Notice of the reference given to interested parties

2.1 The reference from the Attorney General was received by the Commission in November 1991. As is the Commission’s usual practice upon receipt of a new reference, the Commission contacted a number of bodies, organisations and individuals believed to have an interest in the reference, advised them of the inquiry, and invited them to make preliminary submissions by the end of January 1992. These included the Law Society of New South Wales and the New South Wales Bar Association; various NSW government departments and instrumentalities, such as the Legal Aid Commission, the Crown Solicitor, the Crown Prosecutors, the Director of Public Prosecutions, the Ombudsman, the Ethnic Affairs Commission, the Independent Commission Against Corruption, and the Department of Consumer Affairs; Members of Parliament; academics with an interest in legal ethics and professional regulation and discipline; community legal centres; other law reform agencies in Australia and overseas; and consumer organisations such as the Australian Consumers’ Association and the Law Consumers’ Association.

2.2 The Commission also advertised the terms of reference in the two main metropolitan newspapers and called for submissions. In addition, the Commission contacted various members of the press and advised them that we had commenced an inquiry into the handling of complaints against lawyers. Members of the Commission participated in a number press and radio interviews (both metropolitan and country), which helped to publicise the reference.

Preliminary submissions received

2.3 The Commission received preliminary written submissions from the following organisations and individuals: the Australian Consumers’ Association; the NSW Council for Civil Liberties; the Combined Community Legal Centres; the Crown Prosecutors; the Public Defenders; the Department of Consumer Affairs; the Director of Public Prosecutions; the Law Society of New South Wales; the Lawyers Reform Association; the Legal Profession Disciplinary Tribunal; and the New South Wales Bar Association.

2.4 Prior to the release of the Discussion Paper, submissions were also received from the following individuals: Mr Chris Caley, Mr Gerry Caldwell, Mrs M Chaldecott, Ms Judith Currie, Ms Janet Coombs, Mr David Daws, Mrs A M Duncam, Mr Colin Ellis, Mr John Ferrugia, Professor Joseph Forgas, Mr Don Fraser, Ms Pat Geary, Ms Margaret Geary, Mr D Graham, Mr Barry Hart, Mrs Joan Kelloway, Mrs Maree Lau, Mr Noel McAuliffe, Ms Rose Makaresz, Mr E Mignon, Mr Desmond Miller, Mr C Millman, Ms Elfrida Morcom, Ms Irene Onorati (on behalf of the Building Action Review Group or “BARG”), Mr Keith Peck, Ms Jennifer Ann Rees, Mr Mark Stevens, Ms Erica Studer, Mr Lotfi Towadros, Mr George Taylor, Mrs Patricia Thirup, Mrs V E Troldahl-Weise, Mrs Dorothy White, Mrs Beverley White, Ms Pamela Williams, and Mrs Cheryl Winstanley.

2.5 As noted in Chapter 1, the Commission’s reference followed the Memorandum of Understanding between the Government and the Independents. Prior to the Commission receiving the reference, Mr John Hatton MP gave a number of media interviews in which he discussed the present complaints system. The Commission understands that following these interviews, a number of people wrote directly to Mr Hatton to advise him of their own experiences with the legal profession and the complaints system. Mr Hatton kindly forwarded to the Commission copies of these submissions, from the following individuals: Ms Judith Currie, Ms Margaret Geary, Mr A G Hale (on behalf of the Committee representing former depositors of Bridgeland Securities Limited), Mrs Joan Hales, Mr David Hebden, Mr Roger Ibbotson, Mr R O Kent, Mr Alexander MacDonald, Mr Bryan J Milner, Mr Ian Mitchell, Mr J B Mund, Ms Irene Onorati (on behalf of the Building Action Review Group), Mr Alfred Sauer, and Mr Michael Seymour.

2.6 As the Discussion Paper was not yet available to respond to, those who made preliminary submissions, with the exception of the Law Society and the Bar Association, were generally reacting to the terms of reference. Submissions tended towards a simple statement in favour of either retaining the current system or replacing the current system with a Complaints Unit or an Ombudsman. Both the Law Society of New South Wales and the New South Wales Bar Association were in favour of retaining the current system. However, suggestions were made by both professional associations about the way in which the current system could be improved. Many of the preliminary submissions were considered and cited throughout DP 26.

The Law Society’s preliminary submission

2.7 The Law Society submitted that the current system of resolving complaints was fundamentally sound, subject to the following qualifications:

• The system should be strengthened in terms of accountability and lay review.
• The system should place less emphasis on the adversarial system, and the statutory framework should be amended to allow for more flexibility in achieving redress for complainants.¹

2.8 The Law Society submitted that the deficiencies in the current system could be corrected by:

• replacing the Legal Profession Conduct Review Panel with a full-time and adequately resourced Lay Observer, who would be involved in the complaints and disciplinary process from the outset and certainly at an earlier stage than the Panel;
• fully implementing the scheme which the Law Society had developed for informal dispute resolution; and
• clarifying the powers of the Legal Profession Disciplinary Tribunal, when it makes a finding of professional misconduct, to ensure that it may make the same remedial orders currently available to the Legal Profession Standards Board (in addition to its further, specified powers).²

a number of “micro-reforms” within the existing framework would also bring about improvement, particularly in the areas of quicker disposition of complaints without compromising the right and legitimate expectations of complainants and solicitors.³

These “micro-reforms” were not discussed in detail by the Law Society in its preliminary submission, however, as the Law Society concluded that they were “outside the Terms of Reference of the Commission”. The Law Society advised the Commission that it would be making detailed recommendations to the Attorney General in the future for legislative amendments which would further enhance the performance of the present complaints procedures.⁴

The Bar Association’s preliminary submission

2.10 The Bar Association also submitted that the current system of resolving complaints against barristers was working well. Suggestions were made by the Bar Association about a number of areas within the current system which it believed required change. These suggestions included:

• providing the Bar Council with statutory powers to counsel and fine barristers in certain circumstances;
• providing the Bar Council with statutory power summarily to find against a barrister and make appropriate remedial orders;
• increasing the powers of the Standards Board and the Disciplinary Tribunal, including giving greater flexibility to make protective orders and to deal with matters arising during the course of a hearing;
• merging the Standards Board and the Disciplinary Tribunal or, alternatively, providing that a complaint involving both unsatisfactory professional conduct and professional misconduct may be referred to the Disciplinary Tribunal alone;
• providing the Council with identical powers to make remedial orders regardless of whether the investigation commenced upon the complaint of an individual or on the Bar Council’s own initiative; and
• setting a limitation period on the lodgment of complaints of six months from the time when the complainant first became aware of the conduct complained about.⁵

2.11 The Bar Association also commented upon alternative complaints mechanisms and submitted that:

The establishment of additional structures which are separate and apart from the professional bodies creates tension between the profession and those organisations. They may give an appearance of accountability, but they do so at the expense of quick, effective. protective regulation and dispute resolution.

Whilst it is recognised and accepted that the legal profession must be accountable to the public, the most important consideration must be the effective maintenance and/or improvement of professional standards.⁶

Preliminary submissions received from other interested organisations

2.12 Both the Lawyers Reform Association, the New South Wales Council for Civil Liberties and the Combined Community Legal Centres Group (CCLCG) submitted that there was a need for a complaints body independent of the professional associations.⁷ The Lawyers Reform Association emphasised what it saw as an inherent conflict of interest in the Law Society and the Bar Association simultaneously maintaining representative and (both statutory and non-statutory) regulatory functions.⁸ The Lawyers Reform Association submitted that an independent statutory body based upon the model provided by the Department of Health’s Complaints Unit should be established to investigate complaints against lawyers.⁹ Both the New South Wales Council for Civil Liberties and the CCLCG supported the establishment of a complaints agency or board, entirely independent of the professional associations with appropriately broad powers of investigation.¹⁰

2.13 The Australian Consumers Association also pointed to what it saw as the inherent conflict of interest in the Law Society and Bar Association handling complaints against lawyers:

In trying to protect consumers and regulate the industry, whilst at the same time being the trade association for lawyers, an obvious conflict of interest arises. This has resulted in many consumers lacking confidence in the complaints procedure.¹¹

Preliminary submissions from other members of the public

2.14 As noted above, the Commission received 36 submissions from members of the public in response to the initial publicity given to the Commission’s new inquiry, and the Commission’s call for interested parties to make submissions. In addition, the Commission received 14 submissions passed on by Mr John Hatton MP. Just over a third of the submissions received by the Commission specifically called for the establishment of a body independent of the Law Society and the Bar Association, to investigate complaints made against lawyers. A common theme running through these submissions was the belief that the Law Society and Bar Association failed to investigate complaints properly and were biased in favour of legal practitioners. Many commented that they felt their own complaint had received little recognition from the professional association and that the solicitor’s version of events was accepted over their own without question. Many specifically stated their preference for a Complaints Unit or an Ombudsman.

2.15 Many of the submissions made by members of the public simply drew attention to their dissatisfaction with the handling of their own complaint, or took the opportunity to make a fresh complaint about a lawyer, or criticised the legal profession or legal institutions generally.

DISCUSSION PAPER 26

Purpose of the Discussion Paper

2.16 In May 1992, the Commission released its Discussion Paper Complaints Against Lawyers. This paper dealt only with the first term of the Commission’s reference, principally being the necessity or otherwise for implementing alternative complaint mechanisms.

2.17 The Commission’s purpose in publishing and distributing the Discussion Paper was to provide sufficient background and structure to the issues in order to promote informed debate about the best mechanism for handling complaints about the professional conduct of lawyers. The alternatives expressed in the Paper were presented for the purpose of discussion and did not represent the final views of the Commission. The Commission hoped to elicit submissions from the professional associations, community groups and other interested individuals.

Summary of the Discussion Paper

Chapter 1: Background to the reference

2.18 Chapter 1 of DP 26 provided information on the terms of the reference, the Commission’s previous work on the legal profession, the organisation of the current inquiry, the purpose of the Paper and the outline of the Paper.¹²

Chapter 2: The current system

2.19 In Chapter 2, the Commission described the existing systems in New South Wales for handling complaints against barristers and solicitors under the Legal Profession Act 1987 (NSW). Under this Act, 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, and assess complaints (to decide whether they raise a question of unsatisfactory professional conduct or professional misconduct); to dismiss complaints (fully or with an attached reprimand); and to refer appropriate complaints for hearing before the Legal Profession Standards Board or the Legal Profession Disciplinary Tribunal.¹³

2.20 The Standards Board hears matters involving allegations of “unsatisfactory professional conduct”, while the Disciplinary Tribunal hears more serious allegations of “professional misconduct”¹⁴, for which a legal practitioner may be struck off the Roll.¹⁵ Where a Council dismisses a complaint, the complainant has a right under the Act to have the decision reviewed by the Legal Profession Conduct Review Panel, which has a majority of non-lawyers.¹⁶ The role and functions of other bodies which deal with complaints about lawyers, such as the Consumer Claims Tribunal, also are discussed.¹⁷

Chapter 3: Comparative perspectives

2.21 As part of its research program, the Commission also examined other complaints handling systems operating with respect to lawyers in the other Australian states and territories.¹⁸ Special attention was focused on the lawyers’ complaints system operating in Victoria. Although the Victorian system is broadly similar to the one in New South Wales in so far as the professional associations have wide statutory powers to receive and investigate complaints, the actual procedures in Victoria differ in two main respects.¹⁹

2.22 First, the professional bodies in Victoria (the Law Institute and the Bar Council) have the statutory power to examine not only complaints about professional conduct but also disputes between client and lawyer. This is not the case in New South Wales, where the legislation directs the Law Society and Bar Association to examine and deal with only those complaints that raise issues of professional conduct. Secondly, the Victorian legislation provides for the office of Lay Observer. The Lay Observer’s functions and powers are broader than the external monitor in New South Wales - the Legal Profession Conduct Review Panel - in that the Lay Observer may, upon request, examine and investigate the manner in which any complaint has been investigated by the professional association. Unlike the Panel, the Lay Observer is not limited to reviewing only Council decisions to dismiss a complaint.

