by the legal profession. It is a fact well acknowledged by the public that the legal profession is intrinsically incapable in principle and in practice of fairly and justly administering, hearing, and adjudicating against its members in respect of complaints from consumers of legal services. The legal profession has shown in fact and in truth over many decades that its intrinsic conflict of interest makes it incapable of impartiality, morality, and professionalism. The regulatory and complaints against lawyers system should and must be, therefore, truly independent of the legal profession no matter what the Institute of Victoria and the Victorian Bar Association say. They are very much out of touch with the community if they believe that there is no community perception of their conflict of interest.
After consulting 500 persons at random, Law Watch Australia Inc. has not been able to find one person of the public who was prepared to say that there were and are any positive benefits from the former self- regulatory system and the current co-regulatory system. The 500 persons interviewed made responses to the effect that only positive detriments flowed and flow from the self-regulatory and co-regulatory systems. They said that these positive detriments were and are that :-
"the legal profession
1. could and would, as it has done before, prevent making proper or any payments to victims of the legal profession from the fidelity trust fund, so that the legal profession could and would use the money for its own functions and adornments and in other ways deplete the funds that should be available for proper compensation to victim consumers of lawyer services and for legal aid;
2. could and would, as it has done before, shield itself against legitimate complaints by frustrating and unfairly and unjustly dismissing them;
3. being proud, arrogant, powerful, skilful manipulators, and too easily offended by any suggestion that its members fall short of ethical considerations and practices, skills, knowledge and ability to act competently and morally, would, as it has done before, manipulate the facts to its own ends by clever oration and double speak, to the detriment of consumers of legal services;
- which feels threatened even by the most constructive of criticisms from lay people, could and would, as it has done before, mislead consumers of the true intention and meaning of the law;
- which over the decades of legal profession regulatory system has shown to the public that it lacks integrity and is fearful of losing its privileges and status in the community could and would, as it has done before, stoop to great lengths to persuade its colleagues to "tow the line" and 'white wash' any investigation of consumer complaints;
- will turn over half a legal library to clog most disconcertingly a consumer's case against a member of the legal profession, and so confuse the consumer to an unfair compliance.
- disregarded for decades and disregards still, its fiduciary responsibility to clients by virtue of its siphoning of client's money from its trust accounts, in clients' ignorance;
- fails to self-examine its latent conflict of interest in respect of its financing out of interest on clients' money its own association activities, government organizations, and legal institutions;
- fails to understand that its unethical means of expropriating the interest on clients' money do not justify its ends of using the money for good purposes;
10. maintained for decades and maintains still, a silence in respect to its immorality of funding "good causes" and in respect of its continual breaches of fiduciary duty."
Whilst this information from Law Watch Australia Inc. is not empirical evidence of positive detriments against self-regulatory and co- regulatory systems, this is the best feedback that its members could get from the general public interviewed at random.
Law Watch Australia Inc. finds favour with some proposals from the models for regulation and dispute resolution presented to Crown Counsel by the Federation of Community Legal Centres, by the Legal Ombudsman, and by Dr. Barry Perry.
But, before embarking on a close analysis of those models, notwithstanding the plethora of crucial components already derived from those models, Law Watch Australia Inc. being mindful that great caution must be exercised because of the potential detrimental implications that a hasty introduction of another flawed scheme could have for both the legal profession and consumers of legal services, wishes to set out the following key components which it regards must lay the foundations for a new regulatory-complaints scheme. These key components are as follows :-
- A SET OF CLEAR, SIMPLE AIMS AND OBJECTIVES SET BY PARLIAMENT & ENSHRINED IN LEGISLATION.
