PREFACE

OUTLINE

• The Law Society
• The Bar Association
• The Scope of our Investigations
• The Present Position
• The Need for Change
• A Possible Solution

PREFACE

The Law Reform commission has a reference from the Attorney General, the Honourable F.J. Walker, LL.M., M.P., to inquire into and review the law and practice relating to the legal profession.

Discussion Paper No.2 takes up a number of issues relating to complaints, discipline and professional standards, and puts forward some tentative views and suggestions. It invites discussion from the public and the profession before the Commission prepares its final report. Not everyone will have the time or inclination to read the full paper, and this Outline is published for the benefit of those who desire a brief statement of the Commission's tentative views and suggestions. Any person who desires a copy of the full Discussion Paper, or to contribute comment or criticism, should communicate with Mr. Bruce Buchanan, Secretary,

Law Reform Commission of New South Wales, Box 6 G.P.O., Sydney, 2001. Telephone 238 7213. Please forward any comment or criticism by 31st July, 1979.

1. This document is an outline of Discussion Paper No.2, Complaints, Discipline and Professional Standards Part 1, which the Law Reform Commission has published in the course of its Inquiry into the Legal Profession. In that Paper, we consider the systems used in New South Wales for the handling of complaints against lawyers. In particular, we consider the systems operated by the Law Society of New South Wales, the New South Wales Bar Association, the Solicitors' Statutory Committee, the Supreme Court, the Department of Consumer Affairs, the Ombudsman and the High Court. In terms of numbers of complaints handled, the systems operated by the Law Society and the Bar Association are the most significant and we concentrate upon them.

The Law Society

2. The Law Society is a company and every solicitor who holds a practising certificate is entitled to be a member while his practising certificate is in force. The governing body of the Society is its Council, the members of which are elected from and by the members of the Society. In relation to complaints against solicitors, the Society may exercise the powers which it has under its constitution or which have been conferred by Parliament on its Council. Most of the complaints work of the Society is done by salaried officers within its Legal Department and by its honorary councillors. In addition to serving on the Council of the Society, some of these councillors also serve on the Complaints Committee of the Council.

3. When a complaint against a solicitor is received by the Society, it is usually referred to the Legal Department. If an officer of that Department considers that the complaint may call for some action to be taken against the solicitor by the Society, he will usually refer it to the Complaints Committee for consideration. After consideration, the Complaints Committee will usually make a recommendation to the Council. The investigations which we have made indicate that about 95% of complaints do not go beyond the Legal Department and that only about 2% go beyond the Council, either to the Solicitors' Statutory Committee or to the Supreme Court.

4. In practice, the Law Society's complaints system concentrates on conduct of a solicitor which, in the opinion of its Council, may constitute professional misconduct. This has usually, but not always, meant dishonesty. It has rarely meant the provision of a legal service which though not involving dishonesty is nonetheless an inadequate service. By this we mean, in broad terms, a service which falls short of what a person is reasonably entitled to expect from a solicitor. Few complaints of inadequate service have been seen by the Society as raising questions which call for investigation. Yet most complaints about solicitors have arisen out of what complainants see as being inadequate service. Complaints of delay, negligence or incompetence, for example, are common but are seldom investigated. At the same time, the Society says in a submission to us that its complaints system plays a sufficient role in reducing the incidence of incompetence and delay on the part of solicitors.

The Bar Association

5. The Bar Association is also a company and most practising barristers, but few non-practising barristers, are members. The governing body of the Association is its Council which is elected from and by those members of the Association who are practising barristers. In relation to complaints about its members, the Association may exercise powers which it has under its constitution or it may refer a complaint to the Supreme Court. In relation to complaints about barristers who are not members, the Association may investigate the complaint. If, in the opinion of the Council, the complaint calls for some disciplinary action to be taken against a barrister who is not a member of the Association, the Council may refer the complaint to the Supreme Court but it cannot itself take any other action against the barrister. Most of the complaints work of the Association is done by those of its honorary councillors who serve on the Ethics Committee of its Council. The members of this Committee consider those complaints which are referred to it by the Registrar of the Association and then make recommendations to the Council. Few complaints against barristers lead to the imposition of disciplinary sanctions, whether by the Association or the Supreme Court.