2.23 The Commission also studied (and described in Chapter 3) the disciplinary systems operating in respect of barristers and solicitors in England and Wales.²⁰ In the past two decades the regulation and discipline of the legal profession has received close attention in the United Kingdom, with a succession of official inquiries leading to major legislative reforms in 1990.²¹ In January 1991, the Office of the Legal Services Ombudsman was established. The main function of the Office is to review the way in which complaints have been handled by the professional associations. Chapter 3 also examined recent initiatives of the Law Society of England and Wales, including the administrative segregation of its complaints-handling function through the establishment of the Solicitors’ Complaints Bureau, the markedly increased use of conciliation, and efforts at restructuring legal practices to prevent disputes through the “Client Care” program.

2.24 Lawyer discipline in the United States has been the recent subject of a major study and report by the American Bar Association’s Commission on the Evaluation of Disciplinary Enforcement, and the American Bar Association has developed a set of Model Rules for disciplinary systems. In Chapter 3 of DP 26, the Commission briefly examined the American position, with particular focus on the system operating in the State of California.²²

2.25 As part of its comparative analysis the Commission also considered the operation and structure of the New South Wales Department of Health’s Complaints Unit.²³ In 1984, the Complaints Unit was set up administratively within the Department of Health in response to pressure from consumer and community organisations. This Unit has the power to investigate complaints against health care service providers (including doctors) in New South Wales. The Commission was especially interested in the Complaints Unit as a model because, in contrast to most of the other complaints handling systems studied, the Unit is quite independent of the practising profession and the main professional association (the Australian Medical Association).

Chapter 4: Common issues and proposals

2.26 In Chapter 4, the Commission examined common issues and problems in the handling of complaints against lawyers, and suggested a number of possible improvements.²⁴ These proposals were made on the basis that they were not necessarily contingent upon the retention or adoption of any particular regulatory model, but rather were generally applicable to all complaints-handling systems. Among the key questions which the Commission considered were:

• the introduction of a Complainant’s Charter of Rights²⁵, which would include guarantees about effective access to the complaints-handling system,²⁶ immunity from civil liability,²⁷ the right to appear before any hearing of the complaint,²⁸ and the right to be kept fully informed of the status and progress of the investigation of the complaint;²⁹
• the encouragement of the consensual resolution of disputes between lawyers and clients, including fees and costs disputes³⁰ (while remaining sensitive to the likely imbalance of power between the parties and the need for independent, qualified mediators);³¹
• the nature, composition and operations of the Standards Board and the Disciplinary Tribunal;³²
• issues of confidentiality and the protection of communications made in the course of lodging or processing a complaint;³³
• the prevention of misconduct and impropriety through education and other methods aimed at the enhancement of professional standards;³⁴ and
• the most appropriate methods for funding an effective complaints system.³⁵

Chapter 5: Three options for regulatory reform

2.27 In Chapter 5, the Commission put forward three competing options for the regulation of the legal profession, with the aim of focusing debate. Option One involved retention of the existing complaints system (that is, the principal responsibilities of the complaints system would remain with the Councils of the Law Society and Bar Association), but with a range of important improvements. These included:

• segregation 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;³⁶
• requiring the professional associations to provide more advice and assistance to complainants (and potential complainants), including the provision of explanatory brochures and other material in plain English, and the provision of greater assistance to those from non-English speaking backgrounds;³⁷
• requiring the professional associations to undertake a much more active and thorough investigation of complaints;³⁸
• the imposition of a time discipline on the system, in order to reduce substantially the time between the lodgment of complaints and their final disposition;³⁹
• narrowing the gap between the type of conduct by lawyers which is regularly complained about (negligence, incompetence, delay, poor communication, discourtesy and over-charging) and the matters which the legal profession takes seriously enough to require a disciplinary hearing (such as trust account defalcations and other acts of dishonesty);⁴⁰ and
• strengthening the external (lay) review mechanisms (the Conduct Review Panel) to provide more independent oversight of the activities of the professional Councils in this area.⁴¹

2.28 The preliminary submissions of both the Law Society and the Bar Association themselves pointed out a considerable number of flaws and problems in the current system of handling complaints. The Commission commented in the Discussion Paper, on the basis of these preliminary submissions and the Commission’s own research, that these widely acknowledged problems meant that leaving the system completely unchanged could not be an option.⁴²

2.29 Option Two represented a major departure from the current system in that an independent Legal Services Complaints Commission would take over the functions and powers currently exercised by the Law Society and the Bar Association Councils in respect of the handling of complaints. In framing this Option, the Commission used the structure and operation of the Department of Health’s Complaints Unit (and the plans to turn the Unit into an independent statutory authority) as a model. Under this Option, the Complaints Commission would be responsible for receiving and investigating all complaints relating to the provision of legal services. At the conclusion of its investigation, the Complaints Commission would itself determine whether or not to dismiss the complaint, refer a matter for mediation, or send the matter to one of the statutory disciplinary bodies for a formal hearing.

2.30 Option Three provided for the establishment of an independent Legal Services Ombudsman. Although the Ombudsman would handle the receipt and investigation of complaints, the Councils of the Law Society and Bar Association still would have the responsibility for deciding whether particular complaints should be dismissed, result in a reprimand or be referred to one of the disciplinary bodies for a hearing. Under this model, the Ombudsman also would play a key role in the external monitoring of the professional Councils, in that the Ombudsman would be free to attend any Council or complaints committee meeting. In addition, the Ombudsman would have the responsibility for generally raising public awareness of the complaints mechanism.

SUBMISSIONS RECEIVED IN RESPONSE TO DP 26

The range of submissions

2.31 Following the release of the Discussion Paper, submissions were received from the following: the Australian Consumers’ Association; the Centre for Legal Education; the Chelmsford Victims Action Group; the Chief Magistrate of New South Wales, Mr Ian Pike; the Commissioner for Consumer Affairs, Mr John Holloway; the Director of the Community Justice Centres, Ms Wendy Faulkes; the Kingsford Legal Centre; the Law Society of New South Wales; the Legal Profession Conduct Review Panel; the New South Wales Attorney General’s Department; the New South Wales Bar Association; the Foundation Dean of the School of Law at the University of Wollongong, Professor Jack Goldring; and the Registrar of the Legal Profession Disciplinary Tribunal, Mr Robert Bennett. In addition, submissions were received from the following individuals: Mr A Bond-Hughes, Ms Janet Coombs, Mrs Judith Currie, Mr David Daws, Ms Genevieve Dennis, Mr Jo Fagan, Ms Pat Geary, Mr Paul J Kellahan, Mr Robert O Kent, Mr W A Kuestler, Mr D Miller, Mr Grant MacDonald, Ms Rose Makaresz, Mr Gordon Palmer, Ms Lorraine Smith, Mr Douglas & Miss Daphne Taylor, Mr George Taylor, Mr Michael Winter, Mr Peter Wolfe, and Mr Peter Wood.

The Law Society’s submission

2.32 The Law Society of NSW stated in its submission that the dual objectives of a complaints system, being the protection of consumer interests and maintenance of professional standards, would best be achieved by retaining the current complaints system. In its submission, the Law Society claimed that DP 26 did not contain evidence indicating the need for any substantial change to the present system, and that in proposing:

changes of substance, the Commission [had] relied on speculation as to the public perception of bias echoed in the political pact which originated the inquiry⁴³

The Law Society also submitted that:

proposals for radical change of a system which, generally, is working well are an unnecessarily severe reaction to a situation defined only by reference to intuitively based perceptions.⁴⁴

2.33 The Law Society’s reasons for defending the current arrangements could be summarised as follows:

• an independent legal profession is an essential safeguard of our constitutional system. Regulation of its members’ professional conduct is a necessary element of this independence as well as being an inherent characteristic of one of the great professions serving the community;
• the Law Society’s disciplinary functions are part of, and at the same time shape and influence, the Society’s other functions;
• because of its other functions, the Society has an interest in dealing directly and promptly with complaints affecting solicitors’ practising certificates;
• the Law Society’s disciplinary function is exercised in the joint interests of the community and the profession;
• the current system has demonstrated its general soundness and efficiency since it came into effect in January 1988; and
• it has substantial participation from non-lawyers, and thus external or public accountability.⁴⁵

2.34 In its submission in response to DP 26, the Law Society reiterated many of the comments it had made in its preliminary submission. The Society supported greater use of mediation of disputes; it sought discretion to refrain from referring a complaint to the Standards Board where the complaint had been withdrawn. With respect to the Legal Profession Conduct Review Panel, the Law Society restated its previous proposal that the Panel should be replaced with a Lay Observer.⁴⁶

2.35 Unfortunately, the Law Society’s submission failed to deal with a large number of the issues and proposals raised in DP 26. However, four days after the Law Society made its submission to the Commission in response to DP 26, the Law Society wrote to the Attorney General directly, making a number of specific proposals for amendments to the Legal Profession Act 1987. The Attorney General forwarded a copy of the Law Society’s proposed reforms to the Commission, and the Commission has treated these proposed reforms as being in the nature of a further submission from the Law Society.

The Bar Association’s submission

2.36 The NSW Bar Association advised the Commission that it was in favour of retaining the current system but with a number of improvements, including:

• effecting the merger of the Standards Board and Disciplinary Tribunal;
• providing the complainant with the right to attend all hearings;
• expanding the powers of the Bar Council in relation to the issuing, placing conditions upon, and the withdrawal of, barristers’ practising certificates;
• providing for the possibility of joint sittings of the Board and the Tribunal (if these bodies are not merged) in cases where the complaint relates to both a solicitor and a barrister;
• clarifying the standards for referral of complaints for hearing; and
• providing the Review Panel with more adequate resources to review fully the handling of dismissed complaints.⁴⁷

2.37 The Bar Association submitted that the introduction of a Complaints Commission would be unwise and inappropriate.⁴⁸ One of the reasons given by the Bar Association for its view was that “external policing of the profession by a complaints unit would be incompatible with achieving the high standards of behaviour that are obtained through successful regulation”.⁴⁹ In addition, the Bar Association submitted that a Complaints Commission for lawyers could not function as effectively as the existing system, and that it would be more costly, less accountable and less open to public scrutiny than the current system.⁵⁰ Similarly, the Bar Association submitted that a Legal Services Ombudsman would be likely to encounter many of the difficulties experienced by a Lay Observer (as raised by the Commission in DP 26 when discussing the Law Society’s proposal).⁵¹

Submissions received from other interested parties

2.38 Common among many of those organisations that made submissions to the Commission was the concern over the dual roles of the professional associations and what they saw as the resulting conflict of interest. Many called for the establishment of a complaints system entirely independent of the Law Society and the Bar Association. For example, the Kingsford Legal Centre noted in their submission that:

There is a very real danger of a failure of impartiality in the present self-regulating, peer-review system. The legal profession, like the medical profession, is collegiate in nature. This may result in a reluctance to investigate or censure a colleague or a potential colleague.⁵²

and further:

We disagree that mere separation of the disciplinary function from the membership function and physical separation of the complaints handling unit from the professional body, as suggested [in DP 26, at 146], is sufficient to allay public disquiet. We agree that the “most effective way to ensure actual and perceived independence and integrity of the disciplinary process is to remove the responsibility for reception, investigation and assessment of complaints from the legal professional association, and to place that responsibility in the hands of an independent commission.” (in DP 26, at 170).⁵³ [Emphasis in the original]

2.39 Similarly, the Chief Magistrate of New South Wales, Mr Pike, was critical of the dual functions of the Law Society and the Bar Association and called for the establishment of an independent body:

generally speaking, bodies which investigate their own members, even if the investigating authority has a token “outsider”, fail to respond as effectively as some independent body or person.⁵⁴

2.40 The issue of mediation featured prominently in many submissions, including those of the Registrar of the Disciplinary Tribunal, Mr Bennett,⁵⁵ and the Chairperson and members of the Conduct Review Panel.⁵⁶ The Commissioner for Consumer Affairs, Mr Holloway, submitted that any dispute resolution process should address the fact that the average consumer of legal services feels intimidated by the legal profession and the court system.⁵⁷ Kingsford Legal Centre agreed with the Commission that there was a role for mediation in appropriate cases, such as those in which a complaint relates to a failure in communication or to some aspect of the quality of the service provided. The Centre maintained, however, that care should be taken to pursue all cases involving professional misconduct or unsatisfactory professional conduct, even when an individual complainant regards his or her complaint as settled.⁵⁸

2.41 Submissions critical of an independent legal services complaints commission being modelled on the Department of Health’s Complaints Unit were received from Mr Barry Hart, representing the Chelmsford Victims Action Group, and from Mr Tom Benjamin, representing the Medical Consumers’ Association. Both organisations have made submissions to the Law Reform Commission outlining what they believe are deficiencies in the current operations of the Complaints Unit and the Bill which provides for the establishment of an independent Health Care Complaints Commission.