Now that it has officially become recognized that the current complaints system of co-regulation consisting of the Legal Practice Board, Recognized Professional Lawyer Associations, Legal Ombudsman, and Legal Profession Tribunal is not only complex, confusing in its aims and objectives, cumbersome, expensive, duplicatory, inadequate in its investigation, processes and procedures, unsatisfactory in its monitoring of activities of the lawyer associations, deficient in its review functions, and severely lacking in independence and productivity to consumers of legal services, but is a down-right bureaucratic sham created, it seems to Law Watch Australia Inc, to fail in order to facilitate a return to a greater than ever lawyer self-regulatory and complaints system, a complete overhaul of the system is imperative together with an overhaul of the abusive judicial system.
Having appeased the public anger against "thieving and negligent lawyers" by giving the people a Legal Ombudsman, the Government gave the public a charade in the form of an Ombudsman with little authority, and little skilled man-power to correct the wrongs done to consumers, and instead gave the lawyer associations much strangle-hold over the system to strangle it, thereby giving productive time to re-organize and show cause why the return to self-regulation is preferred. Needless to say that many thousands of consumers are despondent and even contemptuous of the Government for this betrayal of them. Many hundreds of consumers have been forced to turn away from the complaints system altogether and suffer their lot in silence. Those who can still afford to enter the shamefully expensive court system to run professional negligence actions against their lawyers, having to mortgage their homes to gain access, have done so, but they too, do so in ambivalent hope and no guarantee of a fair and just result, somewhat like the survivors of the Holocaust, begging for recognition and to hear: "Sorry", and knowing that any token compensation they receive from the system of lawyers, will be dwindled away by lawyer fees. The irony of this human tragedy is that none-the-less they go forth in hope for their piric victory. A Government of, for, and by the people has a responsibility to redress these wrongs now.
The community does not want a Legal Ombudsman limited to a role of mere review and direction to prosecute. It wants a truly independent Legal Ombudsman, appointed for 5 years, essentially a non - lawyer academic well versed in legal ethics and general philosophy; with impeccable, independent reasoning ability; sound judgment; investigative and analytical skills; with high appreciation of research; with strong interpersonal and communication skills; with high ability to liase with external sources to gain information relating to global 'best practice' trends; with natural, effective leadership and management skills and strong team orientation; with a proactive nature; with determination and genuine commitment to make a significant contribution to consumer protection and to legal profession self-analysis and education; equipped with full and clear aims, objectives, and wide powers enshrined in Legislation, together with an adequate team of devoted and highly, multi - skilled staff, fully independent of professional lawyer associations to genuinely and properly hear, investigate and resolve consumer complaints against lawyers.
- HIGH STANDARDS OF LEGAL PROFESSIONAL CONDUCT MUST BE CODIFIED IN THE LEGISLATION AND TRUE INDEPENDENCE FROM THE LEGAL PROFESSION CREATED.
An independent complaints system is crucial to the health of the public. Law Watch members accept that it is by the community maintaining "the health and strength of the legal profession" that the community will benefit. This is not to say, however, as the Law Institute of Victoria says, that the health and strength of the legal profession is to be maintained by the legal professional association/s remaining directly involved in the complaints system. Law Watch finds the suggestion that the health and strength of the legal profession will be affected if the professional associations are removed from direct involvement in the regulatory and complaints system, ludicrous. If the L.I.V. suggestion means that the professions' "health and strength" will suffer by virtue of reduced funds from the wrots that the legal profession on-goingly commits, then perhaps that is so, but then, this is from the public view-point, a good thing. Rather, than that scenario prevailing, Law Watch says that the health and strength of the legal profession will be greatly enhanced and maintained by it not being so involved, and by the community instead being in control of the system. Law Watch says that the community alone should hold the key and open the door to the system of hearing complaints against the "proud and ancient profession" which has, whilst in self-regulation for decades, failed demonstrably to "develop, maintain, and enhance professional standards and behaviour of its colleagues". The community says that the legal profession should not be trusted by the public in 2001 to do that which it should have done, but did not do, throughout the previous decades of self-regulation. Law Watch agrees with that view-point.
