More on confidentiality and disciplinary hearings

A propos my post about an English solicitor’s revulsion for the reptiles of the press engorging themselves on the protection of the public by the public spanking of lawyers:  ACT’s lawyers are up in arms.  It seems that suddenly, disciplinary hearings are open to the public, with the transfer of lawyers’ discipline hearings to the ACT Civil and Administrative Tribunal.  Just like all the other hearings except for cases about terroists, spooks, nice people spooks think might be terrorists, spice, rapists and paedophiles.  Their Law Society won’t have it.  The Canberra Times editorialised on 27 April 2009 that everyone else suffers the slings and arrows thrown at them by maddies and baddies (as well as the genuinely aggrieved), and why should lawyers be different?

Why indeed?  Well, I often feel for the clients of lawyers, who have their confidences ripped open because someone — say their client’s husband — has decided that the lawyer in whom they confided their secrets as if in a modern day confessional did something wrong.  The identity of clients, and all features of the matter out of which a disciplinary prosecution springs as might identify the lawyer’s client should certainly be more anonymised than it is, at least on the net.  But otherwise? Bah!  Here’s where to go to look up decisions of the new Tribunal.  The Law Society’s response to the editorial was the following letter to the Editor:

‘There is much in your editorial (”The law must be the same for all”, April 27, p8) with which the legal profession would agree, principally the references to the public interest in justice being seen to be done.

There are statutory sanctions or penalties against falsely accusing a person of a crime or a civil wrong. There is no sanction or costs against falsely accusing a lawyer of professional misconduct or unsatisfactory professional conduct. That is to prevent members of the public being intimidated from making genuine complaints about instances of unprofessional conduct.

The trade-off has traditionally been the suppression of the lawyer’s name until the complaint has been sustained and the appeal period has passed. The reason is lawyers deal with disputes which always have dissatisfied parties, some of whom are subsequently motivated to make extravagant, specious or mischievous claims about their or the other party’s lawyer.

It has traditionally been like that here and elsewhere and it is not new. Canberra’s lawyers have had that protection continuously since 1970, almost 40 years. It was consciously retained when the Legislative Assembly passed the Legal Profession Act 2006. As far as we can tell it was dropped from the Legal Profession Act 2006 when the disciplinary provisions were transferred to the ACAT Act. We understand it was an error rather than a conscious act of government policy: we were certainly never consulted. This is not a simple issue. While justice must be seen to be done, natural justice and procedural fairness lead to the conclusion that complainants and those complained of have rights which should be protected.

Rod J.Barnett, president, ACT Law Society’

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