7.1 Part 10 of the Legal Profession Act 1987 (NSW) establishes a co-regulatory model for dealing with complaints about lawyers. This Chapter considers different models for dealing with complaints, ranging from self regulation to independent regulation. The Chapter discusses the involvement of the Law Society and the Bar Association in the complaints process and consumer protection. The Chapter outlines different models which were suggested by submissions, and the models used for dealing with complaints about lawyers in other jurisdictions. This Chapter also discusses some of the methods by which complaints systems can be evaluated.
7.2 This Chapter contains no recommendations. As noted in Chapter 1, this is an Interim Report which focuses on procedural questions about the current system for dealing with complaints about lawyers. However, the Commission considers that there is merit in reviewing more fundamental aspects of the current co-regulatory model. The Commission will consult with the Attorney General about the scope of the additional work to be done in the next stage of this review. It will also require further consultation with consumers of legal services, the LSC and the professional associations.
TYPES OF REGULATION
Self regulation
7.3 Self regulation describes a group of people regulating or controlling their own activities, including admission to the group, setting professional standards, and disciplining members.1 Self regulation is common for professional groups.
7.4 Self regulation gives primacy to the idea of professional independence free from interference. Factors such as public accountability and consumer protection may not be adequately accommodated in predominantly self regulatory models.
Banking Ombudsman Scheme
7.5 The Banking Ombudsman Scheme is a self regulatory scheme for dealing with complaints about banks. The Scheme, which is funded by banks, employs an independent Ombudsman who is selected by a Council consisting of equal numbers of consumer and bank representatives. The Australian Banking Industry Ombudsman deals with complaints by individuals (and in some cases, small businesses) about specific banking services. Complaints can be resolved by agreement or by recommendation by the Banking Ombudsman. The Banking Ombudsman may also make an award of up to $150,000 for financial loss caused by the actions of a bank.2
Co-regulation
7.6 Co-regulatory regimes allow organisations outside the profession, such as government and community agencies, to be involved in the regulation of the profession.3 This allows public interest considerations, such as protection from anti-competitive practices, and consumer protection issues to be taken into account and balanced with those of the profession.
Part 10 of the Legal Profession Act 1987 (NSW)
7.7 The complaints and disciplinary system established by Part 10 of the Legal Profession Act 1987 (NSW) is co-regulatory. The system is established by legislation. The Law Society Council and the Bar Council, which are the professional bodies representing practitioners, conduct most investigations. The Office of the Legal Services Commission is an independent statutory agency which supervises and monitors the professional bodies. Complaints about lawyers are heard by the Legal Services Division of the Administrative Decisions Tribunal, which is a quasi-judicial body.
Health Care Complaints Commission
7.8 Complaints about health practitioners in New South Wales4 are dealt with by a co-regulatory scheme involving the registration authorities which regulate and represent various health professions and the Health Care Complaints Commission (the “HCCC”), an independent statutory authority. Complaints must be made to and investigated by the HCCC. The HCCC is required to notify the relevant registration authority about complaints and consult with the registration authority. After investigating a complaint the HCCC must either prosecute the complaint before a disciplinary body or refer it to the Director of Public Prosecutions, intervene in proceedings on foot before a disciplinary body, refer the complaint to the relevant registration authority with a recommendation, comment to the health practitioner or terminate the complaint.5
Telecommunications Industry Ombudsman Scheme
7.9 The Telecommunications Industry Ombudsman Scheme is a co-regulatory scheme for resolving disputes between telecommunications carriers and internet service providers and their customers. The scheme is established by legislation under which membership of, and compliance with, the scheme is compulsory.6 The Scheme is funded by members on the basis of the number and comparative percentage of complaints made to the Telecommunications Industry Ombudsman.7 The Scheme deals with complaints by individuals and small businesses about the provision of services, billing and breaches of the industry’s Customer Service Guarantee, industry codes and standards. Complaints can be resolved by agreement. The Telecommunications Industry Ombudsman can make binding determinations of up to $10,000 and recommendations of up to $50,000 compensation for financial loss caused by a telecommunications carrier or internet service provider.8
Independent regulation
7.10 Independent regulatory regimes involve the regulation of a profession or industry by an independent body, often established by government. Professional bodies have no involvement in this form of regulation.