6. In practice, the Bar Association's complaints system concentrates on conduct of a barrister which, in the opinion of its Council, may show his unfitness to remain in practice as a barrister. This has usually meant conduct involving a serious breach of ethical standards. In common with the Law Society, complaints of inadequate service are rarely seen to raise questions calling for investigation. But, in common with most complaints about solicitors, most complaints about barristers arise out of what a client has seen as being an inadequate service provided by a barrister. In the view of the Bar Association, complaints of this kind are best dealt with in the contexts of admission requirements and continuing legal education, not in the context of discipline.

The Scope of our Investigations

7. In the Discussion Paper, and later in this Outline, we list what we see as being the main shortcomings of the complaints systems of the Law Society and the Bar Association. The investigations which we made, and which lead us to the view that a significant number of complaints against lawyers are not dealt with fairly and effectively, were extensive.

8. We wrote to almost 1,000 individuals and organizations and invited them to make submissions to us. Through the media of press, radio and television, we invited members of the public to tell us of their experiences, whether good or bad, with lawyers. The response to this second invitation taxed our resources to such an extent that after some months we were forced to discontinue this line of inquiry. We interviewed, in the city, suburbs and country, more than 500 people and either corresponded with or spoke on the telephone to another 350. In 169 cases, we though it appropriate to invite a practitioner to comment on a complaint which had been made about him. In 135 cases, the practitioner accepted our invitation.

9. Some of our most detailed investigations arose out of our inspections of copies of files of the Law Society and the Bar Association. In the case of the Bar Association, we asked for copies of all files concerning complaints which had been closed in 1975, 1976 and 1977. In response to this request, we received copies of 48 files and we understand that this was the total number in question. In the case of the Law Society, we obtained copies of some 600 files and information about another 1,750 files. Also, we obtained particulars of every resolution passed in 1975 and 1976 by the Council of the Society, and its Complaints Committee, in relation to complaints about solicitors. In addition, we obtained information about the number of occasions on which particular powers of the Society had been exercised during a nominated five year period, and about the 50 solicitors, or partnerships of solicitors, still in practice, against whom the most complaints had been made during another nominated period.

The Present Position

10. In the Discussion Paper, we refer to various opinions which have been expressed to us by the Law Society, the Bar Association and members of the public about the strength and weaknesses of the systems now operated by the Society and the Association. Also, we describe some of the cases which we have read in the files of the Society and the Association. These files, and other material which we have obtained in the course of the Inquiry, have led us to form the view that both systems have significant shortcomings.

11. In the case of the Law Society's system, the shortcomings which we see are:-

(a) the Society's excessive reluctance to take action in relation to complaints which are not seen by it as raising questions of serious professional misconduct; in particular, complaints of delay and negligence, and complaints which should raise questions about the competence of the practitioners concerned;

(i) little or no help given in the formulation of complaints;

(ii) little or no help given in cases where legal work complained of has been done badly or not at all; and

(iii) inadequate explanation given of how the Society sees its role in relation to complaints.


(c) the society's unduly limited use of the complaints record of a solicitor when deciding what investigation, if any, will be made of a complaint about him;

(e) the Society's excessive sympathy for, and leniency to, solicitors whose conduct is the subject of investigation and adjudication; and

(f) the Society's excessive reluctance to refer to the Solicitors' Statutory Committee any question about the professional misconduct of a solicitor if there is any substantial conflict in the evidence before it, if the evidence against the solicitor is less than overwhelming or if the evidence does not relate to a well-recognized class of "professional misconduct".

(a) the Association's inadequate investigation of complaints;

(b) the Association's unhelpful attitude to complainants; for example:-

(i) little or no help given in the formulation of complaints; and

(ii) inadequate explanation given of how the Association sees its role in relation to complaints; and

(c) the Association's unduly narrow view that complaints of negligence or incompetence on the part of barristers rarely call for action through its complaints and discipline system.