The nub of the community argument is that the complaints of the consumers will be best handled by the consumer public or under their auspices because the consumer public, unlike the legal profession, have a greater commitment to see that their complaints are properly handled in a public system committed to ensure that the legal profession work to set rules of high standards, written to be unequivocally understood by the legal profession and consumers alike. It is proposed that by this means the legal profession will see the wisdom of merging its own "strongest possible interest" in "ensuring that complaints are properly handled" with the strongest possible interest of consumers that proper handling become a reality. This best practice, says Law Watch, has to be thrust upon the rebellious legal profession at the current time to teach it to know what is equally good for it, ie. that only out of a commitment to an "I-Thou relationship", being the foundation for the complaints system, as the philosopher, Martin Buber educates, can there be a true and objective health and strength for consumers and for the legal profession alike. In other words, 'best practice' will occur when there is a commitment by the legal profession not to injure the consumer and when there is fair dealing and transparent compensation to the consumer to the degree of doing unto the consumer as lawyers would like it done unto themselves. The question of whether this ideal will work if it is imposed upon a legal profession rather than first learned by the legal profession given its pride, arrogance, and power as it asserts that it alone is best suited to hear complaints from consumers against its members, is an open philosophical question unable to be resolved empirically.
Law Watch beliefs that it would be churlish to expect the public to wait to receive their just deserts until the legal profession is educated and becomes a willing participant in the ideal practice of injury prevention and of proper injury resolution by proper compensation and expressed genuine sorrow. Law Watch is of the view that the ideal practice must be imposed no matter what opposition the legal profession puts up, until the legal profession willingly accepts it by knowledge and wisdom through an education that turns the tide once and for all, against the adversarial ideology. Law Watch believes that it is crucial to the proper conduct of the legal profession and in the public interest that the legal profession's so called claim to injury of its "integrity" by the proposed removal of the professional association from direct involvement in the complaints process, be dismissed as having no substance. It is ironic that the legal profession itself suggests that its involvement in the formal, public regulatory and complaints processes is necessary to its own professional "proper conduct". The legal profession should understand, that no member of the public who urges the Government to create a truly independent, fair, transparent and accountable, 'external' public system, where the legal profession does not investigate its own kind, sit in judgment of its own kind, and enforce the law in respect of judgments for its own kind, is in any way opposed to the legal profession continuing internally to "police" the conduct of its own members" for the purpose of "developing and enhancing the ethical and practice standards of the profession". Why is it that only the legal profession cannot understand that the people demand that the legal profession should not be advocate, judge, jury, and enforcement agent in its own cause and to its own end? The people have been given no justification from the legal profession for continuing this outrageously undeserved privilege that no other profession enjoys.
- COST EFFECTIVENESS, FAIRNESS, EFFECTIVENESS, EFFICIENTCY, SIMPLICITY OF ACCESS, RULES, & STRUCTURE, AND TRANSPARENCY & ACCOUNTABILITY OF PROCESS BE ENSHRINED IN LEGISLATION FOR THE TRULY INDEPENDENT SCHEME.
Cost effectiveness is one of several desirable components, but not the primary or compelling component, and not a key principle such as fairness, that should be focussed on in the creation of a "best practice" Regulatory & Consumer Complaints Against Lawyers System. The Institute of Lawyers says that only the Institute can effectively contain costs of such a system, so the Regulator should be itself, and the complaints system should be under its sole control, or at best, under its auspices with only an independent Reviewer to over-see its operations. Law Watch answers this comic proposal as it deserves to be answered: Let's do away with costs altogether by the Institute doing away with the cause for complaint against lawyers. Law Watch says that the best way to get rid of lawyers' temptation to cause harm to consumers is not to give lawyers any opportunity to give in to their temptations, whereas the lawyer associations seem to be saying that the best way for there to be smaller costs in respect of complains against lawyers is to get rid of the temptations altogether by allowing lawyers to give in to them, and then letting the Institute cost - effectively and efficiently get rid of consumer complaints by cutting compensation to consumers. Law Watch says that the fundamental goal is to resolve consumer complaints in a fair and just way, and with proper compensation to consumers, and that costs of the process should not be a bar to this ultimate end, otherwise the Government might as well turn Libertarian and do as Oscar Wilde suggests: "The best way to get rid of temptation is to give in to it", and to this end: let the consumers complain, and let the lawyers cause harm, and let the Government keep out! Perhaps consumers will cease going to lawyers, so lawyers will not harm them, and the Government will not have the dilemma of how best to devise a costly system to service their opposing needs!
But as the current Victorian Labour Government is far from Libertarian, much closer to Liberal, its task, undoubtedly, to clean the regulatory slate of the former Liberal Government's scheme, introduced by Attorney General, Mrs. Jan Wade, and apparently has no wish to muddy the system further by a "quick fix" method that is bound to fail and waste more money on camouflaging the ills rather than curing them outright, and forever-more preventing a like return, it cannot, Law Watch suggests, compromise on the issue of independent assessment and fair resolution of consumer complaints at whatever reasonable costs are required. The system should be funded primarily by the lawyer associations and supplemented out of a Public Purpose Fund. The lawyer associations can redeem losses from their offending colleagues. Funding the system, but not out of interest on clients' money in lawyer trust accounts, will give the Institute and the Bar Council reason enough to do all in their power to persuade and cajole their colleagues to adhere to the professional conduct expected of them by Government decree and public expectation.
An independent, best practice, complaints handling scheme, the goal of which is undoubtedly to hear, investigate, and resolve complaints from consumers of legal services against their legal practitioners, fairly and expeditiously, and with the interest of maintaining and developing a healthy and strong "I – Thou" relationship between consumers and the legal profession, must be simple of access, and simple to administer; must have clear codified rules of professional ethics, and high standard of practice required of lawyers; and must have a process that is certain and reasonable; must be manned by highly skilled persons; must be speedy but sufficiently thorough in investigation and hearing; and uncompromisingly fair, just, and accountable, providing always full, reasonable explanation in word and in writing of its reasoned decisions; must, by means of its skillfulness, be cost-effective; must be cost free to the consumer -victim- complainant; must be adequately funded primarily by lawyers (as outlined in the former submission by Law Watch); and in structure and process be fully transparent and accountable to the public. In order to achieve these goals, no parallel or overlapping complaints systems or alternative Law Institute mediation or arbitration processes can exist. Law Watch prefers that the Courts not become vehicles for hearing complaints against lawyers because the association between Judges and their lawyer colleagues is too close and has the potential for conflict of interest. Law Watch strongly opposes any limitation placed on amount of compensation award, and the integration of the Legal Practice Tribunal with the Supreme Court, as in the QLD. model. Further, Law Watch does not support assimilation of the Legal Profession Tribunal with the Victorian Civil and Administrative Tribunal, a proposal made by the Law Institute of Victoria.
4. ONE REPOSITORY FOR RECEIVING AND RESOLVING COMPLAINTS AGAINST LAWYERS AND THE JUDICIARY IN THE ENTIRELY INDEPENDENT SCHEME ENSHRINED IN LEGISLATION.
