Last week some figures were published from the professional standards director of the ACT Law Society, Tony Kidney, on complaints about lawyers.
They were contained in the society’s Gazette and republished in The Canberra Times. It showed there were 156 complaints to the society against lawyers in 1995.
Guess what? Not one complaint was upheld. Are we to conclude that all the lawyers in town are beyond reproach and the 156 complainants are whingers with no cause? Or is the complaints system a ground for complaint? What confidence would any ordinary member of the ACT public dealing with lawyers have in a system that yields a 156-to-0 result.
True, four lawyers were dealt with by the Supreme Court in 1995 for cases arising in previous years. Two of those arose from a complaint by another lawyer that his fees were not paid in a timely or proper way. One arose out of a criminal fraud charge and another arose out of a taxation case. Not come arose from a complaint by an ordinary member of the public.
I don’t think that the people responsible for the administration of the system are at fault. The trouble is the rules they work under and the fact that the ACT Law Society has managed to prevent significant change to the system and the ACT Assembly is too spineless to take it up.
Complaints are covered by the Legal Practitioners Act. Complaints initially go to the Law Society’s complaints committee … all lawyers. It looks at the documents only and decides if there is a case to answer and reports to the executive of the Law Society … all lawyers. They can pass a case to the council of the society (its elected officers) … all lawyers. It then can decide to pursue the case before the Professional Conduct Board, which is set up under the Act) or straight to the Supreme Court.
Only at the board level do any non-lawyers get a role in dealing with complaints against lawyers, but only after various lawyer-only bodies get the chance to veto the complaints going ahead. Moreover, the Act provides that there must always be a majority of lawyers at any board hearing. There are only two non-lawyer public representatives on the board.
In 1995 no complaint was referred to the board.
The board is limited to suspending a lawyer for a year or fining a lawyer $10,000 (check). If the council of the Law Society feels the case warrants a heavier penalty it can take the case straight to the Supreme Court which can strike a lawyer off permanently.
This whole process, incidentally, is laced with secrecy, as is provided by the Act. The board only notifies interested parties of a hearing and only notifies the Law Society of any result. The public does not get a look in, unless invited to by the board, which does not happen.
The public and media get a look in at the Supreme Court stage, but names are routinely suppressed.
The Law Society argued that because the Supreme Court is acting as a professional conduct body, names should remain suppressed until after the finding. There is some merit in that argument, though I’m not sure the ordinary public who use lawyers’ services would agree. The society’s argument has force if the court and the processes before it are expeditious. The court has certainly been quick in recent cases, obviously mindful of the need not to have lawyers out there with their shingles up while still under a cloud.
None the less, a central criticism of the present system remains and should be dealt with by the legislature: at present lawyers, and lawyers alone, have a complete veto over whether a complaint is pursued and lawyers have at least a majority in any decision about whether a complaint is sustained.
On its face this is unsatisfactory and not likely to instil confidence in the complaints system. It is worse given the track record in the ACT of so few complaints by ordinary citizens getting up.
The bizarre thing is that the profession should have a strong interest in cleaning up the profession’s image. It stretches credibility that all 156 complaints are ill-founded.
Mr Kidney made a couple of pertinent points which should be put. First, a lot of complaints (47 in 1995) are about costs and there is another remedy for that: the taxing (vetting) officer of the court. Secondly, there is also another remedy for complaints of negligence that fits the category of honest mistake, rather than the gross negligence that founds a complaint of professional misconduct. In cases of mere negligence, the client can sue for damages.
But members of the public might well argue that both of these remedies are lawyer-dominated. Moreover, both these remedies and the conduct board and the court that hears complaints all apply the rules of evidence. This gives the lawyers a natural advantage because they are very skilled at using these rules to exclude the pertinent and include the confusing.
Overall, there is a Catch-22 here. The very act of assessing the legitimacy of a complaint … whether against a lawyer, other professional or a trader … is a forensic skill that lawyers in society are arguably the best equipped. In means that inevitably lawyers must investigate lawyers because they investigate everyone else, and that such a system should not be condemned in the same way that one might condemn a system of police investigating police.
But I’d argue that while there is need for the lawyer’s forensic skill in investigating lawyers’ misconduct, there is not need for it to have such a dominating monopoly as it has in the ACT. There is a need for a lay role earlier in the process, and I’d argue for the need for a lay majority in decision-making.
Incidentally, I have argued in earlier columns that the same should apply to my own wretched profession of journalism. Our accountability processes are fairly woeful. (That’s a separate story.) But that said you see far more open, honest corrections and apologies with blame attached in The Canberra Times than you see coming out of the Law Society.
Mr Kidney makes another pertinent point: if lawyers are more up-front early on about how they will charge, they will have less complaint later. (But then they might have fewer clients, as clients try to settle their own problems.)
He also suggests that lawyers should keep written evidence about instructions and conversations with clients about billing and other matters. He says that when there is a dispute so often the lawyer has no evidence to rebut allegations.
One might think, therefore, that there would be more complaints against lawyers sustained. Not so. The trouble is that clients invariable have no evidence either.
The lesson is, therefore, for clients to make a record (even tape) every session with their lawyer and to take copies of all documents. What wretched times we live in.