Submissions from other members of the general public

2.42 Common concerns expressed in the submissions made by individuals were about:

• the degree and quality of assistance provided to complainants by the professional associations;
• the need for the complaints system to be re-oriented towards the needs of the complainant;
• the need for a higher public profile for the system through increased publicity;
• the need for the use of plain English in the literature and correspondence, as well as greater assistance for persons from non-English speaking backgrounds; and
• the perceived bias in favour of the lawyer in the complaints handling system.

2.43 Support commonly was expressed for the Commission’s proposal of a “Complainants’ Charter of Rights” and a “Code of Conduct” for lawyers. Of those who specifically mentioned a preference for one of the Options described in DP 26, three were in favour of an independent Legal Services Complaints Commission and one favoured the Legal Services Ombudsman. All those who made submissions clearly desired the system to be changed in some way.

INTERVIEWS AND CONSULTATIONS

2.44 In addition to the submissions received by the Commission, material and assistance was provided to the Commission by the following organisations and individuals: Ms Merrilyn Walton, Director of the NSW Department of Health’s Complaints Unit; Mr Gerry Glennan, Director of Professional Standards of the Law Institute of Victoria; Mr Justin O’Bryan QC, Secretary of the Ethics Committee of the Victorian Bar Council; Mr John Hatton MP; Mr Brian Pezzutti MP; Mr Malcolm Kerr MP; Mr Max Burgess, of the Law Consumer’s Association; Ms Wendy Faulkes, Director of the NSW Community Justice Centres and member of the Insurance Industry Complaints Council; the New South Wales Ombudsman’s Office; the NSW Independent Commission Against Corruption; the Office of the Commonwealth Ombudsman; Mr Graham McDonald, the Australian Banking Industry Ombudsman; Mr Robert Funke, of Standards Australia; the federal Trade Practices Commission; Ms Jan King, the Lay Observer in Victoria; Ms Catherine Weaver, Registrar of the NSW Consumer Claims Tribunal; the Public Interest Advocacy Centre (PIAC); the Chairperson and members of the Conduct Review Panel; the Commonwealth Attorney General’s Department’s Practice Development Support Group; Mr Mark Paterson, of the NSW Retail Traders Association; Ms Clare Petre, then of the Intellectual Disability Rights Service, Redfern Legal Centre, now of PIAC; Mr Lindsay Ford, of the firm Juliano Ford & Co in Victoria; Mr Phillip Kirby, Senior Registry Officer, NSW Prothonotary’s Office; Professor David Flint, Dean of Law of the University of Technology, Sydney; Mr Gill Boehringer, Head of the School of Law, Macquarie University; Professor Jack Goldring, Foundation Dean of Law, University of Wollongong; Professor Neil Rees, Foundation Dean of Law, University of Newcastle; Professor Michael Chesterman, Dean of Law, University of New South Wales; Mr Christopher Roper, Director of the Centre for Legal Education; Mr Peter Wilmshurst, formerly of the NSW Department of Consumer Affairs, now at Macquarie University Law School; Mr Keith Taylor, of the NSW College of Law; the various Law Societies and Bar Associations in each Australian State and Territory; Mr Raymond R Trombadore, Chairman of the American Bar Association’s Commission on the Evaluation of Disciplinary Enforcement; the Law Society of England and Wales; Ms Sue Wrigley, the Policy Adviser to the Solicitors Complaints Bureau (England and Wales); the office of the Legal Services Ombudsman (England and Wales); and senior officials of the English Bar, including Mr Williams QC, the Chairman of the Bar Council, Mr Carlisle QC, the Chairman of the Professional Conduct Committee, and Mr James, the Secretary of Committee.

OTHER CONSULTATION EFFORTS

2.45 Early on in the life of this reference, the Commission made applications to the Attorney General and to the NSW Law Foundation for funding grants which would enable⁵⁹ the Commission to: (1) undertake inter-state and overseas travel for the purposes of consulting about new disciplinary systems in place in other similar jurisdictions, and (2) retain as a consultant an expert in management and organisational behaviour, with particular expertise in the assessment and design of complaints systems. Unfortunately, these applications were unsuccessful.

2.46 However, one of the members of the Division, Mr Justice Brownie, made a private visit to the United Kingdom in July 1992, and kindly undertook to make inquiries and collect material on the Commission’s behalf, so that we could better understand the new system in place in England and Wales since the enactment of the Courts and Legal Services Act 1990 (UK). Justice Brownie had the opportunity to meet with many of the key officials in the disciplinary systems operated by the Law Society of England and Wales and the Professional Conduct Committee of the Bar Council as well as collecting a considerable amount of relevant literature.

THE UNSUCCESSFUL ATTEMPT TO SURVEY THE SATISFACTION OF COMPLAINANTS AND RESPONDENT LAWYERS WITH THE CURRENT COMPLAINTS HANDLING SYSTEM

2.47 The terms of reference for this inquiry require the Commission to inquire into “the necessity for implementing alternative mechanisms to those presently existing to deal with complaints about the delivery of legal services to the public”. The Commission considered that in determining whether or not this “necessity” exists, it would be very helpful to have the benefit of the attitudes, perceptions and experiences of people - both complainants and respondent lawyers - who actually had been through the complaints handling process in recent times. The Commission was fortified in this view by the fact that the Solicitors’ Board in Victoria (with the cooperation of the Law Institute of Victoria and the Victorian Lay Observer) and the Solicitors Complaints Bureau of the Law Society of England and Wales had themselves recently initiated and publicised similar surveys,⁶⁰ and that this also occurs in the North American legal professions.

2.48 After some informal discussions, the Commission first wrote to the then President of the Law Society, Mr John Marsden, on 15 June 1992, formally proposing that a survey be undertaken to assess the level of satisfaction of complainants and respondent lawyers (for the year 1991) with the Law Society’s complaint handling system, and asking for the Law Society’s cooperation in such a project. (The names and addresses of complainants and respondent lawyers are held by the Law Society, and are otherwise unavailable to the Commission,) A similar letter was written to the President of the Bar Association, Mr John Coombs QC.

2.49 The Bar Association quickly acceded to the Commission’s proposal, subject to later confirmation of the details and logistics of the survey. The Commission’s dealings with the Law Society, however, were quite protracted and, to the Commission’s grave disappointment, ultimately unsuccessful.

2.50 The Law Society initially rejected the survey out of hand, on the basis that:

the communications between complainants, the Society and the solicitors the subject of complaints, should be entitled to immunity from production on the grounds of public interest, and that informants and complainants to the Society may not be so willing to come forward unless their confidence is respected and protected.⁶¹

2.51 The Commission accepted the need for sensitivity in such matters, but pointed out that: (1) the Commission had attended meetings of the Law Society’s Professional Conduct Committee and Council, at the Law Society’s invitation, which involved consideration of confidential matters; and (2) the Law Society had readily and without reservation agreed to allow the Commission to conduct a survey of its 1991 complaint files, without expressing similar concerns about confidentiality. In any event, the Commission proposed that the Law Society could handle the mechanics of posting and receipt of the survey forms, which would themselves would not contain or request any identifying material, so that the Commission would not need a list of names and addresses and anonymity could be assured.

2.52 However, over the next five months, the Law Society Council imposed an increasing number of hurdles to be overcome before it would accede to any request for a survey. Among other things, and at various times, the Law Society Council insisted that:

• the Commission retain a specified consultant to help design and carry out the survey;
• there be no survey of complainants unless there was also a survey of respondent lawyers;
• that the Commission bear all of the costs of the administration of the surveys, including all of the work done by Law Society employees in posting and receiving the survey forms, etc; and
• that the Commission simultaneously survey a “control group”, which the Council proposed to be the complainants and respondents dealt with by the Department of Health’s Complaints Unit during the same period;
• the Commission first conduct a “pilot study” before it undertakes the larger survey;
• the particular questionnaire designed by the Commission - and refined with the advice of the nominated consultant - was unacceptable.

2.53 The Commission was happy to accede to the first demand and, as suggested by the Law Society, retained Mr John Schwartzkoff of MSJ Keys Young as the consultant to advise on survey design and administration.⁶² The Commission agreed that a survey of respondent lawyers was desirable, but had doubts about our ability to fund this ourselves and proposed that the Law Society might wish to underwrite this survey itself. The Commission noted that the Law Society regularly surveyed its membership on other matters, such as “current trends in management and marketing issues facing the profession in the 1990s”,⁶³ out of its own resources. The Commission was of the opinion that this funding could come out of the Statutory Interest Account, if necessary, as it related to the Law Society’s statutory responsibilities for the regulation and discipline of solicitors. In any event, the Commission also offered to support an application by the Law Society to the Attorney General for special funding for this purpose. (The funding issue was rendered moot when the Commission determined that there was no realistic prospect of the survey eventuating. See below.)

2.54 The Commission also had concerns about being asked to provide an undertaking to pay the Law Society for the cost of the routine clerical tasks involved in the administration of the survey of complainants, such as addressing and stuffing envelopes and collecting replies. Mr Schwartzkoff advised the Commission and the Law Society that this work would involve, at the very most, a total of about 2-3 days of one clerk’s time.⁶⁴ Although it seemed to excite considerable anxiety in the Law Society’s officers, the Commission regarded this as a relatively minor issue which could be sorted out if there was general agreement to proceed with the survey. However, the other demands by the Law Society Council represented more significant sticking points.

2.55 The Law Society Council persisted with the demand for a “control group” survey although it seemed to recognise that the organisation of another major survey of complainants and respondents in a different profession’s system (under the Health Complaints Unit) presented almost insurmountable practical difficulties. The Commission would have to negotiate a whole new set of permissions with various health care regulatory authorities (at a time when legislation turning the Complaints Unit into an independent, statutory, commission was pending in Parliament⁶⁵), design another questionnaire, come up with funding for this exercise, and so on.

