1988) (the “Marre Report”).

119. Lord Chancellor’s Department, The Work and Organisation of the Legal Profession (Cmnd 570, January 1989).

120. Lord Chancellor’s Department, Conveyancing by Authorised Practitioners (Cmnd 572, 1989).

121. Lord Chancellor’s Department, Contingency Fees (Cmnd 571, 1989).

122. Cmnd 570, at 16-17.

123. Cmnd 570, at 17-18.

124. Lord Chancellor’s Department, Legal Services: A Framework for the Future (Cmnd 740, 1989).

125. United Kingdom. Twelfth Annual Report of the Lay Observer 1986 (1986) at 5.

126. In the first decade of its operation, the Lay Observer only recommended that the Law Society reconsider 36 cases out of 3130 cases it was asked (by complainants) to consider. See Abel, at 253-254.

127. Administration of Justice Act 1985 (UK) s4.

128. Administration of Justice Act 1985 (UK) Sch 1.

129. Abel, at 256.

130. Lay Observer’s Annual Report 1986, at 5.

131. Solicitors Act 1974, s79(1), inserted by the Courts and Legal Services Act 1990, s97.

132. Solicitors Act 1974, s79(7), inserted by the Courts and Legal Services Act 1990, s97.

133. (1990) 140 New Law Journal 331.

134. O Hansen, “Complaints, What Complaints?” (1989) 139 New Law Journal 1347, reproduces an extract from the Annual Report in which the Chairperson comments, “...in the SCB’s work too much emphasis is put on the Law Society’s interest in regulating the profession and insufficient attention was paid to providing proper recompense for justifiably aggrieved clients”.

135. (1991) 141 New Law Journal 482.

136. (1989) 28 Law Society’s Gazette 6.

137. (1987) 84 Law Society’s Gazette 3462.

138. (1990) 12 Law Society’s Gazette 33.

139. (1990) 20 Law Society’s Gazette 4.

140. (1989) 27 Law Society’s Gazette 8.

141. (1991) 1 Law Society’s Gazette 5.

142. (1991) 24 Law Society’s Gazette 6.

143. See, eg, (1990) 140 New Law Journal 770, and (1990) 14 Law Society’s Gazette 4.

144. (1988) 138 New Law Journal 453.

145. New Law Journal 1218 (1990) 140.

146. Courts and Legal Services Act 1990 (UK) s22.

147. Courts and Legal Services Act 1990 (UK) s22(1).

148. Courts and Legal Services Act 1990 (UK) s22(2).

149. Courts and Legal Services Act 1990 (UK) s25.

150. Courts and Legal Services Act 1990 (UK) s23(2).

151. Courts and Legal Services Act 1990 (UK) s24.

152. Courts and Legal Services Act 1990 (UK) s24.

153. (1990) 36 Law Society’s Gazette 11.

154. (1991) 28 Law Society’s Gazette 3.

155. (1991) 28 Law Society’s Gazette 3.

156. (1991) 28 Law Society’s Gazette 3.

157. (1991) 28 Law Society’s Gazette 3.

158. E Gilbert, “Profession in crisis?” (1989) 139 New Law Journal 583.

159. See R Smith, “A place of last resort” (1991) 141 New Law Journal 297 and 1495.

160. Smith, at 1495.

161. Gilbert, at 583.

162. M Zander, “Accountability and Standards” (1989) 139 New Law Journal 303.

163. Solicitors Act 1974 (UK) s47.

164. Section 92.

165. Section 93.

166. Solicitors Act 1974, Sch 1A cl 5, inserted by the Courts and Legal Services Act 1990, s93.

167. Secretary General John Hayes, “A Fateful Year” (1989) 44 Law Society’s Gazette 10.

168. (1991) 5 Law Society’s Gazette 6.

169. (1991) 15 Law Society’s Gazette 14-15.

170. (July 1991) Counsel: The Journal of the Bar of England and Wales 14.

171. (November 1989) Counsel 30.

