Double the trouble

Spanking lawyers for misconduct is a double-handed affair, with professional and statutory bodies passing the parcel between themselves … Fractious row breaks out in Queensland ... Tom Westbrook examines the omelet that is "professional regulation" 

IT TAKES a certain kind of genius to design the quangos that discipline lawyers and theoretically "regulate" the legal profession.

The two pronged bureax de spank system, where commissioners and professional bodies double handle investigations, comes at great cost and limited effectiveness. 

In Queensland even the commissioner, John Briton, says it's inefficient.

"I'm always wary when I get a call from Justinian, I'm worried you are going to take the piss," he said. "There is an incredible amount of double handling and it is a very expensive exercise. 

We could save one hell of a lot of money if we did not refer complaints and just dealt with them all in house."

In NSW the Office of the Legal Services Commissioner handles just over two-thirds of complaints, but the Law Society does seven times more prosecuting, according to an Austlii search.

"There is no formal process for determining whether a complaint should be referred to the Law Institute of Victoria or Victorian Bar," according to the office of the commissioner there, Michael McGarvie.

In NSW the OLSC told us:

"The Assistant Commissioners will read the complaint and make a decision at that point who would be best to deal with the complaint."

And how is that decision made?

"If it was something that we deemed it would be more appropriate for the Bar Association to deal with, we would send it to them."

Likewise for the Law Society.

"The Bar Association and the Law Society can always send the complaint back to us if they don't think it is appropriate for then to deal with."

In other words, we're in the province of murky discretions and deemed appropriateness. 

Each of the eastern states operates a co-regulatory regime: since 1994 in NSW, since 2005 in Victoria and since 2004.

Queensland's adoption of the structure followed a campaign by the Courier-Mail about "Caesar judging Caesar" and the Law Society's botched handling of more than 200 complaints against Brisbane law firm (Rhino) Baker Johnson.

As a result the Queensland Legal Services Commissioner is charged with investigating complaints and punishing miscreants.

Yet, there is not a "single desk" for clients with gripes.

Across the eastern states, anywhere between a fifth and a half of complaints are farmed out to the professional bodies (bar associations and law societies) to investigate.

Percentage of cases referred to professional bodies for investigation
 

After the professional bodies investigate, in Victoria and Queensland at least, they make a recommendation and turn over what they've done to the commissioner.

The commissioners then look at it all again to see if they agree with what is recommended. 

It's a different story again when it comes to prosecuting: in Queensland and Victoria, the commissioner does all the prosecuting, in NSW it's the Law Society that takes on most of that role.

In the 2010-2011 financial year just five prosecutions before the Administrative Decisions Tribunal by the commissioner were reported by Austlii, compared with 38 by the Law Society.

In the previous financial year just one matter brought before the ADT by the commissioner was reported (compared with 21 brought by the Law Society).

This is despite the commissioner's office drawing $4 million a year from the public purpose fund to regulate the profession.

It has been reported that legal regulation cost blowouts pushed east coast public purpose funds into deficit in 2010.

In all mainland eastern states there are no hard and fast rules about who is supposed to deal with the more than 5,000 complaints they receive in total each year.

Commissioners just palm off matters where they deem it to be appropriate.

Few complaints actually make it to a tribunal (QCAT, the ADT or VCAT). Most outcomes are mediated.

In Queensland, almost a quarter of complaints on the books in the 2010-2011 financial year were summarily dismissed. A quarter of those dismissals concerned family law matters.

Victoria collects the most comprehensive data about what happens to disciplinary complaints.

About a tenth are found to have no basis, a quarter are withdrawn after an explanation, another quarter are found to insufficiently serious to take to VCAT and 10 percent are, in the commissioner's opinion likely to lead to a guilty finding at VCAT.

Less than one percent actually make it there.

Total complaints, investigations and prosecutions in QLD, NSW and VIC
 

In Queensland (where, incidentally, male solicitors over 60 are the most complained about lawyers and where the investigative palm-off rates are highest) the inefficiencies are coming to a head.

In a recent newsletter, commissioner John Briton, laid into the Queensland Law Society president, John de Groot, saying the QLS reneged on a deal inked in 2011 that it would give-up investigating complaints and let the commissioner do it all.

Dr de Groot had said in this piece earlier in June that the law society's role in professional "self-regulation" should continue. "It is a key characteristic that distinguishes us from a trade union," he declared.

"We don't have a system of self-regulation in Queensland and haven't since 2004," Mr Briton fired back.

"Our current system of co-regulation is extravagantly expensive and otherwise inefficient and needs reform."

He said cutting out the QLS from investigation could save $400,000 annually and allow the public purpose fund to earn another $800,000 in interest each year.

The commissioner told Justinian the law society "would still be meaningfully engaged in setting professional standards" under such reforms.

Exactly who does what under the co-regulatory system is a tangle and is set to remain so under the new national reform scheme.

It is expected that a schedule attached to the reform legislation will list the regulatory bodies in each state and preserve the current arrangements.

In Queensland one person complained about the commissioner's office itself last financial year.

However, the overall rate of unhappiness is declining - all states recorded a drop in the most recent total of year-on-year complaints.