2.56 Mr Schwartzkoff informed the Commission and the Law Society that, in his professional opinion: (1) there is no control group in the circumstances of the proposed survey, as the results of a separate questionnaire about perceptions of a different system of complaints handling would yield little in the way of comparability;⁶⁶ (2) undertaking a survey of another system would be long and difficult in practice, for little result; and (3) it would be better in any event to spend the time and effort looking for existing comparative research involving other surveys of legal complaints processes. The Council’s insistence on this point sits oddly with its own earlier submission to the Commission, that:

Whether the Medical Complaints Unit is judged to have worked effectively or not, that Unit’s experience is not a reliable guide to the anticipated benefits which might be derived from a similar unit applied to the regulation of the legal profession. The two professions are totally different in their functions and in the nature of the roles which they play in the community.⁶⁷

2.57 The Commission also failed to see the need for a “pilot study” to test the questionnaire and the protocol for administration, on the basis that this procedure would lead to unnecessary delay and expense for little benefit. Mr Schwartzkoff expressed the strong view that, while they can sometimes be quite useful, in these particular circumstances a pilot study was not needed, because: (1) the proposed questionnaire was “short and simple”, “the issues are well-defined”, and no significant problems were anticipated which would necessitate a dry run; (2) a pilot study would add to the administrative requirements and costs of all concerned; (3) pilot studies were more common with face-to-face or telephone surveys, where the study could be done quickly, but would take at least five weeks for a postal survey such as ours; and (4) the main thing we would learn from a pilot would be the response rate (which we would learn from the actual survey anyway), but we would not be likely to learn anything very significant about how people will answer.

2.58 Finally, the Commission had little success in gaining the approval of the Law Society to the particular questionnaire, despite a considerable number of meetings for this purpose. Essentially, the Law Society objected to most of the factual questions (eg whether the person used a complaint form, whether a complaint was made to another body as well, whether compensation was requested, the disposition of the complaint, whether the person sought review of a dismissal) on the basis that this information could be obtained from a survey of the Society’s complaints files, and objected to most of the attitudinal questions (eg was the person satisfied with the level of assistance received, with the reasons provided for the disposition, with the result obtained, etc), apparently on the basis that most complaints are dismissed so that most complainants are likely to register dissatisfaction.

2.59 The “guts” of the proposed questionnaire from the Commission’s point of view was a series of 13 propositions (some phrased in the negative, some in the positive) about the complaints procedure and the person’s experience of it, with the complainant asked to express a view ranging from strong agreement through to strong disagreement (the standard Guttmann scale used in most attitudinal surveys).⁶⁸ To the Commission’s amazement, the Law Society over time systematically objected to all of the negative propositions (eg, “I felt uneasy in complaining about my solicitor to the Law Society”, and “Involving the Law Society in my complaint was a waste of time”), but had no problem at all with the positive propositions (eg “Staff at the Law Society generally treated me in a courteous and professional manner”, and “On the whole my complaint was handled promptly and efficiently”).

2.60 The Commission was willing to make some modifications to gain approval, but there seemed to be little room left for accommodation without destroying the integrity of the survey. Mr Schwartzkoff’s advice to the Commission and to the Law Society was that, if anything, this set of propositions was “not provocative enough or negative enough. This is as soft and positive as they can possibly be without making it seem to be a complete 'put-up job' ”.

2.61 The Law Society also strongly objected to another proposed question in which persons surveyed would be asked to express a view, based on their experience, about the best method for handling complaints against lawyers in future (based on the three options for reform presented in DP 26).⁶⁹ The Law Society’s position was that such a question was quite inappropriate, and perhaps even improper, as the question was one for the Commission to decide. The Commission’s position was that: it was open to us to ask the question; we would be interested in the responses from people with experience of the existing system; the same question has been used in surveys about legal complaints handling processes in other jurisdictions without apparent trauma; and this was no more nor no less than a part of the Commission’s general obligation to consult with and ascertain the views of affected parties and persons with special experience or expertise.

2.62 Despite the Commission’s clear assurances to the contrary, the Law Society Council apparently took the view that the results of the survey of complainants would be treated as a referendum on the future of the complaints handling system, and that this was a referendum that they were certain to “lose”. The Commission was disturbed at the attitude of the Law Society Council towards the integrity and intelligence of complainants implicit in its unwillingness to permit the Commission to consult with such persons.

2.63 The Commission’s firm conclusion was that it could never hope to gain the cooperation of the Law Society Council to a timely and proper survey, and the Chairman of the Commission wrote to the President of the Law Society on 20 October 1992 that “the Commission, although disappointed that it will not have this valuable information, sees no purpose in pursuing the matter further.”

2.64 Although the Bar Association still seemed amenable to a survey of its complainants, the Commission decided not to proceed with this in the absence of a Law Society survey. The number of complaints against barristers annually is so small that, given the typical response rate for postal surveys, the results could not be of any statistical significance and would not warrant a “stand alone” project.

2.65 The final version of the Commission’s proposed survey of complainants (in relation to solicitors) prepared by the Commission in consultation with Mr Schwartzkoff is included as Attachment “A” of this Report. (The survey would have to be modified somewhat for the survey of respondent solicitors, and for the survey of the handling of complaints about barristers.) The Commission hopes that this draft may provide the basis for a future survey, and we make a positive recommendation in this Report that participants should be surveyed routinely to help ensure the quality of, and public confidence in, the complaints handling system.

THE OMNIBUS (PUBLIC OPINION) SURVEY OF ATTITUDES TOWARD THE REGULATION OF THE LEGAL PROFESSION

2.66 The Commission had considered for some time the benefits of conducting an Omnibus Survey (or public opinion poll) of the state of public knowledge about, and attitudes toward, the handling of complaints against lawyers. After the Commission concluded that the actions of the Law Society would not allow a survey of complainants to go ahead, it was decided definitely to proceed with the Omnibus Survey.

2.67 The Roy Morgan Research Centre was commissioned to conduct the Omnibus Survey, and after some discussion involving the Commission, the Centre and Mr Schwartzkoff, the following three questions were settled upon:

A. To the best of your knowledge, who is mainly responsible for dealing with complaints against lawyers? [Open-ended question]

B. In New South Wales, complaints against lawyers are normally dealt with by the Law Society or Bar Association. As well as helping to regulate the legal profession, the Law Society and the Bar Association are the professional associations which represent solicitors and barristers. Some people have suggested that complaints against lawyers should be handled by the Law Society and Bar Association, as now. Other people have suggested that complaints should be handled in other ways. Looking at the next card, which one line best describes who you believe should deal with complaints against lawyers? [Circle only once.]

C. Look at the next card. If a new body were established to investigate complaints against lawyers, which one line best describes who you think that body should consist of? [Circle only once]

2.69 Only one-third (32.6%) of respondents could correctly identify the Law Society and Bar Association as the bodies with primary responsibility for handling complaints against lawyers. Almost 40% would not venture an answer; 19% thought it was the responsibility of the Ombudsman; and the rest incorrectly identified a number of other agencies, such as the Department of Consumer Affairs (2.7%), the Attorney General’s Department (1.5%) and the Independent Commission Against Corruption (1.2%). Older (over-35), male, urban, and tertiary-educated respondents were somewhat more likely to know about the regulation of lawyers, although only affluence (income over $40,000) correlated reasonably highly (55%) with accurate knowledge of the system - probably because of higher levels of social and professional contact with lawyers.

2.70 Only 16% of respondents believed that the Law Society and the Bar Association were the best bodies to handle complaints against lawyers. Nearly 80% wanted regulation by a public authority independent of the legal profession: 54% opted for “a Commission or Ombudsman”, 16%. supported “a government body”, and 9% wanted “a body controlled by judges and the courts”.⁷⁰

2.71 Assuming the establishment of a new body to investigate complaints against lawyers, few considered that the body should consist of lawyers only (5%) or mostly lawyers (10%). Over 80% thought that the new body should consist of equal numbers of lawyers and non-lawyers (46%), mostly non-lawyers with some lawyers (25%), or non-lawyers only (10%).⁷¹ Respondents with a tertiary education were most in favour of a Commission or Ombudsman, and most likely to restrict the participation of lawyers in any new body.

THE COMMISSION'S SURVEYS OF THE COMPLAINTS FILES OF THE LAW SOCIETY AND THE BAR ASSOCIATION

The general nature and purpose of the surveys

2.72 The Commission is pleased to say that we enjoyed the full cooperation of the Law Society and the Bar Association in undertaking a survey of complaints files in late October and early November 1992. It was decided that it was most appropriate for the Commission to look at complaints made in 1991, as virtually all of these would have been finalised by the time of the survey. In the case of the Law Society, the Commission requested to see every fourth file, and after two full days of work (by six members and staff of the Commission) we had gone through 144 separate files in detail (and scanned a number of others), which took us through the first six months of 1991. In the case of the Bar Association, the Commission was able in the course of one day’s work to get through nearly half (37 out of 80) of all the complaints made in 1991.⁷²

2.73 The purpose of the Complaints Files Survey was partly to gain some reliable empirical data about the complaints handling system, but more so to form a general impression of the actual operations and effectiveness of the current system of complaints handling. The Commission recognises that there are some limitations with a survey which does not include every file for the relevant and which looks only at the documentary record. However, we believe that the sample size was large enough and the run of matters representative enough to permit us to gain a strong impression of the way complaints are processed - particularly when this survey is taken together with the submissions, the Commission’s attendance at meetings of the Law Society’s complaints committee and Council, and other research and consultation efforts.

2.74 The Commission’s investigators were directed to note such matters as: (1) the time taken to complete the investigation of the complaint; (2) the level of assistance provided to complainants; (3) the nature of the conduct complained about (eg, negligence, discourtesy, failure to account for trust funds); (4) the subject area of the legal services provided (eg, family law, conveyancing, accident compensation); (5) the nature of the respondent lawyer’s practice (sole practitioner; small, medium or large firm; or barrister) and its location (Sydney City, Sydney suburban, or country); (6) the method(s) of investigation employed; (7) the disposition of the complaint (eg, withdrawn, dismissed, referred to the Disciplinary Tribunal); (8) any subsequent action (eg, application for review by the Conduct Review Panel); and (9) any other comments about the handling of the matter. It was not intended that the files be reviewed for the purpose of re-investigating the complaints nor to re-assess matters on the merits.

The survey of Law Society complaints files

Time taken for processing

2.75 Of the 144 files, 32 took more than six months to close (22%), 14 took more than twelve months (10%), and eight (5.5%) were still open. (Some of the open matters had been referred to the Standards Board or the Disciplinary Tribunal for a hearing). Thus well over a third of complaints took more than six months to be dealt with, the period after which complaints are deemed to be dismissed (for the purposes of seeking a review by the Conduct Review Panel) under the provisions of the Legal Profession Act 1987 (“the Act”). Many other files were closed just inside six months. Although there now appears to be a greater concern to process matters more quickly, some ordinary complaints, which are ultimately dismissed or closed by consent, seem to take an inordinate amount of time to process. Some files contain inexplicable delays or gaps of many months, and a few simply seem to have “got lost in the system”.

Assistance to complainants

2.76 General assistance. It was difficult to assess the level of assistance provided to complainants from the face of the files, which rarely contained any discussion of this matter. It was noticeable, however, that only 30 of the 144 complaints were made using the Law Society’s form designed for this purpose. In most cases complainants wrote directly to the Law Society, and this letter was taken to be the formal complaint. The complainants would routinely be sent the Law Society’s Explanatory Brochure, but there did not appear to be a great effort to help complainants re-define their complaints (which tend to be made using general language) using legal concepts or in accordance with the requirements of the Act. In technical terms, these complaints often compare poorly with the carefully crafted responses made by the lawyers complained about.

2.77 For example, in one matter the Law Society’s legal officer wrote a File Note saying that “In view of the rather cryptic nature of the complaint, I wrote to the solicitor seeking his general comments in the matter”. The legal officer did not write to or phone the complainant in an attempt to decipher the “cryptic” allegations, however.

2.78 Because most complainants start with little or no knowledge of the nature of the disciplinary system, and gain little understanding from their brief dealings with the Law Society, it appears to the Commission that they often have unrealistic expectations of how their complaints will be handled and the results which are likely to be obtained. Most complainants seem to assume that their initial letter is only the point of departure, rather than the final act, for making a formal complaint. Such letters commonly conclude with words to the effect of: “I look forward to being able to discuss the whole matter with you in greater detail”. However, further discussions actually are rare, and the initial letter is given a legal significance by the Law Society which was not intended or anticipated by its author.

