Byrne v Marles reversed by legislation

I wrote about Byrne v Marles [2008] VSCA 78 here, and suggested reversal by legislation as a possible outcome.  The government slipped the Professional Standards and Legal Profession Act Amendment Act, 2008 through pretty quietly.  Two new sub-sections in the Legal Profession Act, 2004 add to the existing parent sections that nothing within them gives lawyers a right to be heard in relation to how a complaint is to be dealt with, or whether it should be summarily dismissed.  The relevant sections including their additions are set out below, and apply to complaints received by the Commissioner after 11 December 2008. I suggest that regardless of whether the Commissioner has an obligation to invite lawyers to do so, they should often take up these issues at the outset to ensure that there is in fact a valid disciplinary complaint, that its boundaries are clear and not exceeded, and that the Commissioner does not otherwise act without power.

I am not sure about the public policy merit of the amendment, and it flies in the face of some of the views of some of Victoria’s best judges, since the acknowledged purpose of the amendments is to reverse the previous law as ascertained and declared by the Court of Appeal in Byrne v Marles [2008] VSCA 78 (see this post). The effect of the decision was to require a clear articulation of what the complainant wished to complain about, a clear articulation of how it was said that the impugned conduct would warrant discipline if established, and a clear articulation of what was being treated as a civil complaint, and what as a disciplinary complaint — two species of complaint which may be made without differentiation in the one document by the complainant, but the standing requirements for each of which are different. For the same reason that pleadings serve a useful purpose in civil proceedings, clarity from the start enhances rather than hinders the efficient disposition of complaints.

Hopefully, the legislation will not produce a reversion to bad old practices which were criticised by the Court of Appeal. Rather, I hope its only effect will be simply to ensure that a discussion about the preliminary issues identified by the Court of Appeal need be had only in those cases where it is needed. A complaint of acting in the face of a conflict of recognised duties, for example, is clearly capable of being a disciplinary complaint, and there may well be no apparent reason for considering summary dismissal. Since the Court of Appeal’s decision, it seems to me, the Commissioner’s practice has been to send a letter at the start of every complaint providing the lawyer respondent an opportunity to be heard within 7 days in relation to whether the thing she has published to them is in fact a disciplinary complaint under the Act, whether it should be characterised as a civil complaint, a disciplinary complaint, or a bit of both, and whether it or any part of it should be summarily dismissed. Presumably far greater minds than mine have advised her to do so, but it seems to me that the right to be heard on whether what purports to be a complaint is in fact a complaint would arise only in those cases where there is some room for doubt, and so need not bog down the handling of every complaint. If in such cases the legislation shaves a week or 10 days off getting down to business, then that’s great, except that complaint handling by the Commissioner’s office at the moment is characterised by extraordinary delays anyway, so that it probably will not make all that much difference in the long run.

Often, an understanding of a complaint requires a reading of the numerous attachments. Not infrequently, it is not until I have distilled all of the information contained in all of the attachments that I have a proper appreciation of the complainant’s position. It is a big ask to demand that the Commissioner engage in that kind of analysis at the outset. I think she should. But if it is something which is impractical, then it seems to me that at least in some relatively complicated cases, the Commissioner should refrain from imposing her own characterisation on things until such time as either (i) she has heard from the lawyer in that regard, or (ii) (if it reasonable to require it given the characteristics of the complainant) she has compelled better articulation of the complaint, a step which I suspect should be more routine than it currently is.

The Commissioner and her predecessors have always received a great many complaints. Her office is very busy. The natural inclination is to get complaints received out quickly without close analysis and see what the lawyer says. There is a reliance in this strategy on the lawyer to spell out the story in a comprehensible form. That is undesirable. The lawyer’s greater ability to articulate things in writing and to engage in persuasive advocacy creates an imbalance which, in the environment of considering written exchanges, allows the lawyer to choose the issues. The slacker and more diffuse the complaint, in other words, the easier an obfuscatory response is. I have absolutely no doubt that in many cases, the only way for things to work properly would be for a staffmember in the Commissioner’s office to conduct an oral interview of the complainant, and then put together a complaint. (In fact, I believe there is a whole industry of instruction takers / complaint takers / letter writers / chronologists out there waiting to be seized upon by out of work professionals in the downturn, but that’s another post, which will also involve tales of my legal tourism in India where black gowned advocates sidled up in the yard of the Bangalore Supreme Court murmuring ‘You want affidavit? I give you good price.’) Perhaps it already occurs occasionally; I don’t know.

There would be profound costs implications of such a course, but judicious selection of the matters to use this procedure in could ameliorate them, and the whole complaint might well take less time in the long run. There is also the problem that the complaint drafter would inevitably become an advocate for the complainant. That could be solved by assigning investigation to another complaints handler.

The Commissioner has been commendably disciplined compared with certain predecessors in weeding out complaints which are out of time or have some other relatively obviously ascertainable jurisdictional defect. But I think her office could improve its analysis of whether the allegations actually give rise to a disciplinary complaint, and if so, what its nature is. It is not always the case that the practitioner can tell, from the complaint and the publication letter, what kind of unsatisfactory professional conduct or professional misconduct he or she is said to have engaged in, and I think that a practitioner should know not only what it is said that he or she has done wrong, but in what way it is said to be wrong. There will be cases where it is not possible at the outset for the Commissioner to give an answer to each of the questions posed below at the outset. But the Commissioner should do the best she can, because it is intrinsic to the nature of a complaint as defined under the Act that it be a written statement detailing allegations of conduct which, if established, would amount to unsatisfactory professional conduct or professional misconduct. So, for the Commissoner to identify that there is a complaint, she must identify allegations of proscribed conduct. The lawyer should get the balance of that analysis from the outset.

1. Is a breach of a conduct rule alleged? If so, it is relevant not only because the elements of the rule may be addressed directly in the practitioner’s response, but because the practitioner’s knowledge of the prohibition contained in the rule is a central matter in evaluating the wrongfulness of the breach.

2. Is it said that the breach of the rule also amounts to conduct other reputable lawyers would regard as disgraceful and dishonourable? If so, the lawyer should know that, not only because the consequences of such a finding are likely to be far more severe, but because he or she might want to do his or her own investigation of what other lawyers tend to do in similar situations.

3. Is it alleged that conduct has been engaged in which amounts to an offence under the Legal Profession Act, 2004 or some other Act? If so, the lawyer might want to invoke the limited privilege against self-incrimination afforded by s. 4.4.11(7) of the Act, and the criminal law relating to matters such as the right to silence may colour the relationship between the investigator and the alleged criminal, even if they do not directly apply. For example, a responsible investigator is likely to require clearer and more specific articulation of a complaint in such circumstances.

4. Is it contemplated that the lawyer might lose his or her right to practise? if so, the privilege against penalties might be invoked.

5. Is compensation being claimed? If so, is it being claimed in the civil dispute, the disciplinary complaint, or both? That may affect whether the practitioner notifies the complaint, and if so which part of it, to his professional indemnity insurer, and possibly whether he or she is entitled to be indemnified for the legal costs of defending the complaint or part of it.

Surprisingly often, I am briefed in matters in which a great deal of correspondence has been entered into in relation to allegations which I look at and, after a bit of research, conclude that the conduct alleged is actually not improper in any relevant legal sense. Time and again, the Courts castigate legal regulators for not grappling with the fundamental issues of (i) exactly what the complainant should be taken to mean to have said by way of complaint (which is the only thing the Commissioner and other regulators have power to investigate unless they take the extraordinary step of an own-motion investigation), and (ii) whether in the case of each thing complained about, if established, it would amount to a departure from the norms of conduct such as to warrant discipline: see Legal Services Commissioner v SG [2008] NSWADT 48 (noted here) Byrne v Marles, SPB v Law Institute of Victoria [2005] VSC 509, noted here and Power v Hamond [2006] VSCA 25, e.g. at [74], noted here.

The justifications for the amendment claimed by the Attorney General (see below) assume that all purported complaints are in fact legitimate disciplinary complaints, so that allowing lawyers to argue the point is only to invite delay and expense which is unnecessary. But that is not so. Efficiency as well as fairness is generated when comprehensible allegations are published. And where the preliminary phase reveals that the Commissioner’s jurisdiction is not in fact properly invoked, then not only is an unnecessary investigation avoided, but the scandal of the state exercising extraordinarily invasive powers improperly is avoided.

Nuts and bolts

The legislation received royal assent on 11 December 2008, and commenced the next day: s. 2.  A new transitional provision — clause 14.1 of Schedule 2 to the Legal Profession Act, 2004 — means that the new law will apply only to complaints made after 11 December 2008.  I think a complaint is ‘made’ when it is received by the Legal Services Commissioner; that is how s. 4.2.7 has traditionally been interpreted, which deals with the time limit for ‘making’ complaints.

