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Our priorities 2009 - 2010

The Commission will pay particular attention in 2009-10 to three recurring problem areas we come across as we go about our work - issues relating to costs, to supervision and to competence and diligence. Our goal as always will be to improve standards of conduct in the delivery of legal services in the interests of consumers and practitioners alike. 

We will pay these problems particular attention by:

For further information:

Costs

About one in five of all the complaints we receive at the Commission specifically allege some impropriety in relation to costs, and almost all complaints involve an issue of costs even if it isn’t the complainant’s primary concern.

We are always on the lookout for inappropriate billing practices when we are conducting an investigation into a complaint or investigation matter, irrespective of what first prompted the investigation and, because we know from past experience that these practices are more common than one might hope and expect, we’re on the lookout for inappropriate billing practices of two kinds if in particular: 

We note that we initiated proceedings in the Supreme Court in 2007 following complaints about a practitioner’s billing practices in this regard to determine the proper construction of the 50/50 rule (as it was first set out at sections 4891A-481Cof the Queensland Law Society Act 1952) and, after the practitioner’s unsuccessful appeal to the Court of Appeal in 2008, that we contacted personal injury lawyers and law firms to ask them to review their files and to reimburse any clients they overcharged the amount of the overcharge together with interest. For further information, see:

Subsequently up to and including 30 June 2009 a total of 34 law firms have reimbursed 183 clients amounts totalling $180,256, and we have secured undertakings that will see a further $197,882 reimbursed over the year ahead.

We have published guidelines to assist lawyers and law firms better understand their professional obligations in relation to these matters, as follows:

Supervision

We routinely ask ourselves whenever we’ve investigated a complaint or investigation matter and identified any unsatisfactory professional conduct or professional misconduct whether the conduct could have been prevented or at least detected and dealt with earlier in the piece if only the partners at the law firm (or if the firm is an incorporated legal practice, its legal practitioner directors) had properly supervised the delivery of legal services by the firm.

We note that the ‘conduct rules’ say that ‘a principal is responsible for exercising reasonable supervision over solicitors and all other employees in their provision of legal services by the practice’ (rule 37 of the Legal Profession (Solicitors) Rule 2007). Notably Riley’s Solicitors Manual ‘unpacks’ the rule by saying it implies that principals should ‘set in place procedures and systems that all employees of a law practice must follow in processing work and regularly monitor compliance at various trigger points, as well as review those procedures and systems.’ It adds that ‘the supervisory duty also has an educational aspect, namely to seek to inculcate in the lawyers and other staff being supervised an awareness and appreciation of their professional responsibility.’

Similarly, the Legal Profession Act 2007 makes legal practitioner directors of incorporated legal practices responsible for keeping and implementing ‘appropriate management systems to enable the provision of legal services by the practice under the professional obligations of Australian legal practitioners’ and for taking ‘all reasonable action’ to ensure that practitioners employed by the practice comply with their professional obligations and to take ‘appropriate remedial action ‘ if and when they do not – and gives us powers to audit ‘the management of the provision of legal services’ by incorporated legal practices ‘including the supervision of officers and employees providing the services.’

The conduct rule may be more broadly expressed and not nearly so well articulated as the statutory requirement of legal practitioner directors but only very brave sole practitioners or partners will argue  they have any lesser supervisory responsibilities than legal practitioner directors – and a  failure on their part to comply with the conduct rule is conduct ‘capable of constituting unsatisfactory professional conduct or professional misconduct’ (section 227 of the Legal Profession Act 2007) no less than a legal practitioner director’s failure to comply with the statute (sections 117-118).

We are co-hosting a symposium about supervision with the Griffith University Law School in August 2009 and will include a link here to the report of the symposium in due course. 

Competence and diligence

Only very few of the complaints we receive describe dishonesty or other wilful or recklessly unethical conduct by lawyers of kinds that would warrant the practitioners being struck off or suspended, or having significant conditions imposed on their right to practice. The vast majority describe one-off mistakes and errors of judgment and poor standards of service rather than misconduct as that term is more commonly understood, and many of them conduct of a kind that in the context of an employment relationship would be seen as a performance management rather than a disciplinary issue.

