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.i1' Mr. Peter Hennessy Executive Director NSW Law Reform Commission GPO Box. 5199
Sydney. NSW 1044

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p.O.Box ?7e paninia NS1\,221 3

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For Legally Abused Citizens tnc. (reg No y27021

29th August, 2000 Dear Mr. Hennessy, Thank you for asking FLAC for its comments on the issues that need to be considered in your inquiry into complaints against legal practitioners under part 10 ofthe Legal profession Act 19g7.
We would fnstly point out that this is the third inquiry the NSW Law Reform Commission has held into the regulation ofthe legal profession since 1977 and the evidence clearly proves that the profession is not capable of self regulation.

FLAC believes that any body set up to regulate the legal profession must be independent of the profession and
accountable by external scrutiny. This situation does not exist at present. lnvestigations carried out by the office ofthe Legal Services Commissioner for example are not subject to an inquiry by the Ombudsman or, it would appear, by parliament. The Law Reform Commission should take into consideration the the former Auditor General, Tony Haris, June 1997 report which found that the present system was deficient and did not meet any ofthe criteria needed for an effective complaints system. The report also found that there was a potential conflict of interests in the Law Society ilrvestigating cornplaints against solicitors in that the Law Society was the sole share holder in the solicitors' indemnitv insurance fund "Law Cover".
Because of this and other problems the Auditor General conclutled that "the capacity and or commitment of theLawSocietytowardsdiscipliningitsmembersandimprovingpracticestandardsisindoubt.', (p.p.6415 NSW Auditor General Performance Audit Report, The Law Society, The Bar Council, The Legal Services

Commissioner, June 1997)

This fact is ofparticular significance in light ofthe fact that FLAC has evidence that the Legal Services commissioner is dismissing serious complaints on the grounds that the conduct

involved does not constitute misconduct or unsatisfactory professional conduct and that the complainant should seek redress through a civil case in negligence.

If proper standards of legal practice have to be maintained by wronged lega[ consumers taking civil cases through courts system then clearly the OLSC serves no useful purpose and should, in the pubiic interest, be
closedThe money saved can then be used to fund such cases.

FLAC believes that there are two very basic criteria that must be met for an effective legal complaints system.
Firstly strong Iegislation and secondly the right, impartial, structure to implement the legislatiol.

FLAC believes that the Office of the Legal Services Commissioner (OLSC) has been

a dismal failure and is in fact nothing more than a administrative mail box absorbing and burying complaints about legal practitioners and closing files.

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There is no reason why it should continue to exist. There is evideuce proving that the OLSC along with the Law Society and Bar Association thinks that self regulation means "self protection. "

In this regard the NSW LAW Reform Comrnission, if this inquiry into the Office of the Legal Services Commissioner.
For example.

is

to be effective, must also hold an inquiry

Mr. A.H. complained to the OLSC that he had paid $5,000 to a solicitor in the presence of for medicaVlegal reports which Mr. H. later found out were not paid.
The Legal Services Commissioner claimed in a letter to

a barrister to pay

Mr A. H. that

the Barrister did not recall instructions

to apply the money specifically for medical reports.

The Commissioner said, "Without specific direct instructions in writing or orally I do not believe the practitioner was bound to apply the money only to the reports themselves.,'

However when another complailrant Mr. B.H. complained that his solicitor had not, despite his repeated specific "written instructions, introduced into court proceedings critical medical/legal repofis collcernilg damages he suffered in a personal injury case, the Commissioner informed Mr. B.H. that solicitors and barristers did not have to follow such instructions. This had happened despite the fact that the explanatory brochure that the OLSC provides to the public ',About the Office of the Legal Services Commissioner" clearly states, as an example of the kinds of complaints the oLSC can investigate is "the lawyer not acting according to the client's instructions."

Mr. P.A. hired a solicitor to review the file of a solicitor who had acted for him in a conventional conveyancing matter and had, as a consequence ofthe solicitors actions, exposed Mr.P.A. to substantial financial
loss.

Mr.P A's solicitor presented to the Law Society's Professional Standards Committee, who were investigating Mr.PA's complaint, a number of substantive points conceming conduct and errors of the convel'ancing
solicitor. The complaint was disnissed.

Mr. P.A's solicitor then asked the Legal Services Commissioner, in light of the fact that 12 issues of complaint had not been addressed and resolved, for a revielv.
The Legal Services Commissiouer informed Mr. A. that "aspects of the practitioners conduct nlight constitute grounds for a negligence claim in the courts" however such conduct is "not suffrcient to warrant disciplinary proceedings". When Mr. P.A. asked the Legal Services Commissioner to reconsider his decision on the grounds of documentation, which challenged the conveyancing solicitors strongest assertions and which had not been considered, he was informed that the matter was closed. The complaint cost

Mr

P.