2.79 Assistance to non-English speakers. In about 10 per cent of cases it seemed that the complainant had a poor command of the English language. (The number of potential complainants who did not proceed at all because of the lack of interpreter and other services cannot be determined, as no records are kept of inquiries which are not followed up by a formal complaint.) It did not appear that special assistance commonly was provided for persons with poor English, but it was difficult in this sort of survey to determine whether further assistance was necessary or would have made any difference in the handling or outcome of the complaint. In one matter, an offer was made by the Law Society’s legal officer to receive correspondence from the complainant in Italian, although it was specified that English was preferred.

2.80 Requests for compensation. The Act requires that the complainant specifically request compensation in the original complaint if this is to be considered later by the Standards Board or the Disciplinary Tribunal. The Law Society’s Complaint Form sets this out (including the four compensatory options) clearly, but only 30 out of 144 complainants (21%) actually used the form. The Explanatory Brochure also discusses the need for the specific request, but there is nothing in the letter back to complainants which alerts them to this issue in particular. It appears that those complainants who happen to use the form are more likely to request compensation than are the others.

2.81 There is also some doubt about what “compensation” means in the circumstances. Where a “third-party” complaint (ie, outside the lawyer-client relationship) alleges that the solicitor hasn’t paid his or her bills, is this a request for compensation? The term “compensation” may not be clear to all lay persons, as well, so that direct assistance is required beyond the provision of literature. For example, one complainant wrote to the Law Society stating that he was “not making a claim for compensation. My claim is for money I consider I am entitled to.”

2.82 Clearly more resources and attention need to be devoted to the early stages (assistance and advice, reception of complaints) of the complaints handling process.

The demography of complaints

2.83 Types of conduct complained about. In terms of the type of conduct complained about, the largest categories of complaints were (in order): unreasonable delay (33 complaints); negligence or poor quality of work (31); no or poor communications (29); failure to carry out instructions (28); overcharging (26); conduct or standards breach (23); failure to account (14); failure to transfer documents/solicitor’s liens (11); unethical conduct (10); and rudeness or discourtesy (9). Smaller numbers of complaints were received about conflict of interest, failing to comply with an undertaking, and putting client funds at risk.

2.84 This confirms the earlier research and the Commission’s view that the vast bulk of complaints relate to conduct which would, at most, amount to unsatisfactory professional conduct. More serious complaints, alleging matters which amount to professional misconduct are relatively rare.

2.85 The Commission’s own characterisation of the basis of complaints sometimes differed with that of the Law Society, which often limited its official characterisation of the complaint (in its own files and in the clarifying letter to complainants) to one or two heads. In fact, we noted that the complaint is often about a cluster of allegedly unsatisfactory behaviour. Thus it was not unusual for a complainant to refer, for example, to unreasonable delay and poor communications, negligence, failing to obey instructions, and overcharging. Some of the more sophisticated complainants do write back to the Law Society pointing out that they have raised many more issues than seem to be the subject of investigation.

2.86 Areas of legal practice. There was a fairly wide spread of areas of legal practice giving rise to complaints, although conveyancing/sale of property (22 complaints); family law (22), and workers compensation (19), were most represented. These were followed by: non-litigious commercial matters (15); “other litigation” (13); motor vehicle accident compensation (12); wills and probate (7); and debt recovery and other civil claims (6). Surprisingly, given the number of matters and the stakes involved, criminal law gave rise to only four complaints.

The profile of respondent lawyers

2.87 Most of the complaints against solicitors were about sole practitioners (63 complaints ) and small partnerships (56), with relatively few against medium-sized (14) or large firms (7). (“Medium-sized firms” were defined as those with four to nine principals, and “large firms” as having ten or more principals.) In terms of location, most of the respondent solicitors were located in the Sydney metropolitan suburbs (51), followed by the Sydney CBD (42) and the country (33). To the Commission’s considerable surprise, a very high proportion (92%) of the solicitors complained about had been the subject of at least one prior complaint (in 81 of 88 cases where this information was available and recorded by the Commission’s investigators). Some names seemed to adorn a number of the files; and the Commission was informed that one of these solicitors is currently facing 222 complaints.

The poor quality of investigations

2.88 Tone of the initial correspondence. The tone of the first letters from the Law Society to the complainant and to the respondent solicitor are different. The letter to the complainant is courteous, but somewhat impersonal. The letter to the solicitor, by contrast, is warmer and more helpful. For example, many of the letters to solicitors concluded with the following paragraph:

If you would like to discuss the matter before making a reply then I would be pleased to hear from you so that I may give any assistance you require in responding. You may wish to seek independent advice and if so I can give you the names of solicitors who participate in the Senior Solicitors scheme who would be able to help you.

2.89 The Law Society’s letter betrays the ambivalence of its position. The Society has statutory responsibility for the investigation of claims of wrongdoing by solicitors, but at the same time it is a professional association which must provide services to its members. Thus, in the initial letter, a solicitor is put on notice that the Law Society has received a complaint about his or her professional conduct which will be investigated and should be taken seriously; on the other hand, the solicitor is then offered a range of services to assist in the preparation of his or her defence.

2.90 Although the Law Society also is under a statutory obligation to provide all necessary advice and assistance to persons making complaints, there is no equivalent offer of “any assistance you require” in the standard letter back to complainants.

2.91 Similarly, after dismissal, the standard letter to solicitors thanks them profusely for their assistance - even in cases where there was in fact very little cooperation, and even where the Law Society had threatened to suspend or cancel the person’s practising certificate because they had not supplied information after repeated requests. The letter to unsuccessful complainants simply notifies them of the dismissal, and of the possibility of having the decision reviewed (see below).

2.92 The passivity and insufficiency of the investigation. The File Survey strongly confirmed our view, stated in DP 26, that the general approach of the Law Society is to process complaints passively rather than to investigate them actively.

2.93 In almost all of the files, the investigation consisted of the classic “paper chase”, with the Law Society shuttling letters back and forth between complainant and respondent solicitor for comment. In a small number of cases the Law Society summoned files (usually trust account ledgers) and in a few of these an investigator was eventually appointed. In only six per cent of cases (7 out of the 115 files in which this information was available) was there ever a face-to-face meeting between the complainant and the Law Society’s legal officer, and most of these were at the initiative of the complainant.

2.94 In only the rare case did the Law Society legal officers: check through the solicitor’s files; track down and interview third parties (such as other lawyers) who could shed light on facts in dispute (even where the existence of such valuable evidence was blatantly obvious from the complaint file); call in an independent expert or distinguished specialist for advice on the standards and practices expected of a competent legal practitioner in a particular area of law; or in any other way actively or imaginatively conduct research or use investigative techniques which are regarded as standard and essential by other investigatory or regulatory bodies (eg the police, the Ombudsman, the Australian Tax Office).

2.95 The over-reliance on pro forma letters by the Law Society sometimes verges on the surreal. Women solicitors often were referred to in the correspondence as “Mr X”, and letters sent out on Christmas Eve or to persons residing overseas sternly warn that the recipients must respond within 10 or 14 days. These are not major problems in themselves, but are symptomatic of the central problems.

2.96 The Commission did not feel that the approach was calculated to discriminate against complainants. Indeed, one of the problems is that the existing approach is largely undiscriminating - silly or bizarre complaints are dealt with in much the same rote fashion as more substantial allegations, with the shuffle of complaint and reply between the parties, and disposition determined as if it were an adversary system with the onus on the complainant. The most basic questions:

• What is it the complainant wants from the process?
• Is some sort of counselling or discipline needed to ensure the fitness of the particular solicitor? and
• Is there anything we can learn about improving legal practice or the delivery of legal services generally?

almost never seem to be asked, much less answered.

2.97 Preference for the solicitor’s version of events. The “paper chase” mode of investigation often results in a position in which the complaint boils down to competing versions of the relevant conversations or events. In only one case did the Commission’s investigators find that the complainant’s version was accepted in preference to the solicitor’s account. In every other case the solicitor’s version was accepted, either directly or on the basis that the complainant had not adequately supported or documented his or her story.

2.98 Solicitors’ responses also tended to be well-structured, coherent, well-presented and attuned to the requirements of the Act, as one would expect from persons with legal training. By way of contrast, many of the complaints are, not surprisingly, emotional, rambling, handwritten, and unpolished. The complaints history of the practitioner involved did not appear to be taken into account in deciding which story to accept.

2.99 Although there is nothing on this in the complaints form, the Explanatory Brochure, or the correspondence with the complainant, the onus of proof is effectively placed on the complainant to identify clearly and sustain with probative evidence the misconduct or unsatisfactory professional conduct complained of. As discussed earlier, few complainants would be in a position to do this without the benefit of legal advice even if they were made aware of the Law Society’s expectations.

2.100 This situation clearly angered some complainants, who were moved to write back to the Law Society objecting to the fact that the solicitor’s word was “taken as gospel” or stating that it had turned out to be “a waste of time” making a complaint.

2.101 Where the complainant is a lawyer or other professional, the “paper chase” approach to investigation actually seemed to increase the heat in the dispute, as each party is sent the other’s letters for comment.

2.102 Failure to proceed from the specific complaint to the general issue. The Commission noticed that the investigation into a complaint rarely proceeded from the specific complaint to more general concerns which are raised about the solicitor’s practice. For example, in one matter (discussed further below), it was accepted that the solicitor had used an improper method of calculating his bill and had overcharged the client, who subsequently complained to the Law Society. The complaint was dismissed after the solicitor reduced the bill by about half, following a review by independent costs assessors. Whether or not the particular complainant was satisfied, the Commission’s investigators were left to wonder whether the solicitor in question might have rendered excessive bills to other clients, past and present, on the same erroneous basis. The Law Society did not ask the question, nor did it counsel the solicitor to review his billing practices (generally, or in relation to the particular class of work involved).

2.103 Failure to pick up related allegations of poor practice. Similarly, the Law Society’s legal officers generally left it to the complainant to make the running on any additional matters which arose in the course of the investigation. For example, in one case a firm of solicitors complained about the conduct of another firm. It seemed to be common ground between the complainants and the respondents, however, that a third firm of solicitors, which also was involved in the particular legal proceedings, had acted incompetently. No action was taken against the third firm, however, as no further formal complaint was made.

2.104 In another matter which was dismissed, a solicitor mentioned in passing that he had arranged for an apparently illegal credit check on the complainant. The complainant had not specifically complained about this matter (and probably did not know about it), but the casual admission of impropriety was not picked up by the Law Society’s legal officer. These cases are unsatisfactory, and suggest that the general community interest in the proper regulation and discipline of the legal profession is not being looked after. Where such allegations come to the attention of the Law Society’s Professional Conduct Department, they must be acted upon, with the Law Society itself as the complainant if necessary.

2.105 Attitude toward allegations of negligence. As the Commission noted in DP 26, there is still noticeable ambivalence on the part of the Law Society about whether to treat a complaint about negligent conduct as a matter requiring disciplinary action. Quite a few of the complaints we surveyed were dismissed - even though it seemed to be agreed that the solicitor had “made a mistake” - on the basis that the complainant was free to sue in the courts for negligence. This presupposes that negligence does not ordinarily amount to unsatisfactory professional negligence, but rather is a matter for civil action.

2.106 Attitude toward allegations of overcharging. There appeared to be a similar reluctance to treat complaints about overcharging as raising disciplinary issues, at least where the solicitor’s original account “had a relation to the work which was carried out”. Although in one matter it was agreed that, given the applicable District Court rules, the solicitor’s original account was clearly excessive in the circumstances (and the bill was in fact subsequently reduced by about half), the complaint was nevertheless dismissed. This was done on the basis that when the bill was challenged by the client, the solicitor took steps to have the bill vetted by costs consultants, and when the consultants advised that the bill was excessive, the solicitor reduced his fees accordingly.

The prevalence of the dismissal

2.107 Disposition of complaints. Of the 144 complaints surveyed, 3 were dismissed for failure to provide further particulars; 4 were dismissed for being frivolous or vexatious; 90 were dismissed following investigation (one with a reprimand administered); 33 were withdrawn or closed with the “consent” of the complainant (see below); five were still pending; and six (4%) were referred for a hearing before the Standards Board (2 matters) or the Disciplinary Tribunal (4 matters). Of the 90 dismissed matters, 24 led to applications by the complainants for external review by the Conduct Review Panel. In DP 26, the Commission expressed concern that although the Legal Profession Act 1987 was meant to signal a new approach, the pattern of the disposition of complaints had actually changed very little, and that little use was made of the Standards Board.⁷³

2.108 Matters closed by “consent”. Nearly a quarter of complaints are marked as being “closed containing no evidence of unsatisfactory professional conduct or professional misconduct”. This usually involves the solicitor complained about finally agreeing to do what the complainant had requested some time ago: transfer files, remove a lien, itemise a bill, proceed with an action, advise the client of the status of the case, and so on.

2.109 The Commission had some concerns about many of these matters, as they sometimes seemed to indicate a pattern of poor professional practice. For example, many complaints about delay or poor communications appeared to be confirmed by the attitude which the solicitor showed to the Law Society. The respondent solicitors were often very tardy in responding to the Law Society’s letters requesting an explanation, even those letters which carried a threat of suspension or cancellation of the person’s practising certificate. Then when the solicitor finally did respond and performed the act requested by the complainant, the approach of the Law Society’s officer was to write to the complainant saying that he or she was of the opinion that the complaint was now resolved and would be closing the file unless the ciomplainant objected within 10 days. By this time, however, few complainants wish to press the disciplinary aspect of the matter.

2.110 There was nothing in the files which suggested that the legal officers made any considered decision about whether or not the facts disclosed unsatisfactory professional conduct. In the view of the Commission’s investigators, many of these cases arguably raised an issue of unsatisfactory professional conduct, or at least warranted further investigation. The Commission also was concerned that some of these matters are closed by the Law Society upon notification of an agreement between the solicitor and the complainant, without waiting to see whether the agreement was fulfilled. Presumably a breach of the undertaking by a solicitor in these circumstances would require a fresh complaint.

2.111 Use of the “first offender” discharge. Under s134(1A) of the Act, a complaint may be dismissed by the Council notwithstanding a finding of unsatisfactory professional conduct, if “it is satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner”. The Commission noticed that this method of dismissal was used on a number of occasions in which the solicitors involved had prior complaints against them , although these had been dismissed. The Law Society Council is apparently of the view that such complaints are not “material”. The Commission has some concerns about this approach, given our doubts about the sufficiency of most investigations and the reluctance to treat certain kinds of complaints (eg, negligence, delay, overcharging) as raising disciplinary issues.

2.112 Sufficiency of reasons for dismissal. It appeared to the Commission that some of the dissatisfaction of complainants stemmed from the brevity of the reasons given, which are, indeed, reasons rather more than explanations. The approach tends to be narrow and legalistic (closely following the words of the Act). This is compounded by the long period of time which elapses before these reasons are presented to the complainants and the fact that the reasons are technically constructed to address the statutory requirements rather than to engage with the complainant’s concerns.

Other observations

2.113 Notification of the right to review. The Law Society’s letter to a complainant informing him or her that the complaint has been dismissed contains a standard final paragraph notifying the complainant that:

The Society’s file will now be closed. If you wish to have the Society’s treatment of your complaint reviewed by the Legal Profession Conduct Review Panel you may write to it at 65 Elizabeth Street Sydney NSW 2000 within two months of the date of this letter.

2.114 Although information about the nature of the review and the composition of the Panel are contained in the Law Society’s Explanatory Brochure for complainants, it was not clear whether every complainant was actually sent this publication. In any event, the Commission believes that a further and more detailed explanation of the review process (perhaps in the form of a separate brochure) should accompany the dismissal letter.

2.115 Use of the complaints system as a collection agency. A significant number of complaints involved the use of the complaints system by other lawyers, professionals or consultants (accountants, real estate agents, valuers, translators, and others) in the manner of a collection agency. It did not appear to us that the approach of the Law Society was consistent in this area. Some complaints about non-payment were pursued with vigour, while other complainants were curtly informed that “the Law Society is not a debt collector”.

2.116 Where the failure to pay bills raises issues of trust account improprieties or a general pattern of unsatisfactory communications or office procedures, this is appropriate. For example, in one case a solicitor was offered and accepted a reprimand where he failed to pay the account of a firm of valuers he had retained for 20 months. However, there are some “one-off” or “genuine dispute” cases where the system is being abused. These should be referred to some other inter-professional procedure, or to the small claims courts.

2.117 Secrecy provisions regarding the appointment of investigators, auditors. As the Commission noted in DP 26, the provisions of the Act prevent the Law Society from revealing to the complainant that an auditor/investigator has been appointed. In the few files which involved the appointment of an investigator, the unsatisfactory nature of this position is clear. After many months, the Law Society could only write the complainant a bland letter that “investigations are proceeding”. Given the seriousness and clarity of the allegations, this message (falsely) made it appear that little action was being taken, or at least would have failed to reassure complainants.

2.118 (Unlearned) lessons for solicitors’ practices. A significant proportion of the complaints boil down to the competing recollections of the solicitor and the complainant. The Commission was struck by how rarely the solicitor could produce anything in writing to confirm his or her version of events. It seems to us that good practice requires:

• up-front disclosure of all fees and costs, and the method of billing;
• file notes of relevant conversations, etc;
• written (and preferably signed) confirmation of instructions, where practicable;
• perhaps written confirmation of an outline of basic advice; and
• clarity regarding who is responsible for disbursements (doctors’ reports, valuers’ reports, translators, etc).

2.119 In DP 26, we expressed our concern about the lack of feedback from the disciplinary system to the profession. Few files contained evidence that the Law Society made a suggestion to the solicitor concerned that he or she might want to improve their record keeping in future, nor was there evidence that the Society resolved to make a general plea or reminder to the profession. The tone and content of the typical letter notifying a solicitor that a complaint has been dismissed certainly would not lead a solicitor to believe that the Law Society had any concern about his or her standards of practice.

2.120 No informal “caution” was ever given in the letter back to the solicitor, even where the file disclosed some worrying slackness on the part of the solicitor/firm involved. For example, In one case, the solicitor in question had 11 prior complaints, including complaints lodged by the Family Court, the Prothonotary of the Supreme Court, and one of the Aboriginal Legal Services. The essence of the complaint (undue delay in the lodgment of a civil claim) seemed to be confirmed by a letter from the Attorney General, yet the legal officer in charge simply accepted the solicitor’s assurance that the matter was now proceeding properly.

The survey of the Bar Association’s complaints files

Time considerations

2.121 General delays in handling. Perhaps the biggest internal problem (leaving aside the issue of real and perceived independence from the profession) with the Bar Association’s complaints handling process identified by the Commission was its slow speed. Of the 37 complaint files looked at, 9 (24%) took more than six months to complete and 6 (16%) took more than one year. In six cases (generally ones in which the matter was withdrawn or closed by consent) the Commission was unsure about precisely when the file was closed. Thus in half of the matters in which the information was available, the process took longer than the six month (“deemed dismissal”) period.

2.122 In some cases, the length of the process was owing to the complexity of the issues and the investigation, or the legitimate unavailability of a key witness or other evidence, or other extenuating circumstances. However, most of the delays were without explanation and without good excuse. As discussed below, the Commission was generally impressed with the quality of the Bar Association’s investigations and reports. In large part this is because: (1) the relatively small number of complaints permits a substantial degree of devotion to each matter, and (2) the principal responsibility for investigation and analysis is placed with one of the practising barrister members of the relevant Professional Conduct Committee (PCC), who is likely to be a highly competent, experienced lawyer accustomed to producing such “barrister’s opinions” in his or her daily work.

2.123 However, there is a negative trade-off for relying almost entirely on part-time volunteer labour - as every voluntary organisation is aware - and that is that this work has to be fitted in among the busy barrister’s other professional and personal obligations. The Commission noted matters in which the investigator had gone on circuit, or on holidays, or had become unexpectedly involved in a long or complex trial, and work on the complaints file simply ceased for an unacceptably long period of time. Where the prospect of substantial delay became apparent, efforts sometimes were made by the chairperson of the PCC to transfer the responsibility for investigation to another member. This helped somewhat, but it still takes the second person time to get up to speed on the file and to advance the investigation and prepare the report.

2.124 The approach to tardy replies. Unlike the position obtaining regarding complaints against solicitors, the progress of investigations by the Bar Association were not often delayed because of tardy replies from respondent barristers, or the need to make repeated requests (and threats) to secure a proper response. In the relatively small world of the Bar it is more difficult for the lawyer to be uncooperative or to hide. The Commission was interested to see that a pointed letter often was written to a barrister who had not made a timely response to a complaint or a request for information or an explanation, advising the barrister of the possible repercussions of such a failure (disciplinary action, consequences for the practising certificate) and wondering how (eg) the barrister had found time to appear in a number of (named) courts when he or she apparently did not have the time to respond to the Bar Association.

2.125 The impatience of the Bar Association with barristers who failed to make a timely response was demonstrated in another matter, in which the complaint was withdrawn by the original complainant, but the Bar Council nevertheless proceeded on its own motion to admonish the barrister concerned for unreasonably failing to comply promptly with a Council (or committee of Council) request for information or an explanation of certain conduct.⁷⁴

Assistance to complainants

2.126 The assumption of sophistication. The Commission considered that (to the extent discernible from the files) the Bar Association had a helpful, “business-like” approach to providing advice and assistance to complainants. As discussed further below, the profile of complainants to the Bar Association in our survey was dramatically different from the profile of complainants to the Law Society. Nearly half the complaints to the Bar Association (15 out of 37, or 40.5%) came from lawyers or the legal professional associations.

2.127 It appeared to the Commission that quite a sophisticated level of cooperation was expected from some complainants with regard to the Bar Association’s requests for the production of evidence. Where the complainant is a lawyer, a professional association, or a corporate client, this is not a problem. However, members of the general public could well find these requests daunting or off-putting.

2.128 Uncertain supply of explanatory materials. The Bar’s Explanatory Brochure at the time of our inquiry also was geared to the more sophisticated member of the community, and read more like a legal document than a guide for the general community. The Bar has since redrafted the brochure in plain English, and plans to provide explanatory literature in a number of community languages besides English.

2.129 The Commission discusses elsewhere in this Report the danger of relying entirely or largely on written materials to provide the requisite advice and assistance to complainants, and the consequent need for direct help. However, it was unclear from the Bar Association’s files whether the existing written materials were even provided - in only two out of 37 complaint files did the file or the correspondence clearly indicate that the Bar’s Explanatory Brochure and the Complaint Form had been posted to the complainant, and in only two cases was the official Complaint Form (rather than a letter) used to initiate the investigation. If the explanatory materials are not routinely being supplied, this must disadvantage lay complainants, and it can not be assumed that even lawyer-complainants are fully aware of the disciplinary arrangements and requirements under the Legal Profession Act 1987.