Submissions
7.11 In IP 18 the Commission asked what the appropriate role for the professional bodies in the complaints system should be (Issue 1).There was strong support for co-regulation among the OLSC and the Councils.9 The Law Society argued that the current system is effective and meets the criteria for good complaints handling outlined in IP 18.10 The Law Society has also argued that the involvement of the profession is important because it:
- “preserves independence from control by the Government of the day”;11 and
- makes available the expertise of senior members of the profession through, for example, the Professional Conduct Committees.12
7.12 Co-regulation was also supported in submissions by individual practitioners.13
7.13 Many submissions, especially from consumer groups and individual consumers of legal services, strongly opposed co-regulation.14 These submissions criticised the involvement of the profession, through the professional associations, in the disciplinary system. It was argued that there is a conflict of interest in the Law Society and the Bar Association participating in the complaints and disciplinary system, since they are the professional associations which represent practitioners. It was argued that the professional associations are not effective regulators. Other submissions argued that the public perception of the professional bodies’ involvement in the system means that all results, however fairly and meticulously arrived at, will be suspect.15 A substantial number of submissions called for independent regulation of the legal profession.16
7.14 Several submissions suggested that the professional associations should not be dealing with complaints but should rather be playing a support role in the system.17 This role might be either assisting practitioners who have been complained against, representing the interests of the profession (in ensuring appropriate standards are upheld, etc),18 or even by providing appropriate expertise where required.19
CONSUMER REDRESS
7.15 The objects of Part 10 are to redress consumer complaints by users of legal services, ensure that individual practitioners comply with professional standards and maintain the standards of the profession as a whole.20 The object of addressing consumer complaints was inserted into Part 10 in response to the Commission’s earlier work on complaints about lawyers.21 In IP 18 the Commission asked how Part 10 could better address the needs of consumers (Issue 3).
Submissions
7.16 One submission argued that the aims of consumer redress and maintaining professional standards are conflicting.22 Another submission commented that consumers have little interest in disciplinary outcomes of complaints – what is important to consumers is the resolution of their individual consumer dispute.23
7.17 On the other hand, the OLSC argued that using the system to provide consumer redress will ultimately lead to the development of consumer-oriented professional standards as part of the regulatory system.24
7.18 It was also submitted that some consumers pursue disciplinary matters to ensure that the behaviour complained of does not happen again or that justice is done.25
LEGAL PROFESSION IN OTHER JURISDICTIONS
Australia
7.19 Complaints about lawyers in the Australian Capital Territory, the Northern Territory, South Australia, Queensland and Tasmania are dealt with by the professional associations.26 In Queensland and Tasmania, the relevant legislation also provides for the appointment of a legal ombudsman but the ombudsman is limited to a monitoring role.27
7.20 In Victoria complaints about lawyers can be investigated and dealt with by either the Legal Ombudsman or the professional associations.28 In March the Victorian Government published a Discussion Paper on regulating the Victorian legal profession.29 This Paper discusses a number of alternative models for handling complaints against lawyers, ranging from a greater return to self regulation favoured by the professional associations to a completely independent regulatory regime.