A.

I I ,000 in legal costs.

In a letter to Mr. R.T. concerning a complaint about possible fraud by lawyers acting for the defendants in a matter in which he was involved, the Commissioner said, "The tactical approach of such solicitors is a matter for instructions from clients and corresponding advice from solicitors ... This communication between solicitor and client is protected by legal and professional privilege- I am not in a position to explore this communication."
as counsel in, and advising on, the complainants case and who had consequently, breached client/lawyer privilege by giving evidence in court against his former client's interests about the manner in which he had conducted the case, the Legal Services Commissioner claimed that he did not believe client/ lawyer privilege applied in such circumstances.

However In another serious complaint about a barrister who had been previously acting

"Since he (the banister) was not disclcsing information in the course ofpractice (which ofcourse he was) but rather as a wituess, it is nonetheless clear there has been no breach of confidentiality to you in him giving
evidence. "

The baristers own previous competence and due diligence was being attacked by the defendants, when he gave the evidence. Not only was client/lziwyer privilege breached by the banister bui there was also rnassive confl ict of interests involved.

In another complaint the Legal Services Commissioner dismissed he stated. "Legal practitioners are under little obligation to go behind their instructions or to explain the motivations oftheir ciients beyond establishing
the material that will be presented to the court." However he completely contradicted this statement in a complaint where larwers had failed to carry out written instructions. He claimed in a brush offletter he wrote to the complainant, "They (your lar.r,yers) were retained by you to exercise judgr-nent about strategy and evidence to be relied upon and it is appropriate for them to be left to do so.

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Letter to NSW Law Reform Commission

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FLAC has evidence that the OLSC is ignoring evidence that proves a complaint, and no matter what the weight of evidence or the seriousness of the matter, the OLSC dismisses tlie complaint on the grounds that there is allegedly "not enough" evidence to prove the matter.
The OLSC is also applying a very strict 3 year time limit For complaints to be made and is breaking up the substance of complaints made in time into "in time" and "out of time" segnents so that a proper invesiigation and consideration ofthe conduct under question cannot be made.
The Commission should hear evidence frorn the public so that the individual experiences of those who made complaints to the OLSC, Law Society and Bar Association can be taken into consideration. In this regard we would welcome a member of your committee to address a FLAC meeting and to hear some of the problems members have experienced when making complaints under s10 ofthe Legal profession Act. an investigation finds that the Legal Services Commissioner is not acting in the spirit of the Act or to the extent ofhis powers under the Act then those effected by his actions should be eligible for any compensation occurring out ofhis failure to take appropriate action.

If

FLAC believes that it is imperative that there must be extemal scrutiny of any regulative body set up to handle complaints about lawyers and that the body itselfmust be independent ofihe professiol. In this regard a Board of legal quality Assurance with representatives of both the profession and the consumer
public (predorninately putrlic members) l,ith strong legislation so that both the public and the profession are left in no doubt as to the standards expected of a legal practitroner would be a good start in thi right direction.

FLAC also believes that gross negligence, repeated acts ofnegligence and incompetence should be disciplinary matters under an Act to reglilate the legal profession. Single acts ofnegligence should also. in the public interest, and in order to maintain standards ofpractice, be subjected to investigation and the necessary
and appropriate action taken.

be cost effective.

A professional conduct division ofthe Supreme Court where the Board ofLegal euality Assurance could take complaints for hearing that could award appropriate compensation and order ihe nec.riary disciplinary action - from undertaking further study in specific nreas ofpractice to being struck offthe role - would save tilne and

In this regard we believe that S.155 (3) (a) and (b) and (4) ofthe Legal Profession Act 1987 is clearly deficient.

A legal practitioner should be reprimanded on the evidence and facts regardless of anv other consideration.
is also imperative that a single act of incompetence and lack ofdue diligence should be investigated and appropriate action taken in order to protect the public from any further sub standard practices by the practitioner thatmay occur in the future. It is i nonsense to do uothing and wait until further complaints are made against the practitioner before taking appropriate action.

Certainly not on whether or not he "agees" to be reprimanded. It

How many members ofthe public

is a legal practitioner allowed to harm before appropriate action is taken? a

This is an initial response to your invitation lbr information we consider of importance and written submission will be made later.

full and detailed

FLAC would like the opportunity to addrsss',rour committee. We look forward to receiving a copy of your
discussion paper Yours sincerely,

Joyce Campbell Secretary FLAC

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