Law Watch has outlined its proposed scheme in respect to its suggestion for one repository in its earlier submission. Law Watch agrees with Dr. Perry that "best practice" demands that there being only one repository for all consumer complaints against lawyers. Law watch strongly suggests that the one repository for complaints against the legal profession should also include complaints from the public (which can include complaints from lawyers) against members of the judiciary. This is preferred to the setting-up of a Judicial Commission not only on the grounds of cost effectiveness, but also for reasons of practicality, ease for information gathering, research purposes, and transfer to the Law Reform Council to investigate and propose changes in legislation, where it finds that systemic abuses are the root of the problem that facilitate singular lawyer abuses. A one repository could best handle complaints against judges as it would have the skills to determine whether the complaint against judges should be handled by the L.O. him/herself or go to the Legal Profession Tribunal for punishment and/or recommendation to Parliament for sanction and dismissal, and/or to the Law Reform Council for investigation and recommendation regarding systemic faults resulting in injustice. Law Watch says that a holistic approach is necessary because complaints against individual lawyers often involve doing something about faults in the judicial process and faults within Court Rules written by judges, and within the Legislation itself. For this reason Law Watch strongly urges Crown Counsel to raise for discussion this crucial and integral aspect of the complaints matter, with the Attorney General.
Law Watch believes that this crucial component would not be served by either the N.S.W. or QLD. models, both of which reinforce the domination by the legal profession in a system of complaints about itself.
5. SETTING HIGH STANDARDS, MAINTAINING HIGH STANDARDS, ENFORCING THE KEEPING TO THE HIGH STANDARDS SET, SHOULD BE ENSHRINED IN LEGISLATION.
Law Watch believes that high standards of professional conduct should be codified in legislation, as should also be the enforcement procedures so that the public can scrutinize and watch the Watchdog doing its job. Law Watch says that the highest of standards should also be set for Judges and for the Court and Tribunal network including the Sheriff's Office. It is for Parliament to set all the aims and objectives of the regulatory scheme and enshrine them in legislation. Like Dr. Perry, Law Watch favours an independent Legal Practice Board, (ie. independent of lawyers) to deal with professional standards matters. Like Dr. Perry, Law Watch favours that the common point of entry for all matters would be via the Legal Ombudsman's Office. Law Watch agrees with Dr. Perry in the suggestion that the Law Institute and Bar Council could be involved in setting and maintaining the professional standards. Law Watch believes that the public should also be involved in this. The legal profession should not itself set the standards as the Law Institute and the Bar Council have failed in these areas in the past decades of self-regulation and cannot be trusted to co-regulate in these areas again. They can and should regulate its members independently of the L.P.B. and they could and should make suggestions and submissions, like any member of the public, to the Regulator regarding professional standards.
6. RESOLVING CONSUMER DISPUTES EXPEDITIOUSLY, SPEEDLY, FAIRLY, JUSTLY,
AND ONCE AND FOR ALL.
Like Dr. Perry, Law Watch favours that the starting point for all matters of complaint be via the Legal Ombudsman. Unlike Dr. Perry, Law Watch would like to see the Legal Ombudsman have very wide powers and to be the vehicle for complaints against the judiciary as well, and in addition be the instigator for law reform where it finds systemic abuse over and above abuse committed by a singular lawyer. In this regard, Law Watch's proposals for complaint resolution go further than do any of the proposals from the other organizations and persons responding to the issues paper. Law Watch does this, despite that its proposals go beyond the terms of reference to Crown Counsel, because systemic abuse impacts on the matter at hand and Law Watch urges Crown Counsel to draw this issue to the attention of the Attorney General.
Satisfactory and final resolution of consumer complaints against lawyers is necessary. There should not be any necessity to have an appeals section because the complaints system should get it right the first time. If an appeal division became necessary, the cost
of its administration should be borne by the lawyers' associations, but in accordance with the fiduciary duty of lawyers to their clients, which demands that money in lawyer trust accounts not be siphoned to extraneous activities, such as an appeals division, without clients' permission that their interest be so used.
Law Watch supports the application of industry-based type bench-marks to the public authority independent of the legal profession, complaints handling system.
FURTHER TO OUR SUGGESTIONS AND COMMENTS GIVEN ABOVE, LAW WATCH AUSTRALIA INC. SUGGEST THAT THE STRENGTHS AND WEAKNESSES OF THE VARIOUS MODELS PROPOSED FOR REGULATION IN THE DISCUSSION PAPER ARE AS FOLLOWS :-