Complaints of these ‘lesser’ kinds deserve our serious attention nonetheless. They are at least as damaging to the reputation of the profession by weight of numbers alone as the less frequent complaints that allege more serious misdemeanours and, just as importantly, they very often describe conduct of a kind that gave the complainant less than a good or a fair deal and legitimate grounds to be aggrieved.

There is nothing surprising about this. There have been numerous inquiries over the years both here and overseas into the performance of systems for dealing with complaints about lawyers including by the New South Wales Law Reform Commission in the late 1970’s, the American Bar Association in the early 1990’s and most recently in England and Wales where the process culminated in a report to the parliament headed ‘The Future of Legal Services: Putting Consumers First’.

The reports of the various inquiries each say as we do that ‘the overwhelming majority’ of complaints allege only ‘minor incompetence, minor neglect or other minor misconduct’ or that lawyers ‘have behaved in ways that are unfair to the client and unprofessional’ and that many of them ‘state legitimate grounds for client dissatisfaction’ – but they also say (quoting the report of the American Bar Association) that the complainants in those matters ‘are left with no practical remedy’ because ‘the system for regulating the profession is narrowly focused on violations of professional ethics.’

We are determined that criticism will not apply here and, notably, the  Legal Profession Act 2007 creates the notion of ‘unsatisfactory professional conduct’ and defines it quite specifically to ‘include conduct… that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner’ (section 418). That is potentially a very broad notion.

Our problem when we’re dealing with complaints at the lesser end of the spectrum that might fit the description of unsatisfactory professional conduct is that we don’t have the powers many of our counterpart regulators have to make and enforce decisions which give consumers appropriate redress when it’s due. We have no powers to require practitioners to apologise or to re-do the work or otherwise remedy the faults in the service they provided, for example, or to waive or reduce their fee or to take some other action that is fair and reasonable in all the circumstances of a complaint including undertaking further training or improving their office systems and the like.

Rather, our only powers after investigating a complaint are to ‘dismiss’ the complaint and so to take no further action or to initiate disciplinary proceedings in a public hearing before a disciplinary body – or as some might say in relation to matters at the minor end of the spectrum, either to ‘turn a blind eye’ to conduct that rightly leaves consumers feeling aggrieved or to be over-zealous and unduly harsh on practitioners. That leaves us with something of a dilemma: neither option appeals. 

Crucially however we can dismiss complaints after investigation on either of two grounds – either because there is no reasonable likelihood a disciplinary body will find the practitioner’s conduct to amount to unsatisfactory professional conduct or because there is no public interest in taking the matter further.

The second ground gives us a way around our dilemma. There will rarely be a public interest in taking a matter further when the conduct is at the minor end of the spectrum provided the practitioners subject to complaint have done whatever they reasonably can to ‘put things right’ – by apologising or fixing whatever it is that went wrong or waiving or reducing their fee or improving their office systems, whatever in all the circumstances of the complaint is appropriate. 

So we will always be on the lookout for conduct that legitimately leaves consumers feeling aggrieved and we will invite practitioners in those circumstances to persuade us that there is no public interest in taking the matter any further because they have done what they reasonably can to put things right (for further information, see Unsatisfactory professional conduct).       

The strategy seems to be working. We finalise almost 1 in 5 of complaints we believe involve an issue of unsatisfactory professional conduct on the basis that there is no public interest in initiating disciplinary proceedings. You can read that to mean that the conduct subject to complaint amounted to unsatisfactory professional conduct of relatively minor kinds and that we negotiated an outcome with the practitioners subject to complaint that in our view put things right.

The disciplinary bodies have also made some significant decisions in recent times about conduct that falls short not of any ethical rules as such but of the standards of competence and diligence members of the public are entitled to expect of a reasonably competent practitioner. Three such decisions stand out: