LEGAL PRACTICE ACT REVIEW
RESPONSE TO ISSUES PAPER (Nov. 2000)
(see citation at end)
- Some General Observations
This response is submitted on behalf of LAW WATCH AUSTRALIA INC. and members of that organization. Many members of Law Watch have had dealings with the legal profession, as well as have had recourse to the system of justice (and injustice) that operates. Through these encounters, victims of lawyer malpractice and victims of the system of injustice have sought redress by the Legal Ombudsman's Office only to find that the L.O. has despairingly claimed to lack sufficient power to assist them. The members of Law Watch (who came from all different occupational backgrounds, including lawyers) provide a catalogue of legal disasters, which are impossible to separate from failures within the legal system, and those failures due to practitioner incompetence.
Accordingly, we make the point at the beginning that a Review of the Legal Practice Act may not address the whole problem. Lawyers work within the framework of the system. If the system of justice has deficiencies, as it has, it may not always be the fault of singular legal practitioners who may want, but cannot, address and rectify systemic problems. Similarly, and certainly under the current legislation, it may be impossible for the Legal Ombudsman to address and rectify problems and faults within the legal system. We believe that there is no body or organization set up to responsibly identify, consider, and rectify systemic faults in the making of the law and administration of the law in fulfillment of justice. Until this is implemented, legal practitioners will have to bear the brunt of all faults, inclusive of systemic ones.
We, therefore, recommend the creation of a formal body, akin to the Law Reform Commission, and referred to in this response as the "Law Reform Council" (LRC) that is open to the public and to the legal profession to raise issues of justice. We believe that one of the major issues is the high cost of justice. The courts, especially the higher courts should not be accessible to the socially and financially advantaged only. Neither should legal representation be solely for the wealthy. High quality legal aid needs to be available to all people (on a means tested basis), and not predominantly for criminal proceedings and Family Law matters.
SECURITY FOR COSTS on appeals should be abolished. There are too many incentives for unscrupulous litigants to lie and deceive and otherwise obtain unfair results. A result unfairly obtained must be subject to appeal if it is to be remedied. A security for costs application only puts a further impediment in the way of a genuine case. Security for costs should only be available against companies.
LEGAL FAILURES often occur because the public do not know the law. People know when something is wrong or unjust. People generally know when evidence is being suppressed. However the general public do not know the rules of evidence, or the rules concerning the calling of hostile witnesses, or the risk of calling the hostile witness. In most cases these problems or risks are often attributed to lawyer incompetence. Law Watch members believe that it is the duty of the Government to educate, arm and protect consumers of legal services in respect to these and all other lawyer incompetence and to ensure that lawyer incompetence ceases to exist.
REVIEW OF CERTAIN FORMS OF PRIVILEGE needs to be looked at if the Courts are to be told the truth. For example, X may raise certain allegations against Y with the police so as to damage Y's credibility in current civil proceedings. Public interest immunity privilege would prevent Y from calling the police to ascertain that it was X that raised the allegations. The result is that Y's credit is damaged and Y is disadvantaged before the Court. Public interest immunity privilege is applicable in criminal proceedings. In civil proceedings it is open to abuse and misuse.
The foregoing issues are only a few of the matters that ought to be considered if there is to be a proper and genuine complaints mechanism in place when assessing a legal practitioner complaints system.
What are the purposes of the Complaints Handling system?
Law Watch Australia Inc. is of the view that the fundamental aim of the complaints handling system is to redress the consumer complaints of users of legal services. Those legal services should be divided into two primary categories:-
- Courts and tribunals; and
- Legal practitioners.
We accept that the interest of the general public must be protected by ensuring that individual practitioners comply with the standards relating to honesty, diligence, and competence, and that ethical and practice standards of the whole legal profession are maintained at a sufficiently high level. In our view compliance with standards by individual legal practitioners should be within the purview of the Legal Ombudsman's Office. That is, the investigation of whether the individual legal practitioner has breached the necessary standard. If the standard has been breached by the individual legal practitioner, the role of the Legal Ombudsman's Office should be to prosecute the practitioner.
Such a breach should be prosecuted, at no cost to the consumer, at the Legal Practice Board Tribunal staffed by honest, dilligent, consumer oriented, highly experienced and qualified non-practising lawyers and non-lawyers elected by consumers of legal services from a list of names proposed by Government.
The role of the Law Institute of Victoria ought to include the setting of acceptable ethical and practice standards, and conveying information and advice upon those standards to all legal practitioners. Furthermore, the role of the Law Institute of Victoria (and that of the Victorian Bar Council) should be equivalent to that of a professional organization that represents its members (and their interests) to the public and to the Government, as well as represents its members at Tribunals and other forums.
On the model that we propose, scrutiny of the legal profession ought to be conducted by the Legal Ombudsman's Office.
Members of the public should have access to the Legal Ombudsman's Office to view records of complaints made against solicitors and barristers. Clear records should be kept which will enable easy view of complains for:-
- legal practice negligence;
- breach of professional standards and other unacceptable conduct.
We say that these are matters of general public interest and of consumer protection. Members of the public have a right to know this information before they engage solicitors to act for them.
The primary function, therefore, of the Legal Ombudsman's Office should be to:-
- serve to inform the public as to the particular solicitor's (and / or firm's) history as recorded with regard to ethical standards and practice standards;
- facilitate the raising of consumer complaints about legal services received (including dissatisfaction with Court services) to a legal officer;
- investigate complaints that raise issues (as opposed to mere inquiry), and report (as opposed to passing on the response of legal practitioners) to the complainants;
- identify and refer any matters raising issues of "systemic failures" to the Law Reform Council (LRC);
- prosecute legal practitioners for breach of appropriate ethical and practice standards, and for negligence, and for gross over-charging in appropriate cases;
- facilitate dispute resolution in appropriate cases by dealing with costs and any other dispute raised by consumers of legal services.
- Take action immediately where a complaint is lodged for legal professional negligence by:
- staying costs taxed by the Taxing Master,
- commanding the lawyers against whom the allegations are brought not to issue warrants for bills of costs or taxed costs,
(c) commanding the Sheriff's Office to cease action until the matters of professional negligence are resolved.
We see no problem with the Legal Ombudsman's Office having dual roles: that of dispute resolution in appropriate cases and that of prosecutor.
To effectively perform these functions, the Legal Ombudsman's Office and staff would need to be substantially increased and be staffed by highly qualified and experienced non- lawyers of the caliber of Professor Fells and his Office. To compensate for this increase, and to avoid nuisance complaints, a fee ought to be charged for a full investigative service – say $250.00. On the other hand, if an application is made as a mere inquiry then no fee ought to be charged. If the inquiry raises an issue that needs to be investigated, then the Legal Ombudsman's Office should proceed upon its own initiative.
Regulations providing the Legal Ombudsman with wide-ranging powers which would effectively enable the Legal Ombudsman to perform these functions, would need to be drawn. Such powers should include:-
- being able to question a judge as to whether he directed that no notes be permitted to be taken by parties during their case;
- questioning Counsel as to his conduct of a case; eg. where, in an adverse possession case, Counsel failed to seek a view of a fence-line which would have shown that a witness was not being truthful; or where counsel failed to question a witness upon a vital point of evidence;
- obtaining information from State and Federal Police (and others) where public interest immunity privilege has been claimed and not withdrawn;
- subpoenaing persons (even non-parties) where it is apparent that evidence has been suppressed;
- questioning the Sheriff on the sale of items sold by/or pursuant to warrants;
- inquiring of public sector employees about any matter where it is shown that there is cover up or improper influence being applied.
This list of powers is only an indication of the ambit of the powers to be covered, but it is not exhaustive of the powers that need to be considered. Law Watch Australia Inc. is of the view that the civil system of justice fails because the oath taken in proceedings often means nothing to witnesses, especially where lawyers condone the giving of false evidence. In situations where the stakes are "high", parties, witnesses, and lawyers who play prosecutor, judge and jury, may often lie, especially if they believe they can "get away with it" knowing that their version of the facts are likely to be believed by presiding judges. Law Watch Australia Inc. knows of cases where Courts have accepted the untruthful version of events from Counsel on the grounds that a Defence Lawyer's version is to be preferred to that of the Complainant. A power extended to the Legal Ombudsman to review evidence of a witness AFTER a case has been tried would inhibit a witness or a lawyer from being deceitful. We believe this is an essential power which would greatly assist in the administration of the civil system of justice. Without this power the opportunity for abuse of the civil system of justice remains extremely high for the unscrupulous and immoral litigant and/or his lawyer. Conversely, a litigant who is unjustly treated by the court process suffers doubly because of the order for costs that goes against him, plus the increased costs for an appeal. Clearly, this "double jeopardy" plus security for costs provisions puts "justice" at an extremely high cost.
The model that we propose would place the Government as the ultimate responsible body for a proper system of justice. Directly under the Government would be the Law Reform Council (LRC) whose responsibilities would include legal research and recommendations for changes and amendment to the rules of court (procedure) and to the regulations (legal). The Legal Ombudsman's Office would have the purpose, aims and functions as previously outlined. The Legal Ombudsman's office, the Government, as well as members of the legal profession would have direct access to the Law Reform Council (LRC) in suggesting change or improvement to the system, or suggested areas for research.
R.P.A.s should be abolished and replaced with the Law Institute of Victoria (LIV) and the Victorian Bar Council, (VBC) whose sole function should be to represent its professional members as a professional organization. As such, its primary duties would be to develop proper professional standards and inform members of the standards required of a legal practitioner. Legal education of practitioners would also be one of the functions for LIV and VBC. Where legal practitioners are called before the Legal Practice Board (LPB) such legal practitioners may be represented by the LIV or VBC as the case may be. LIV should also be responsible for auditing trust accounts. All legal practitioners with trust accounts would have to be LIV members.
The Legal Practice Board should be the administrative and financial center for:-
- the issuing of practising certificates;
- the payment of professional fees –
- Professional Indemnity Insurance: This should be compulsory for all practitioners. The history of complaints against respective lawyers should be assessed and criteria applied as in the private sector: those with a history of complaints and those in respect of whom pay-outs have been made should pay higher premium rates. Long term practitioners with no complaints to their names should receive "no claim bonuses".
- Practising Certificate Fees: These fees should be graded into "risk" areas and non practising certificates (with no insurance payment requirement).
- Membership to LIV or VBC: Membership should not be compulsory to the issue of a practising certificate. LIV and VBC should be and should be seen to be totally independent of LPB, and of the Legal Ombudsman. LIV membership should be compulsory for all practitioners who operate trust accounts.
- the collection of funds, administration of funds, and budgeting of funds for -
- the Law Reform Commission (LRC);
- the Legal Ombudsman's Office (LO);
- Leo Cussen Institute;
- Legal Aid Commission;
- LPB and Legal Practice Board Tribunal (LPBT).
As our proposal recommends that proper enforcement of standards be conducted through the LO, it is suggested here that the LIV and VBC and/or any non-LIV/VBC practising member pay the LO and LPBT costs of enforcement. This proposal would assist LIV/VBC in identifying "bad risk" legal practitioners and LIV/VBC could propose "internal" remedial action of their own by recommending continuing legal education courses (CLE); increased membership contributions, and/or exclusion from membership.
It is suggested that the LIV continue its administration of the Guarantee Fund and that the LIV should inform the LPB of the amount to be remitted to the LPB.
This model proposed by Law Watch envisages a total separation of L.O., L.I.V., and L.P.B., and requires each entity to have its own distinct and identifiable purposes, and its own set of duties and responsibilities. In summary, under the Law Watch model, all complaints by consumer users of legal services would be dealt with by the L.O. All investigations of breaches of legal practice standards, ethics and defalcations would be conducted by the L.O. Inquires and investigations concerning legal system failures would be conducted by the L.O.
The Law Watch model proposes and envisages that the L.I.V. and V.B.C. would be professional organizations that represent their members and exist to further the interests of their members. As such, they may apply their own internal sanctions upon members, but these sanctions would not replace the duties and responsibilities required of the L.O. in respect to formal breaches of legal practice, procedure, or ethics of lawyers.
The Law Watch model proposes and envisages that the L.P.B. would conduct the administration of practising certificates and finances, and conduct of proceedings initiated against legal practitioners.
Under the Law Watch model, ongoing law reform, research and recommendations would be by the L.R.C.
Under the Law Watch model, there would be no place for R.P.A.s. Regulations for each of the above named separate entities would clearly identify the purposes, aims, functions, and powers of each entity. Law Watch believes that the current model based on the concept that "one size fits all" was doomed, by its improper and poor design, to fail from the start.
Law Watch and its members believe that the Law Watch model will:
- Benefit the consumers of legal services by providing users with a focal point to which any (or all) consumer complaints may be directed.
- It will inhibit prank or nuisance complaints through fees being charged.
- It will provide a free service to public on issues of charging and lawyer competence.
- It will not be seen by the public as being in collusion with legal practitioners because it will prosecute legal practitioners for various breaches. (As long as the L.O. does this it will be seen by the public as not acting in the interests of the legal practitioners. Should it fail to conduct prosecutions, it will lose public confidence and respect).
- It will inquire into matters and thoroughly investigate issues: it will not merely accept responses. Its function and purposes will be to ascertain if things were improperly done, and if so, whether:
- the legal practitioner / barrister was at fault;
- the court process and / or system was at fault;
- evidence was suppressed, destroyed or available unbeknown to the complainant;
- there were other reasons, such as cover up, witness deceit, lawyer collusion to defeat a complainant's case against a lawyer; etc.
- It will report to the complainant upon matters that it has investigated.
- Where it finds systemic failures, it will raise such failures in writing to the L.R.C. and make its findings and questions public so that its office is open to public scrutiny at all times.
- The L.R.C. will in turn investigate and conduct research into the legal issues / questions raised and publish its findings in simple English for public scrutiny.
- Benefit the community at large by showing to the public that there exits for their seeing, hearing, and reading and for their fearless, respectful participation in, a healthy, accountable, and genuine protection for consumers of legal services.
The legal practitioners also benefit in that they have, through the LIV/VBC, a representative that:-
- negotiates what is a reasonable and acceptable standard of ethics and practice for the legal profession at large;
- informs all members of the legal profession as to what the acceptable standards of legal practice and ethics are;
- represents members in proceedings before the LPB;
- collects professional indemnity insurance from all practising members;
- provides a focal point for matters of interest to the legal profession;
- provides ongoing legal education to practitioners.
- Benefit the Government by reason of the fact that:-
- The LPB becomes the centralized financial and administrative body
(i) the issue of practising certificates;
(ii) the hearing of applications to withdraw practising certificates;
(iii) the collection of all finances derived from the legal profession.
- The full budget available for the different areas to be resourced is conveniently located at one place.
- Problems associated with legal practice ought to be easily identifiable.
- The LRC monitors legal system failures and establishes a profile for Government to consider and review.
- Research into the Victorian Legal System, and suggestions and recommendations for improvement would be ongoing.
- Separate, identifiable roles and functions should assist in clarity of
regulation for each entity.