172. The Bar of England and Wales, The Quality of Justice: The Bar’s Response to the Government’s Green Paper (1989) at 192.

173. Code of Conduct of the Bar of England and Wales, Annexe M (adopted by the Bar Council on 27 January 1990).

174. Code of Conduct of the Bar of England and Wales, (1990) at para 802.1.

175. Under the Administration of Justice Act 1985, ss 41-42, as amended by s33 of the Legal Aid Act 1988.

176. Abel, at 379, Table 1.48.

177. (December 1989) Counsel 19.

178. (December 1989) Counsel 19.

179. The Commission initially was chaired by Mr Robert B McKay; after Mr McKay’s death the Commission was chaired by Mr Raymond R Trombadore.

180. American Bar Association, Commission on Evaluation of Disciplinary Enforcement, Report (1991) at iv-v.

181. Information supplied by the State Bar of California. The membership fee for “active” members in 1992 is US$ 428.

182. Technically, the lawyer’s membership of the Bar is involuntarily placed on “inactive” status.

183. The State Bar’s monthly journal, California Lawyer, contains many advertisements for “lawyers’ lawyers”.

184. Prof Robert C Fellmeth of the University of San Diego Center for Public Interest Law.

185. Approved in principle by State Cabinet on March 17, 1992.

186. Under the Dentists Act 1989 (NSW), complaints about dentists are dealt with by the Dental Care Assessment Committee.

187. NSW Department of Health, Annual Report 1990-1991 (1991).

188. NSW Department of Health, Complaints Unit 1987 Annual Report (1987) at App “C” (hereafter, for all years, the “Complaints Unit Annual Report”), and Complaints Unit 1990 Annual Report (1990) at 44.

189. Complaints Unit Annual Report (1989), at 17.

190. Complaints Unit Annual Report (1987), at 6.

191. Examples of conferences attended by officers of the Unit may be found in the Complaints Unit Annual Reports. See, for example, the Complaints Unit Annual Report (1988), at 24, and the Complaints Unit Annual Report (1989), at 20.

192. See the Complaints Unit Annual Report (1987), at 22, for examples.

193. NSW Department of Health, Complaints Unit, Submission, 28 February 1992, at 7-8. (Hereafter, the “Complaints Unit submission”.)

194. Complaints Unit submission, at 8.

195. Complaints Unit submission, at 8.

196. Complaints Unit submission, at 8.

197. The Medical Board is established by the Medical Practitioners Act 1938 (NSW) s5.

198. Medical Practitioners Act 1938 (NSW) s32A.

199. For example the Nurses Act 1991 (NSW) and the Psychologists Act 1989 (NSW).

200. Complaints Unit Annual Report (1989), at 6.

201. Complaints Unit Annual Report (1990), at 8.

202. Complaints Unit Annual Report (1987), at 10.

203. Complaints Unit Annual Report (1988), at 25. The review was undertaken by Mr John Mant of the law firm Phillips Fox, and was published as a Discussion Paper in January 1989.

204. The powers of the Board and the Secretary of the Department in relation to complaints received are contained in s31 and s32 of the Medical Practitioners Act 1938, respectively.

205. Medical Practitioners Act 1938, s32E(4).

206. Medical Practitioners Act 1938, s32G.

207. Medical Practitioners Act 1938, s32I.

208. Medical Practitioners Act 1938, s32M(5).

209. Medical Practitioners Act 1938, s32R.

210. The Medical Practitioners (Amendment) Act 1987 (NSW) reconstituted the NSW Medical Board and established the new disciplinary bodies and procedures for regulating the practice of medicine.

221. See, eg, the Nurses Act 1991 (NSW). See also the Psychologists Act 1989 (NSW), the Podiatrists Act 1989 (NSW), and the amendments introduced to the Pharmacy Act 1964 (NSW) by the Pharmacy (Amendment) Act 1989 (NSW).

212. Complaints Unit submission, at 10-11.