The Legal Services Commissioner’s annual report went online today. You can download the pdf by clicking here. The big news is that she’s put 2 new blokes on the staff, but the blokes to sheila ratio has actually decreased (to 1 in 20).
In the year to 30 June 2007, the Commissioner’s staff of 45 (including 6 part-timers) closed 2550 files. At the end of the disciplinary complaint process, the Commissioner has to decide whether the complaint is made out, unless it was summarily dismissed earlier. The test is whether VCAT would be reasonably likely to find a practitioner guilty of professional misconduct or unsatisfactory professional conduct. 5,089 enquiries gave rise to 1,487 disciplinary complaints, yielding a single instance where the Commissioner thought it was reasonably likely that VCAT would find the practitioner guilty of misconduct, and that was the matter reported in my previous post in which the barrister made a full confession from the outset of the investigation. The three other misconduct prosecutions were for failure to cooperate with the Commissioner’s investigations.
The 1,487 disciplinary complaints also yielded 64 instances where the Commissioner thought it was reasonably likely that VCAT would find the practitioner guilty of the lesser disciplinary offence of unsatisfactory conduct. She has a discretion whether to prosecute in these instances. She exercised that discretion in favour of laying charges just once, when some scamp attempted to charge for storage or retrieval of documents without a written agreement by the client. So 2 charges were laid as a result of the 5,089 enquiries. Additionally, 3 charges were laid because of non-cooperation with investigations. And 28 slaps over the wrist were privately inflicted in the form of reprimands and cautions. So: pity the professional discipline Bar, all hail to an unprecedentedly well behaved profession, and shame on the great unwashed for making all those hurtful allegations which went nowhere and cost the revenue $7 million.
Mind you, the above figures relate exclusively to complaints under the new Legal Profession Act, 2004. In a greater proportion of cases commenced under the now-repealed Legal Practice Act, 1996 taken over from the previous regulators, the complaints were made out. Of such files which were closed (all but the 65 remaining), there were 88 instances where the Commissioner thought it reasonably likely that VCAT would make a disciplinary finding (21%), that is, they were made out. In 82 of them it was unsatisfactory conduct which was made out. Just one unsatisfactory conduct charge was brought, for non-cooperation with an investigation. In 6 of the 88, it was misconduct which was made out. In those cases, the Commissioner was compelled by legislation to lay charges, and they are:
- a barrister who has been naughty towards his trustee in bankruptcy;
- a lawyer who tried to charge a client for providing a will which s/he had stored for the client (a trifling offence);
- a lawyer with a trust account deficiency, conflicts between duty and self-interest, and who borrowed money from a client, amongst many other charges;
- a lawyer who prepared and signed a document for use in court knowing it to be misleading;
- a lawyer who acted in the face of a conflict of duties in a transaction involving mortgages and caveats;
- a lawyer who took steps to dishonestly enable the payment of stamp duty to be avoided.
In addition, the following disciplinary charges laid more than 16 months ago await final hearing:
- this monster triple-header involving trust account offences, dishonesty, conflicts of duties, and permitting a non-lawyer to pretend to be a lawyer working in the office of the charged lawyer;
- a case against a lawyer who seems to have stolen stuff from his or her client’s house; and
- a trust account, gross overcharging, and borrowing from a client case.
Back to the new Act matters, though. The Commissioner received 2,053 complaints, or an average of about 40 a week. About 45% were civil complaints (mostly costs disputes, but some pecuniary loss disputes), and 75% were disciplinary complaints. 20% were mixed. 58 punters thought their beak had been abusive or rude, 134 thought their beak had been dishonest or had misled them, and 79 thought their beak had exercised duress, pressure or intimidation. There were 109 allegations of acting in the face of a conflict of duties.
There were some 696 investigations of disciplinary complaints conducted by the Commissioner or by the Law Institute or the Bar on her reference. That means that not even 45% of the disciplinary complaints received were investigated. Furthermore, the Commissioner investigated only 378 herself (55%), sending all but 15 of the rest to the Law Institute. There were 531 such referrals, a mixture of civil complaints and disciplinary complaints.
There were 109 complaints arising out of criminal law, about 250 each (12% each) arising out of commercial law, conveyancing and wills and estates, and more than 1 in 5 arose out of family law.
One in 3 disciplinary investigations was finalised within the first month. Of the rest, more than half are taking more than 4 months to be completed. In 97% of disciplinary complaints finalised, the Commissioner did not consider VCAT would be likely to find the beak guilty of a disciplinary breach. Even if you exclude all the misconceived dud straight disciplinary complaints (65%) and exclude mixed civil and disciplinary complaints, leaving only pure contentious disciplinary complaints, the Commissioner considered VCAT likely to find the beak guilty of a disciplinary breach in fewer than 1 in 10 complaints.
Almost 1 in 5 straight disciplinary complaints were dismissed as having no substance. And almost 1 in 10 complaints were not investigated because the LSC did not have the power to deal with them. The example given of a case which the Commissioner does not have power to deal with is, curiously, “eg involves question of law and better dealt with by a court”.
The Commissioner settled 230 civil complaints (37%). Only 9 mediations were set up by the Commissioner during the reporting period, 7 of which resulted in settlements. She gave the parties a ticket to apply to VCAT pursuant to the Legal Profession Act, 2004 in only about 1 in 5 disputes. This represents a major policy shift from the days when the Law Institute’s Professional Standards automatically gave such a ticket at the end of a dispute resolution process, and is to be commended, but ironically the way VCAT presently views its jurisdiction, punters don’t need one of these tickets any more, they can just institute a consumer-trader dispute under s. 108 of the Fair Trading Act, 1999, and as you will know if you have read this blog, more and more punters are doing so. Twenty-three civil disputes were not progressed on the basis that the Commissioner did not have the power to deal with them. The Commissioner gave as an example of such a want of power ‘should be dealt with by a court’.