Rotten one day, perfect the next: Queensland’s complaints system

Now, that’s a cheap headline, I know, but I couldn’t resist. Queensland Legal Services Commissioner John Birton’s recent speech extolling the virtues of his office does read a bit like that, but probably deservedly so. The statistics he quotes speak for themselves: he’s not falling prey to the tendency of some regulators to drown in going through the procedures of unmeritorious complaints and having no time for greater proactivity. On the contrary, he is chortling about instituting an average of 22 investigations of his own initiative every month. For those who can’t be bothered reading it, here are some interesting tidbits:

  • Limit on personal injury fees There is a statutory rule in Queensland that a solicitor — it does not apply to barristers — can charge no more than 50% of the amount a plaintiff takes away in his pocket and does not have to refund to the government in a no-win no-fee personal injuries suit:

Section 481C of the Queensland Law Society Act 1952 says that a solicitor can bill a client no more than half the amount to which the client is entitled under a judgment or settlement less any refunds the client is required to pay and ‘the total amount of disbursements the
client must pay, or reimburse, to the practitioner or firm’. 

  • Own initiative investigations The Commissioner is proactive — more proactive than his Victorian counterpart, I imagine — in  investigating of his own initiative:

‘The Commission is not only responding in a more timely way to complaints but becoming increasingly pro-active. We have initiated an average of 22 investigation matters or “own motion investigations” a month over the year to date, or 21% of all new matters, compared to 7 a month or 7% of all new matters in 2005-06 and 3 a month or 2% of all new matters in 2004-05.

The investigation matter power is an important power to have given our fundamental goal to protect the rights of legal consumers and to improve standards of conduct in the profession. It is important for the obvious reason that it would be silly to assume that consumers, even sophisticated repeat users of legal services will always be able to recognize unsatisfactory professional conduct or professional misconduct when they see it, or be able and willing to complain about it if they do, let alone when their lawyers have taken pains to disguise it.

We initiate some investigation matters into conduct (or more accurately, suspected conduct) that comes to our attention incidentally, in the course of investigating complaints, including unsubstantiated complaints about other matters. We initiate others by reason of our obligation under recent amendments to the Personal Injuries Proceedings Act 2002 to enforce the restrictions on the advertising of personal injury services. We initiate many of them however by way of a deliberate effort to target practices and especially apparently widespread practices that appear to put consumers
and especially vulnerable consumers at risk.’

  •  Colleagues’ complaints Of 98 conduct complaints received over a year against Queensland’s 773 barristers, 7 were from other barristers (only 1 barrister complained about another barrister in NSW over the same period), and 8 were from solicitors other than the instructing solicitor (in NSW, one in five complaints against barristers were from solicitors other than the instructing solicitor);
  • Dobbing He exhorts practitioners to report suspected wrongful conduct of other practitioners as a duty to the profession, despite there apparently being no Queensland correlate of rule 30 of Victoria’s solicitors’ rules, noting:

‘What can I say? The Commission can only play the cards it’s dealt. I am reminded in this context of what Gary Crooke QC had to say at last year’s conference. He told you that the English Bar had recently introduced an ethical guideline requiring members to report unsatisfactory conduct by colleagues. He argued that “a truly ethical environment at the Bar is one where unacceptable conduct will not be tolerated and the unworthy will be spurned” and he urged you to think “very squarely… before you decide to do nothing about it.”

I can only say in the same vein that if you have evidence that any of your colleagues have conducted themselves inappropriately, tell us about it and we’ll deal with it, and we’ll deal with it on its merits and objectively, given the facts as we discover them after investigation. [Footnote: this is no minor point. It is not at all unusual for members of the Bar when they are introduced to me to tell me anecdotes about wrongdoing by anonymous colleagues that would, if they were reported and proved, almost certainly result in disciplinary action. In fact, I had just such a conversation at this very conference. Disturbingly, some of the anecdotes I’m told describe not one-off conduct by individuals but practices said to be, if not widespread, then at least not uncommon.]’

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