7.21 In Western Australia complaints about lawyers are dealt with by a Legal Practice Board consisting of a Chairperson and at least six other practitioners, and two community representatives.30
Overseas
7.22 Complaints about solicitors in England and Wales are dealt with by the Office of Supervision of Solicitors, which is funded by the Law Society. The Office of Supervision of Solicitors is independent of the Law Society in the sense that the Law Society cannot interfere in its investigations or decisions.31 Complaints against barristers are dealt with by the Bar Council.32 A Legal Ombudsman monitors the way that complaints about solicitors and barristers are dealt with.33
7.23 Complaints about New Zealand lawyers are dealt with by the professional associations. Regional Lay Observers monitor the investigation and resolution of complaints by the professional associations.34
7.24 The legal profession in Canada is also essentially self regulated. Complaints are dealt with primarily by the professional association in each province.35
COMPLAINTS HANDLING STANDARDS
7.25 One way of evaluating complaints handling systems is to measure their performance against criteria considered necessary for effective complaints handling. The Commonwealth Ombudsman has developed complaints handling standards to assist government agencies with the establishment and maintenance of effective complaints handling systems.36
7.26 The first element identified by the Commonwealth Ombudsman is commitment to the complaints handling system and clients. Training and development of staff to foster a client service culture is an example of a practice which demonstrates commitment.37
7.27 The next element identified is fairness to participants in the system. The Commonwealth Ombudsman comments that a fair complaints handling system is impartial, confidential, transparent and is able to provide outcomes and remedies in response to complaints which are substantiated.38
7.28 Thirdly, effective complaints handling systems must be accessible to their clients. According to the Commonwealth Ombudsman, accessibility involves providing clear information about how to make complaints, the complaint process, the client’s rights and responsibilities and applicable service standards.39
7.29 Effective complaints handling systems must also be responsive to clients and their complaints. One tool for encouraging and maintaining responsiveness is the use of time standards for resolving complaints.40
7.30 Complaints handling systems must also be effective. The Commonwealth Ombudsman comments that ensuring effectiveness involves evaluating client satisfaction of processes and outcomes, and adjusting the system to reflect feedback about the quality of service provided.41
7.31 Finally, complaints handling systems must be accountable to clients and the wider public. This involves regular publication of the number and type of complaints received, speed of response, outcomes, client satisfaction levels and adjustments made to improve the system.42
7.32 The complaints handling system set up by Part 10 is more complex than a simple model of a client complaining to a government agency about that agency’s activities in that the participants in the system (practitioners, complainants, the professional associations, the LSC and the public) have various, and often overlapping, interests in the operation of the system and its outcomes.
7.33 Despite this, it may be possible to evaluate the system for dealing with complaints about lawyers by reference to standards such as those developed by the Commonwealth Ombudsman. This would involve assessment of the legislative framework and practical operation of the system.
Footnotes
1. See W H Hurlburt, The Self-Regulation of the Legal Profession in Canada and in England and Wales (Law Society of Alberta and Alberta Law Reform Institute, 2000) at 1.
2. Australian Banking Industry Ombudsman (as at 28 March 2001) «www.abio.org.au».
3. New South Wales Law Reform Commission, Complaints Against Lawyers: Review of Part 10 (Issues Paper 18, 2000) (“IP18”) at para 3.5.
4. This includes complaints about a wide range of services, including hospital, medical, nursing, dental, psychiatric, pharmaceutical and community health services: Health Care Complaints Act 1993 (NSW) s 4.
5. Health Care Complaints Act 1993 (NSW) Pt 2.
6. Telecommunications (Consumer Protects and Service Standards) Act 1999 (Cth) Pt 6.
7. Telecommunications Industry Ombudsman, Annual Report 1998/1999 at 10.
8. Telecommunications Industry Ombudsman (as at 29 March 2001) «www.tio.com.au».
9. See OLSC, Submission at 4; Law Society of NSW, Submission at 7; NSW Bar Association, Submission at 23-25.
10. Law Society of NSW, Submission at 7. See IP 18 Chapter 3.
11. Law Society of NSW, “About the Law Society of NSW: Maintaining Professional Standards” (as at 30 March 2001) «www.law society.asn.au».
12. About the Law Society of NSW: Maintaining Professional Standards.
13. R S Cuddy, Submission at 1; C Wall, Submission at 5.
14. P Breen, Preliminary Submission at para 1.1, 3.1, 3.2, 3.3; For Legally Abused Citizens Inc, Submission 1 at 2-3; For Legally Abused Citizens Inc, Submission 2 at 3; B Hagen, Submission 1 at 7; V Morris, Submission; NSW Legal Reform Group, Preliminary Submission at 1; NSW Legal Reform Group, Submission at 3; N R Cowdery, Submission at 1; Medical Consumers Association Inc, Submission at 7; Victorian Legal Ombudsman, Submission at 13-14. See also V Drakeford (letter to the Editor), “Legal whistling into the wind” Australian Financial Review (17 May 2000) at 24; N Carson, “Self-regulation a big issue for profession” Australian Financial Review (17 March 2000) at 32; NSWLRC Report 70 at para 3.7-2.23.
