The reference on Scrutiny of the Legal Profession follows the Commission’s earlier inquiry into the legal profession in New South Wales, which led to the present regulatory regime under the Legal Profession Act 1987 (NSW). The Commission has been asked by the Attorney General, following the Memorandum of Understanding between the three Independent Members of Parliament and the Greiner Government, to consider the necessity for implementing alternative mechanisms for dealing with complaints about the delivery of legal services. (The Commission also has been asked to look into the openness and accountability of the major public sector providers of legal services, such as the Legal Aid Commission, the Crown Solicitor’s office, and the office of the Director of Public Prosecutions. This will be dealt with in a second Discussion Paper in this series.)

In Chapter 2 of this paper, we explain in some detail the current system for dealing with complaints against lawyers. Basically, the governing Councils of the peak professional associations - the Law Society of New South Wales and the New South Wales Bar Association - have been given wide statutory powers (some of which have been delegated to committees) to receive, investigate, assess and dismiss complaints, to issue reprimands, and to refer appropriate cases to the Legal Profession Standards Board or the Legal Profession Disciplinary Tribunal. The Board hears matters involving allegations of “unsatisfactory professional conduct”, while the Tribunal hears more serious allegations of professional misconduct, for which a legal practitioner may be struck off. The Legal Profession Conduct Review Panel, with a majority of non-lawyers, may review a Council’s dismissal of a complaint if the complainant has so requested.

In Chapter 3, we look at the methods used for handling complaints against lawyers in the other Australian states, with special attention to the system in Victoria. We also look at the position in England and Wales, and in the United States, with special reference to California. Finally, we consider the handling of complaints against health care professionals in New South Wales by the Department of Health’s Complaints Unit.

The final two chapters contain the Commission’s analysis of the strengths and weaknesses of the various methods of complaints-handling, and our suggestions for reform.

Chapter 4 covers common issues and problems in the handling of complaints against lawyers, with suggested improvements which are not necessarily contingent upon the retention or adoption of any particular regulatory model. Among the key matters which the Commission considers are:

• the introduction of a Complainant’s Charter of Rights, which would include guarantees about effective access to the complaints-handling system, immunity from civil liability, the rights to appear as a party and to be present at any subsequent hearing of the complaint, and the right to be kept fully informed of the status and progress of the complaint;
• the encouragement of mediation of disputes between lawyers and clients (while remaining sensitive to the imbalance of power between the parties and the need for independent, qualified mediators);


• the nature, composition and operations of the Standards Board and the Disciplinary Tribunal;


• confidentiality and the protection of communications made in the course of lodging or processing a complaint;


• the prevention of misconduct and improprieties through the enhancement of professional standards;


• the resolution of disputes about legal fees and costs; and


• the most effective methods for funding an effective complaints system.

In the final chapter, the Commission sets out three competing options for handling complaints against lawyers. Option One leaves the principal responsibilities with the Councils of the Law Society and the Bar Association, but proposes a range of improvements to the existing system. The submissions of the professional associations themselves pointed out a considerable number of flaws and teething problems in the current system, and it is universally accepted that it is not an option for the Commission simply to recommend the status quo. The suggested improvements include: separation of the regulatory responsibilities from the membership responsibilities of the professional associations, in order to increase the actual and perceived independence of the complaints-handling system; taking a more active, thorough approach to the reception and investigation of complaints; the imposition of a time discipline on the system; narrowing the gap between what clients regularly complain about (negligence, incompetence, delay, poor communications, discourtesy and over-charging) and what the profession takes seriously enough to require disciplinary hearings (such as trust account defalcations and repeated acts of gross negligence); and making the external review mechanism (the Conduct Review Panel) more effective.

Option Two represents a major departure from the current system, adapting the health care complaints system to the legal services context. Under Option Two, the Law Society and the Bar Association would lose their central roles in the complaints-handling system, to be replaced by an independent, specialist agency with statutory authority, to be known as the Legal Services Complaints Commission. This Complaints Commission would receive and investigate all complaints against lawyers, and determine which complaints should be sent to the Standards Board and the Disciplinary Tribunal.

Option Three is something of a compromise, vesting the initial responsibility for the reception and investigation of complaints with an independent Legal Services Ombudsman, but leaving the professional Councils with the responsibility for deciding whether particular matters should be dismissed, result in a reprimand, or be referred to the Standards Board or the Disciplinary Tribunal for a hearing. Under this scheme, the Legal Services Ombudsman also would play a key role in the external monitoring of the professional Councils, and generally in raising public awareness of the role of the legal profession and the availability of complaints procedures.