2.130 Need for direct information and advice about the complaints system. Some effort on the part of the professional associations, and direct advice and assistance to complainants at the beginning of the process, will no doubt prevent a lot of disappointment at the later stages. It was apparent to the Commission that many complainants did not understand the nature or purpose of the complaints handling system. Many had unrealistic expectations about what could be achieved. For example, many complainants spoke of “obtaining justice” with respect to their legal problems and seemed to regard the disciplinary system as an appellate procedure or simply another opportunity to re-run their original case. It is unlikely that the written materials alone, even if consulted, will dissuade them from this view. Complainants should be made clearly aware of the nature and limits of the remedies available through the complaints system, and the possibility of pursuing other courses of action outside of this system. As a practical matter, this is best achieved through a face-to-face interview.

2.131 Failure to keep complainants advised of progress. There did not seem to be a routine procedure for keeping complainants (especially lay complainants) informed about the progress of their complaints. Given the general problem with delay, the absence of regular communication appeared to be cause of some anxiety for complainants. Such communication as occurred tended to come at the initiative of the complainant.

The demography of complaints

2.132 Areas of legal practice. The area of practice which attracted the most complaints was criminal law (with 9 complaints, or 25% of the sample), followed by family law (6), conveyancing/real property (4), commercial litigation (4), arbitration (2), and “other litigation” (2). A range of other types of work attracted single complaints in 1991: non-litigious commercial, motor vehicle accident compensation, traffic, bankruptcy, tenancy, workers’ compensation, and “other civil claims”. In a number of matters, the area of legal practice was not clear from the file or was irrelevant to the complaint.

2.133 It did not surprise the Commission that areas of legal practice dealing with “personal plight”, such as criminal law and family law, with high stakes and the potential for high emotion, drew the most complaints. In the area of criminal law there also may be circumstances in which the barrister’s duty to the court overrides or circumscribes his or her duty to the client, increasing the possibility of a complaint. The significant proportion of complaints in the area of conveyancing and real property is probably atypical, owing to some complaints about barristers performing the sort of conveyancing tasks which solicitors believe has been reserved for them by law.

2.134 Types of conduct complained about. As with solicitors, many of the complaints related to conduct which arguably amounts to unsatisfactory professional conduct rather than professional misconduct. For example, there were many complaints in relation to: negligence or poor quality of work (9), rudeness or discourtesy (5), overcharging (4), poor communications (3), breach of conduct or standards (2), making direct contact with a represented opposing party (1), and delay (1). There were also potentially more serious complaints about conflict of interest (3), false representations about qualifications (1), and unethical conduct (1).

2.135 However, the special style of practice of barristers - and the restrictive practices which attach to the work of the Bar - give rise to other types of complaints which are not seen (or at least more rarely seen) in respect of solicitors (or amalgam practitioners in other States). In our sample, these included: failure to represent the client’s interests (3 complaints); improper behaviour in court (3); late return of a brief or withdrawal from a matter (3); improper invocation of the “no fees, no start” rule⁷⁵ (3); acting without the intervention of a briefing solicitor⁷⁶ (3); soliciting the payment of fees directly from a client⁷⁷ (2); accepting a brief from a solicitor on the “blacklist” (for previous non-payment of barristers’ fees)⁷⁸ (1); retaining a solicitor on behalf of a client⁷⁹ (1); attending a conference with a client without a solicitor in attendance⁸⁰ (1); failing to uphold the special duties of fairness of a prosecutor (1); indirect advertising⁸¹ (1); and conduct generally bringing the profession into disrepute⁸² (1).

2.136 Who complains about barristers? Most complaints (20 out of 37, or 54%) were made by present or former clients. However, a significant proportion of complaints came from solicitors (9, or 24%), other barristers (3), the Bar Council or one of its committees (such as the Fees Committee) (2), and the Law Society (1). Complaints from other lawyers and from the professional associations tended to be mainly about the sort of intra-and inter-professional concerns and rules of practice referred to just above, rather than about the effective delivery of legal services to clients.

The nature and quality of investigations

2.137 Tone of the initial correspondence. We noted above our concern about the disparity in tone and substance between letters sent to complainants and respondent solicitors by the Law Society. The Commission found that this was less of a problem with respect to complaints against barristers. The tone of the correspondence to barristers and complainants appeared to be more even-handed, and there were no mixed signals sent to the barristers.

2.138 Need for a clarifying letter. After receiving a complaint, the Law Society writes a “clarifying” letter back to the complainant which seeks to characterise the allegations (eg “Your complaint is that the solicitor did not follow your instructions in settling the compensation claim”). The Commission has some concerns about we see as the Law Society tendency’s to ignore or mistakenly characterise some of the allegations (see above), but we believe that this procedure has merit. The Bar Association writes back to complainants acknowledging receipt of the complaint and advising them that an investigation will follow. However, there is no attempt to clarify or characterise the nature of the complaint. The Commission believes that this should happen, in order to reassure the complainant that the complaint has been understood (or to provide the opportunity for correction or addition) and to narrow the issues for investigation.

2.139 The Commission also believes it is important that, in future, the clarifying letter from the Law Society or Bar Association actually should ask the complainant what outcome they hope to get out of the process. Apart from being polite and helpful, it would be very useful for the investigating authority to know whether the complainant is mainly seeking some sort of compensation, an apology, sanctions against the lawyer, and so on. This in turn may colour the decision of whether to divert the matter for consensual dispute resolution, for example. It also would alert the investigating authority to the situation in which the complainant does not understand the role of the disciplinary system, or seeks a remedy not available through this system, or otherwise has unrealistic expectations of what will happen.

2.140 Vigour of the investigation. The key difference between the Law Society’s and the Bar Association’s approach to the handling of complaints is the manner of investigation. The Law Society employs solicitors in its Professional Standards Department (as it is now called) to handle the investigation and prepare material for the consideration of the Professional Conduct Committee (PCC). As discussed above, the Commission has been critical of the passivity, “paper chase” orientation, and narrowness of the Law Society’s investigations.

2.141 The Commission was considerably more impressed with the quality and vigour of the Bar Association’s investigations. (The problem of delay is discussed above.) The Bar Association has one employee who handles much of the paperwork and coordination,⁸³ but the actual investigations are conducted by an assigned barrister member of one of the Bar’s PCCs. This is possible in a system which receives only about 5% the number of complaints received annually by the Law Society.

2.142 The Bar Association’s investigations tend to be far more active, with the barrister in charge: often requesting transcripts, files and file notes, personal notes, diaries and so on; interviewing or getting statements from third parties (instructing solicitors, opposing counsel, other barristers and solicitors, judges and so on) who may have relevant information. The investigator actually reacts to the information acquired himself or herself (rather than merely referring it to the complainant and the respondent for their reactions), and new leads or new allegations are followed up.

2.143 In a number of matters, the investigator (in conjunction with one of the Bar Council’s senior officers) took the initiative to approach a noted expert in a particular field to ask for an opinion about the standards of practice generally expected of a barrister doing work in that area, and about whether the respondent barrister met those standards of practice in the circumstances.

2.144 The thoroughness of the investigations was reflected in the reports written for the consideration of the full PCC (and then for the consideration of the full Council). These reports generally were of a high quality and considerable length: setting out of the facts, carefully comparing and analysing the available evidence, specifying the rules and standards to be applied, and providing a reasoned conclusion and recommendation.⁸⁴ This was in contrast with the style and content of the reports prepared by the Law Society’s legal officers, which tended only to repeat verbatim the competing versions of the complainant and solicitor.

2.145 Follow-up of related matters. As noted above, the Bar Association’s investigators tended to be more alive to evidence pointing to related problems or concerns than the Law Society’s investigators, who seemed to see as irrelevant any evidence not directly related to the particular complaint. It was interesting to see that in two of the Bar Association’s complaint files, the barrister involved eventually was disciplined for matters which arose in the course of the investigation, on the Bar Council’s own initiative, notwithstanding that the original complaint was dismissed or withdrawn. (See below, regarding the disposition of complaints.)

2.146 Preference for the barrister’s version? The thoroughness of most investigations by the Bar’s PCCs, and especially the availability of and efforts to find independent evidence (documentary and testamentary), means that relatively fewer of the complaints against barristers boiled down simply to the competing versions of complainant and respondent, unlike the position with respect to complaints against solicitors (see above). Thus the reports tended to proceed from a more certain set of facts to analyse the propriety of the conduct in question. The Commission did not discern any inherent bias in the system in favour of the barrister, nor any general suspicion of the claims of complainants.

The disposition of complaints

2.147 Outcomes. Of the 37 complaint examined, 23 (62%) were dismissed⁸⁵ by the Bar Council, three resulted in a reprimand, two were withdrawn, three were still open,⁸⁶ one was referred to the Law Society,⁸⁷ three were referred to the Standards Board for a hearing on the issue of unsatisfactory professional misconduct, and four were referred to the Disciplinary Tribunal for a hearing on the issue of professional misconduct.⁸⁸ Thus, while most complaints are dismissed, the proportion of complaints to the Bar Association which results in a reprimand (8%) or in a hearing before the Board or Tribunal (19%) is considerably higher than is the case for the Law Society.

2.148 However, apart from the small size of the sample, it also must be noted that nearly half (15 out of 37, or 40.5%) of the complaints to the Bar Association came from lawyers or the legal professional associations, so that these already were framed in accordance with the requirements of the legislation, and vetted by a lawyer or lawyers for the prospect of success. Further, most of these complaints related not so much to concerns about basic competence or honesty, or to the service delivery to clients, but rather to intra-professional concerns (as noted above): advertising, professional comity, preservation of the strictures and historic work practices of the divided profession, and so on.

2.149 Complaints from clients, on the other hand, tended to be about matters which related to competence, trial tactics and strategy, style, judgment and so on, which are much harder (and often less appropriate) for the investigating authority to second-guess. As a consequence, the complaints from fellow professionals are somewhat more likely to proceed through the system to at least a reprimand. This in turn may feed the public perception that the Bar Association is more interested in the wording of a barrister’s calling card or the fact that a barrister has attended a meeting at a solicitor’s office (and not vice versa) than with more important issues of ethics and practice.⁸⁹

2.150 Sufficiency of reasons. The Commission has lauded, above, the fact that the Bar Association (unlike the Law Society) normally provides complainants with a copy of the PCC investigation report and the Council’s resolution. This practice should be encouraged. However, it also must be remembered that the reports are written by a barrister, from a barrister’s perspective, in legal language, for the consideration of (mainly) other barristers. Although the Commission itself found that reports to be clear and well-written, we also can see that many non-lawyers would not find the language, terms and concepts used easily comprehensible. The Council’s resolutions generally are terse, one-paragraph, statements geared to the statutory requirements.

2.151 The cover letter to the complainant, at least, should be oriented specifically to the needs of the complainant, in accessible language. The explanations should deal specifically with the issue that the complainant is concerned about, rather than the technical reason for the decision. This may sometimes require some explanation of, or correction of a misapprehension about, the role of barristers, the nature of the barrister-client relationship (and the relationship with the instructing solicitor) the organisation of legal work, or other basic matters regarding the delivery of legal services. Most importantly, the letter advising the complainant of a Council’s decision should not be presumed to be the last communication with the complainant. Rather, the letter should invite the complainant, if they wish, to contact someone at the Bar Association to discuss the matter. (Precisely the same considerations apply to the Law Society.)

2.152 Notification of the right of review. The situation here is the same as that described above in relation to the Law Society. Where the Bar Council has decided to dismiss a complaint, the letter informing the complainant of this also contains a statement that the complainant may have the decision reviewed by the Conduct Review Panel. However, there is no discussion of the nature of the review, the composition of the Panel, and so on. As noted above, it was not clear whether the Bar Association routinely sent their general Explanatory Brochure to all (potential) complainants at the beginning of the process. In any event, the Commission believes that a separate brochure should be included with the dismissal letter, dedicated to the issue of review by the Panel.