15. N R Cowdery, Submission at 1. See also B Barac, Submission at 2.
16. F Combe, Submission at 4; N R Cowdery, Submission at 1; For Legally Abused Citizens Inc, Submission 1 at 3; M Fullerton, Submission at 1; B Barac, Submission at 2; NSW Legal Reform Group, Submission at 4; Federation of Community Legal Centres (Victoria), Submission at 2; Victorian Legal Ombudsman, Submission at 8-10; P Breen, Submission at 1.
17. F Combe, Submission at 3.
18. C Wall, Submission at 2.
19. F Combe, Submission at 4.
20. Legal Profession Act 1987 (NSW) s 123.
21. NSWLRC Report 70 at para 3.24-3.31 and Recommendation at 71.
22. P Breen, Preliminary Submission at para 1.
23. Medical Consumers Association Inc, Submission at 7.
24. OLSC, Preliminary Submission at 12. See also OLSC, Annual Report 1998/1999 at 20-21.
25. See C Wall, Submission at 1-2.
26. Legal Practitioners Act 1970 (ACT) Pt 8; Legal Practitioners Act (NT) Pt 6; Queensland Law Society Act 1952 (Qld) Pt 2 and 2A; Legal Practitioners Act 1981 (SA) Pt 6; Legal Profession Act 1993 (Tas) Pt 8.
27. Queensland Law Society Act 1952 (Qld) Pt 2B; Legal Profession Act 1993 (Tas) Pt 8 Div 4.
28. Legal Practice Act 1996 (Vic) Pt 5.
29. P A Sallmann and R T Wright, Legal Practice Act Review (Victoria, Department of Justice, Discussion Paper, 2001).
30. Legal Practitioners Act 1893 (WA) Pt 4.
31. Solicitors Act 1974 (Eng).
32. Bar Council for England and Wales, Complaints Rules.
33. Courts and Legal Services Act 1990 (Eng).
34. Law Practitioners Act 1982 (NZ) Pt 7.
35. W H Hurlburt, The Self Regulation of the Legal Profession in Canada and in England and Wales (Law Society of Alberta and Alberta Reform Institute, 2000).
36. Australia, Commonwealth Ombudsman’s Office, A Good Practice Guide for Effective Complaint Handling (2nd edition, 1999). See also Standards Australia, Australian Standard: Complaints Handling (AS 4269-1995) (1995); Alaska, Ombudsman, “Devising a Government Complaint System: Guide to Good Practice” (as at 21 July 2000) «www.state.ak.us/ombud»; New South Wales, Attorney General’s Department, National Competition Policy Review of the Legal Profession Act 1987 (Report, 1998) at 54.
37. See for example HCCC, Annual Report 1999/2000 at 81, and ABIO, Annual Report 1999/2000 at 19, where the HCCC and ABIO report on professional training and development of staff.
38. Commonwealth Ombudsman at 20-27. See for example the requirement that the HCCC must give reasons for its decisions: Health Care Complaints Act 1993 (NSW) s 41.
39. Commonwealth Ombudsman at 29-30. See for example the explanatory information published on the web sites of the Australian Banking Industry Ombudsman: «www.abio.org.au» and the Telecommunications Industry Ombudsman: «www.tio.com.au».
40. Commonwealth Ombudsman at 43. For example, the HCCC uses a time standard of 60 days, and reports the time taken to resolve all complaints each year: HCCC, Annual Report 1999/2000 at 7.
41. Commonwealth Ombudsman at 45-46. For example, the HCCC runs a consumer advocacy service which undertakes client satisfaction surveys.
42. Commonwealth Ombudsman at 49-50. For example this information is reported by the HCCC and ABIO their Annual Reports: HCCC, Annual Report 1999/2000 at 19, 20, 54-56; ABIO, Annual Report 1999/2000 at 20.