Attorney General Hulls’s second reading speech in the Legislative Assembly on 29 October 2008 was as follows:

‘This bill also makes certain amendments to the Legal Profession Act 2004 to clarify that the legal services commissioner is not required to seek submissions from legal practitioners at the pre-investigation stage of the complaint handling process. These amendments are in response to a recent decision of the Court of Appeal in the case of Byrne v. Marles and Anor. The court ruled that the commissioner had denied a practitioner natural justice when the commissioner did not give the practitioner the opportunity to make submissions at the pre-investigation stage of the complaint handling process.

This decision is not consistent with the policy intent of the Legal Profession Act 2004 which was to create a consumer-friendly, efficient and cost-effective complaint handling system. The effect of the decision is that the commissioner must now allow all practitioners to make submissions prior to the commencement of an investigation on issues such as whether the commissioner should categorise a complaint as a disciplinary complaint or civil dispute, or exercise the commissioner’s powers to summarily dismiss a complaint. This has an adverse impact including that:

  • the commissioner may be perceived as biased in favour of practitioners by providing practitioners (and not complainants) with the right to make submissions on complaints and in making a decision whether to accept a complaint or dismiss it without reference to the complainant;
  • practitioners may make full submissions on the content of the complaint rather than the preliminary issue of how the commissioner should deal with it, in effect rehearsing their arguments for later;
  • the complaints handling process will take longer, have an adverse impact on efficiency and will be more costly;
  • the process will not add value to the system, as practitioners are already given the right to make full submissions as part of the investigation of a complaint.

Accordingly, the bill provides for two amendments to the Legal Profession Act to clarify the original intentions of the provisions: an amendment to section 4.2.8 to clarify that, at the time of notifying a practitioner of a complaint, the commissioner is not required to give a practitioner an opportunity to make a submission as to whether to treat a complaint as a disciplinary complaint, civil complaint or both; an amendment to section 4.2.10 to clarify that the commissioner is not required to give a complainant or practitioner an opportunity to make a submission before exercising his/her powers to summarily dismiss a complaint.

These amendments will not be retrospective. Thus the Byrne v. Marles and Anor decision will stand with respect to that case and to any other complaint lodged prior to the commencement of these amendments. I commend the bill to the house.’

The Attorney-General said in his statement in accordance with Charter of Human Rights and Responsibilities Act of the part of the Act in question:

‘The bill amends the Legal Profession Act 2004 to clarify the role of the legal services commissioner following the Court of  Appeal ruling in the case of Byrne v. Marles and Anor. The bill amends the Legal Profession Act to clarify that at the time of notifying an Australian legal practitioner or law practice of a complaint, the commissioner is not required to provide them with an opportunity to be heard or make a submission as to how the complaint is to be dealt with. It also amends the Legal Profession Act to clarify that the commissioner is not required to give a complainant, a law practice or Australian legal practitioner an opportunity to be heard or make a submission before determining whether or not to dismiss a complaint summarily. The amendments will apply to a complaint made on or after commencement of the Professional Standards and Legal Profession Acts Amendment Act 2008.

The amendments to the Legal Profession Act 2004 do not engage any human rights protected by the charter, in particular the right to a fair hearing, as the complaint-handling system is not a civil proceeding.’

The relevant sections read as set out below. The new bits are in bold.

4.2.8. Notification

(1) The Commissioner must give a law practice or an Australian legal practitioner written notice of a complaint made about the practice or practitioner as soon as practicable after the complaint is made.

(2) The notice must include-

(a) the name of the complainant; and

(b) details of the nature of the complaint.

(3) Nothing in this section requires the Commissioner to give the law practice or Australian legal practitioner an opportunity to be heard or make a submission to the Commissioner before the Commissioner determines how the complaint is to be dealt with.

‘Summary dismissal of complaints

4.2.10. Summary dismissal of complaints

(1) The Commissioner may dismiss a complaint if-

(a) further details are not given, or the details of the complaint or further details are not verified, as required by the Commissioner under section 4.2.9; or

(b) the complaint is vexatious, misconceived, frivolous or lacking in substance; or

(c) the conduct complained about has been the subject of a previous complaint that has been dismissed; or

(d) the conduct complained about is the subject of another complaint; or

(e) the complaint is not one that the Commissioner has power to deal with; or

(f) in the case of a disciplinary complaint, the Commissioner, having considered the complaint, forms the view that the complaint requires no further investigation.

(2) If the Commissioner dismisses a complaint under this section, he or she must give the complainant a written notice of the dismissal including the reasons for the dismissal.

(3) The Commissioner is not required to give a complainant, a law practice or an Australian legal practitioner an opportunity to be heard or make a submission to the Commissioner before determining whether or not to dismiss a complaint under this section.’

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