Feedback to the profession

2.153 The Commission was pleased to see that the Bar Association’s disciplinary process often was alive to the idea that general concerns may flow from individual complaints (and certainly from a pattern of individual complaints), and that there should be feedback from the disciplinary process to the practising profession. For example, a complaint about the behaviour (alleged rudeness and bias) of a barrister who was acting as an arbitrator led to the drafting of guidelines for barrister-arbitrators. Another complaint about the conduct of an individual led to a circular being sent to all barristers reminding them of problems caused by delays in completing chamber work, and the rules in respect of the return of briefs. There were a number of other complaints (particularly in the area of prosecution practice), however, in which the Commission felt that general concerns were overlooked.

Conclusions drawn from the surveys of Law Society and Bar Association complaints files

2.154 Perhaps the over-riding impression gained from the file surveys was that the legal professional associations manage their affairs in much the same way as most other voluntary organisations in the community, with all of the good and bad features this implies.

2.155 The positive aspects are that a number of lawyers devote considerable amounts of their time to serve on the professional Councils and the PCCs without compensation (or even significant recognition). The Commission is aware, from the file survey as well as our attendance at meetings of the Law Society Council and PCC, of the heavy workload this places on the practitioners, who also have to cope with the demands of their busy practices and their personal commitments. The same considerations apply to the lay participants in the disciplinary system, who also juggle these responsibilities with work, family and other commitments.

2.156 It is our observation that the PCCs and the Councils take this work seriously and, as we stated in DP 26, we have no doubts about the “sincerity or integrity of the principal actors”.⁹⁰ However, it is also the Commission’s firm view that the existing system works rather poorly, and serves neither the needs of complainants, the practising profession nor the community at large. In particular, there is still a “profound gap” between what angers clients and others sufficiently to go to the trouble of complaining and what lawyers and their professional associations see as important enough to merit serious attention, disciplinary action or compensation.⁹¹

2.157 Owing to its largely part-time, amateur nature, the processing of complaints takes too long (especially in the case of the Bar), investigations are often quite inadequate (especially in the case of the Law Society), and complainants feel left out of the process, leading to the dismissal of the vast number of complaints - and promoting the common idea that the legal profession is simply “looking after its own”.

2.158 Given the sheer effort involved in getting through the mountain of paperwork at meetings and processing the individual complaints received, there apparently has been little time left for reflection or for thinking more broadly about the aims and role of a professional disciplinary system. As discussed in the next Chapter, the professional associations have not really tried to articulate the various aims of the complaints handling system, or to identify the basic principles which should inform the design and operation of the system. The professional associations have never retained management consultants to assess the existing systems, nor have they undertaken the sort of detailed file survey that the Commission conducted, nor have they surveyed complainants or respondent practitioners to ascertain how the parties to the process actually feel about the way the system operates (see above). In the circumstances, it is not surprising that Members of Parliament have asked an independent body - the Law Reform Commission - to do these things.

2.159 Although the Commission is critical of aspects of the professional associations, the file survey did not move us to conclude that the profession must be removed entirely from the complaints handling system.⁹²

2.160 For one thing, the Commission is aware that some things have changed in the complaints handling systems since 1991, partly at the direct initiative of the professional associations and partly as a reaction to the fact of the Commission’s inquiry and the criticisms made by the Commission in DP 26. For example, the Commission saw no 1991 files in which there was an attempt to resolve the problem through the use of consensual dispute resolution techniques, although there were many matters which appeared suitable for mediation or conciliation. Both of the professional associations have since introduced mediation programs.

2.161 The Commission has been impressed by the efforts over the past year or so of Mr Frank Riley, CEO of the Law Society, Mr Tom Williams, chair of the Law Society’s Professional Conduct Committee, and Mr Fred Smith, manager of the Law Society’s Professional Standards Department, to effect improvements in the system. This has involved the development of a protocol for the investigation of complaints, the introduction of mediation, the preparation of a draft code of ethics, the development of a program to improve lawyer-client communications and relations, the computerisation of complaints records, and the recruitment of new staff for the Professional Standards Department. Similarly, the Professional Affairs Director of the Bar Association, Ms Helen Barrett, impressed the Commission as being committed to improving the Bar’s complaints handling.

2.162 Further, as discussed below,⁹³ the Commission believes that there is a strong argument that, as long as there is strong external scrutiny which assures the independence and effectiveness of the complaints handling system, the legal profession should take significant responsibility for the standards, conduct and practices of its members, and should not be compelled - or allowed - to play a purely passive role.

FOOTNOTES

1. Law Society of New South Wales, Submission of 31 January 1992, at 1. (Hereafter, “Law Society submission”.)

2. Law Society submission of 31 January 1992, at 2.

3. Law Society submission of 31 January 1992, at 2.

4. Law Society submission of 31 January 1992, at 2.

5. New South Wales Bar Association, Submission of 20 February 1992, at 1-2. (Hereafter, “Bar Association submission”.)

6. Bar Association submission of 20 February 1992, at 16.

7. Lawyers Reform Association Preliminary Submission of 8 April 1992, at 1-3 (hereafter, “Lawyers Reform Association submission”); New South Wales Council for Civil Liberties Submission of 21 February 1992, at 1 (hereafter, CCL submission”); Combined Community Legal Centres Group Submission of 28 February 1992, at 3 (hereafter, CCLCG submission”).

8. Lawyers Reform Association submission, at 1.

9. Lawyers Reform Association submission, at 1.

10. CCL submission, at 1; CCLCG submission, at 1.

11. Australian Consumers’ Association Submission of 23 December 1991, at 1. (Hereafter, “ACA submission”.)

12. See DP 26 at 1-6.

13. For further information on the functions of the Law Society and Bar Association Councils and the operation of the complaints system generally, see DP 26 at 8-27.

14. The terms “unsatisfactory professional conduct” and “professional misconduct” are defined in the Legal Profession Act 1987 (NSW) s 123. See also DP 26, at 12-13.

15. For further information on the functions and powers of the Board and the Tribunal, see DP 26 at 31-38.

16. The operation and powers of the Panel are discussed in DP 26, at 27-31.

17. See DP 26, at 11.

18. See generally DP 26, at 43-64.

19. For further information on the complaints system operating in Victoria, see DP 26, at 43-55.

20. DP 26, at 64-75.

21. The Courts and Legal Services Act 1990 (UK).

22. See DP 26, at 75-77.

23. See DP 26, at 77-84.

24. DP 26, at 91-141.

25. DP 26, at 98-99.

26. DP 26, at 99-100.

27. DP 26, at 93-95.

28. DP 26, at 96-97.

29. DP 26, at 95-96.

30. DP 26, at 128-130.

31. DP 26, at 100-105.

32. DP 26, at 105-116.

33. DP 26, at 116-118.

34. DP 26, at 119-125.

35. DP 26, at 125-128.

36. DP 26, at 145-146.

37. DP 26, at 143-146.

38. DP 26, at 152-156.

39. DP 26, at 147-148.

40. DP 26, at 149-150.

41. DP 26, at 161-169.

42. DP 26, at 5.

43. Law Society submission of 31 July 1992, at 1.

44. Law Society submission, at 1.

45. Law Society submission, at 1-2.

46. Law Society submission, at 3.

47. Bar Association submission of 31 July 1992, “Summary”.

48. Bar Association submission of 7 May 1992, at 1.

49. Bar Association submission, at 1.

50. Bar Association submission, at 1.

51. Bar Association submission, at 33.

52. Kingsford Legal Centre, Submission of 11 August 1992, at 4. (Hereafter, “Kingsford Legal Centre Submission”.)

53. Kingsford Legal Centre submission, at 4.

54. Chief Magistrate of the Local Courts, Mr Ian Pike, Submission of 17 August 1992, at 1.

55. Registrar of the Legal Profession Disciplinary Tribunal, Mr Robert Bennett, Submission of 26 June 1992, at 2.

56. Legal Profession Conduct Review Panel, Submission of 12 June 1992, at 1-2.

57. Commissioner for Consumer Affairs, Mr John Holloway, Submission of 10 August 1992, at 1.

58. Kingsford Legal Centre submission, at 6.

59. Such expenses being outside the Commission’s normal budget.

60. See the Annual Reports of the Victorian Lay Observer, and E Skordaki and T Dimmock A Survey of Complainant Satisfaction Among Lay Complainants to the Solicitors’ Complaints Bureau (February 1990).

61. Letter to the Commission from Mr John Marsden, President of the Law Society of New South Wales, 29 June 1992, at 1.

62. Mr Schwartzkoff has worked with the Commission on a number of other projects, including most recently the community consultation program involved in the Commission’s review of the Adoption Information Act 1990 (NSW).

63. A report on this survey was published by the Law Society in late 1992. See Caveat No 117 (December 1992).

64. A similar survey in which Mr Schwartzkoff had been involved recently occupied one secretary for 1.5 days, even though there had been no existing database of names and addresses to proceed from.

65. The Health Care Complaints Bill 1992 (NSW).

66. As Mr Schwartzkoff put it at a meeting with Law Society officials, “If you want to learn what it feels like to have pneumonia, there is little value in asking a ‘control group’ of people who have never suffered from the disease.”

67. Submission of 31 July 1992, at para 6.15.

68. See Question 8 of the survey, set out in Attachment “A” of this Report.

69. See Question 9 of the survey, set out in Attachment “A” of this Report.

70. “Other” responses were given by 0.8%, and 4.8% “could not say”.

71. 4.3% could not say.

72. See DP 26, at paras 4.123-4.127, under the heading “Why are there so few complaints against barristers?”

73. DP 26, at paras 5.29-5.34.

74. NSW Bar Association Rules, r 67.

75. NSW Bar Association Rules, r 64.

76. NSW Bar Association Rules, r 26.

77. NSW Bar Association Rules, r 29B.

78. NSW Bar Association Rules, r 85.

79. NSW Bar Association Rules, r 30.

80. NSW Bar Association Rules, r 33.

81. NSW Bar Association Rules, rr 72-73.

82. NSW Bar Association Rules, r 21.

83. The Director of Professional Affairs, Ms Helen Barrett.

84. In only one matter examined by the Commission, involving a considerable number of related allegations, did the level of analysis in the report appear to be mechanical and unsatisfactory. In the event, the report - which was prepared by an outside consultant - was only partly accepted by the full Council.

85. One complaint was dismissed for being frivolous and vexatious when the barrister could not be identified from the complaint. The remainder (22) were dismissed after investigation, on the basis that there no unsatisfactory professional conduct or professional misconduct was revealed.

86. At the time of the Commission’s survey, two of these matters had been open for 16 months each and one for 18 months.

87. The complaint was adjudged to relate mainly to the conduct of a solicitor.

88. The total number of matters disposed of comes to 39, because of two matters in which the original complaint did not proceed beyond investigation (one was dismissed and one withdrawn by the complainant), but the Bar Council acting on its own initiative proceeded on the basis of evidence which arose in the course of the original investigation. In one case, this led to a reprimand of the barrister involved; in the other, the matter was referred to the Disciplinary Tribunal, which suspended the barrister’s practising certificate for six months.

89. John Mortimer, characteristically, has captured the flavour of this lack of perspective in Rumpole on Trial (London, Viking, 1992) at 225-226:

“Perhaps I should explain the obscure legal process that has to be gone through in the unfrocking, or should I say unwigging, of a barrister. The Bar Council may be said to be the guardian of our morality, there to see we don’t indulge in serious crimes or conduct unbecoming to a legal hack, such as assaulting the officer in charge of the case, dealing in dangerous substances round the corridors of the Old Bailey or speaking to our clients in the lunch-hour.”

91. See DP 26, at para 5.29.

92. Rather, we have opted for a system in which the professional Councils retain a role, although under the powerful scrutiny of a Legal Services Ombudsman and a more robust Conduct Review Panel, in order to ensure the independence and efficacy of the system. The reasons for this choice are discussed in the following Chapter, and the details of the proposed new system are set out in Chapters 4-5.

93. See Chapter 3, paras 3.125-3.128.