We, at Law Watch Australia Inc., believe that the model we propose limits conflicting interests from which the LIV suffers. The model provides credibility to the Government in that it will be seen by the public as creating a genuine watchdog with teeth that will fairly lay blame upon the legal practice / practitioners where blame is due, and upon the system where systemic faults occur. We say that whatever or whoever is the cause of unfairness and injustice, it is for the Government to create a process that will see to the removal / redress of injustice, and to the provision of appropriate, inexpensive and speedy restitution or compensation to victims of the legal system and of lawyers. With an LRC vested with responsibility to address systemic faults ( be they the judges making "poor" or "improper" decisions or engaging in abuse of process or condoning a party's or lawyers' abuse of process, or being intentionally or negligently blind to the deceit, collusion, corruption and perjury of a party or of the party's legal practitioners) the Government would be seen to be doing something constructive towards stopping such practices, processes, and mal-administrations, so that justice for all could become a reality.
Whilst the legal profession and perhaps the Government may think all is well with the legal system and only more ethical and capable practitioners are wanting, we at Law Watch Australia Inc. are aware that both, being inextricably linked, are substantially lacking to a degree that it is a disgrace that no Government to date has seen the wisdom and had the resolve to substantially and meaningfully reform our legal system inclusive of the complaints against lawyers segment of it, and provide the system with practitioners whom the public could truly call professionals in their field. We say and believe that a survey of public opinion would support our view that in Victoria there is no other professional group that has fallen to the depth of degradation of lawyers.
Time constraints prevent us from designing a comprehensive model for regulating the legal profession for consideration by Crown Counsel and Associate Director of the Civil Justice Review Project; we, therefore, offer our model only in outline at this stage together with these additional suggestions:
1. When an excellent legal profession and an excellent court system is created in Victoria or elsewhere, then will be the time to consider nationalizing them. We, at Law Watch Australia Inc., say that it is universally acknowledged that uniformity of excellent regulations in pursuit of excellence in the practice of the legal profession included in the legislation itself must be desirable.
- Consumers of legal services must be armed with equal power of knowledge, status, and funds to that of the legal profession if best practice in regulation of the legal profession is to be achieved. Unless consumers of legal services can realistically have an opportunity to succeed in the legal system and obtain Justice against the powerful legal profession, any modification of the Legal Practice Act 1996 will be mythical.
- Unless Victoria's lawyers are given incentives to pursue excellence in principle and practice, best legal practices throughout the system will not be achieved. They must be driven away and shamed from the only incentive that they currently aspire to: the pursuit of money. In pursuit of this sole end, they stand no chance, nor should they, in the evolving national and international market for legal services.
- Consumers demand the ideal that the Victorian community have direct and unencumbered access to an excellent legal system that excels in products of justice, the elements of which include thorough, efficient, and competent investigation and application of codified justice principles, and where this practice fails, consumers demand a complaints segment that they can themselves efficiently and effectively ignite and genuinely approach to obtain a fair and just restitution/compensation. Consumers want to be able to have access to and to scrutinize the lawyer practices so that consumers' desire to get clear, unadulterated Justice for each Individual in the community can be a right and not some mythical notion of "Opportunity to Justice".
- A truly independent method of legal profession regulation is urgently needed and we believe that this can only become reality if there is first created, by an influx of lawyer funds to a Department of Consumer Legal Services, an "I / Thou" relationship between Consumers and Lawyers.
We, humbly, suggest that the "I / Thou" relationship be the focus of the Review, as we trust that when the "eyes" of the consumers have it, the "noses" of lawyers will find it much harder to be diverted to their ignoble instincts of sniffing for clients' funds so keeping their minds clearer and properly on the noble pursuit of Justice, at their cost if they transgress in not achieving it.
LAW WATCH AUSTRALIA INC.
C/O 58 Thomas Street, East Brighton, Victoria 3187
6/29 Sackville street, Kew, Vic. 3101
54 Dally Street, Clifton Hill, Vic.
Legal Practice Act Review – Issues Paper
by Peter A. Sallmann and Richard T. Wright published by the Department of Justice, Victoria.