14. Although our investigations lead us to speak of what we see as being shortcomings in the complaints work of the Law Society and the Bar Association, we acknowledge that, for the most part, responsibility for this work is borne by dedicated and busy practitioners who give generously, and in good faith, of their time and skills. Many of our critical comments are directed at systems and attitudes which have evolved over many years and which, until now, have not been subjected to critical analysis by any outside agency. Nor does our later emphasis on the importance of widening the area of conduct which should be investigated imply that we have a generally poor opinion of the service provided by barristers and solicitors. Many provide an excellent service. We think, however, that the public needs more protection against those who do not provide even an adequate service.

The Need for Change

15. In our view, there is need for a complaints, discipline and professional standards system which incorporates major changes. In contrast with the systems of the Law Society and the Bar Association, we suggest that a new system:-

(a) should be concerned with a much wider range of professional conduct, particularly in the areas of incompetence, negligence and delay;

(b) should do more to improve the performance of practitioners who are providing inadequate legal services;

(c) should not be controlled and operated by any association of practitioners, and non-lawyers should play active roles in both its control and operation;

(e) should ensure that complaints are investigated more rigorously, thoroughly and fairly and that investigations are more frequently undertaken on the initiative of the investigating body;

(f) should operate more openly and provide more opportunities for the involvement of complainants; and

(g) should do more to assist people seeking to remedy harm that they have suffered in consequence of an inadequate legal service.

16. In our Discussion Paper No.1, The Legal Profession: General Regulation, we suggest that a Legal Profession Council (“the Council”), composed of lawyers and non-lawyers, be created for the purpose of exercising general powers of regulation in relation to the legal profession. In Chapter 6 of Discussion Paper No.2, we outline a possible new complaints, discipline and professional standards system. We suggest there that the Council should play an important part in the new system. In short, the system calls for the appointment by the Council of a Director of Professional Standards ("the Director") and for the creation, by statute, of a new Professional Standards Board (“the Board”) and a new Disciplinary Tribunal (“the Tribunal”).

17. We suggest that the Council should take over the complaints work of the Law Society and the Bar Association and that the Director should be given substantial responsibilities in relation to this work. In this context, the functions and, perhaps the powers of the Council would be wider than those of the Society and the Association. We suggest too that the Board and the Tribunal should not only take over the adjudicatory functions of the Solicitors' Statutory Committee but also that those functions should be widened.

18. Special features of the suggested new complaints, discipline and professional standards system include the following:-

(a) the system would concern itself with any conduct of a practitioner which constitutes a failure by him to comply with the standards (including standards of honesty, competence, care and service) which, in all the circumstances, it is reasonable to require of a legal practitioner;

(b) the Board and the Tribunal would be empowered to direct a practitioner to take steps designed to improve his performance as a practitioner;

(c) the Board and the Tribunal would be composed of two-thirds lawyers and one-third non-lawyers;

(e) the Council would be responsible for ensuring that the Director investigates complaints rigorously, thoroughly and fairly; also, the Council would review the Director's investigations, on its own initiative and on application made by complainants;

(f) complainants would have greater opportunities for involvement in the investigation and resolution of their complaints;

(g) the proceedings of the Tribunal would usually be open to the public and the proceedings of the Board would usually be closed to the public; and

(h) in limited circumstances, the Board and the Tribunal would be empowered to direct a practitioner to provide a remedy for any person whose work he has done badly or not at all.

20. The power to withdraw a practitioner's right to practise, whether permanently or for a fixed time, would be confined to the Tribunal. Both the Board and the Tribunal would have power to impose a wide range of measures, particularly measures aimed at improving the quality of work done by a practitioner. The Board, in particular, would seek, wherever possible, to obtain a practitioner's co-operation in deciding whether, and, if so, what, measures are appropriate for this purpose. Among the measures that might be imposed are requirements that a practitioner make reports on his practice, that he submit to inspection or advice, obtain assistance in his practice, undertake a course of training or cease to practise in specified areas of law. While the selection of the measures appropriate in particular circumstances must ultimately involve a judgment by the Tribunal or the Board, any legislation introducing the system should distinguish between serious and less serious breaches of standards.

21. Part I of the Discussion Paper sets out the basic structure of the possible new system. Further details of it, and of the reasons for suggesting it, will be given in Part II of the Paper which will be published later.