FLAC Letter -EXAMPLES WHERE NSW OLSC SHOULD HAVE REFERRED MATTERS TO TRIBUNAL

8/3/2019 FLAC Letter -EXAMPLES WHERE NSW OLSC SHOULD HAVE REFERRED MATTERS TO TRIBUNAL

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l,etter to NSW Law Reform Commission http : //fl ac.htmlplanet.com/reports/Flet29aug00.b

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FLAC believes that any body set up to regulate theaccountable by external scrutiny.

This situation does not exist at present.

legal profession must be independent of the profession and

lnvestigations carried out by the office ofthe Legal Services Commissioner for example are not subject to aninquiry by the Ombudsman or, it would appear, by parliament.

The Law Reform Commission should take into consideration the the former Auditor General, Tony Haris,June 1997 report which found that the present system was deficient and did not meet any ofthe criterianeeded for an effective complaints system.

The report also found that there was a potential conflict of interests in the Law Society ilrvestigatingcornplaints against solicitors in that the Law Society was the sole share holder in the solicitors' indemnitvinsurance fund "Law Cover".

Because of this and other problems the Auditor General conclutled that "the capacity and or commitment oftheLawSocietytowardsdiscipliningitsmembersandimprovingpracticestandardsisindoubt.', (p.p.6415NSW Auditor General Performance Audit Report, The Law Society, The

Bar Council, The Legal ServicesCommissioner, June 1997)

This fact is ofparticular significance in light ofthe fact that FLAC has evidence that the Legal Servicescommissioner is dismissing serious complaints on the grounds that the conduct

involved does not constitute misconduct or unsatisfactory professional conduct and that the complainantshould seek redress through a civil case in negligence.

If proper standards of legal practice have to be maintained by wronged lega[ consumers taking civil casesthrough courts system then clearly the OLSC serves no useful purpose and should, in the pubiic interest, beclosed-

The money saved can then be used to fund such cases.

FLAC believes that there are two very basic criteria that must be met for an effective legal complaints system.

Firstly strong Iegislation and secondly the right, impartial, structure to implement the legislatiol.

FLAC believes that the Office of the Legal Services Commissioner (OLSC) has been a dismal failure and is infact nothing more than a administrative mail box absorbing and burying complaints about legal practitionersand closing files.

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Fffi( *n**lnn* ttr law !For Legally Abused Citizens tnc. (reg No y27021 41 p.O.Box ?7e paninia NS1\,221 3

Mr. Peter Hennessy

Executive Director

NSW Law Reform CommissionGPO Box. 5199

Sydney. NSW 1044

29th August, 2000

Dear Mr. Hennessy,

Thank you for asking FLAC for its comments on the issues that need to be considered in your inquiry intocomplaints against legal practitioners under part 10 ofthe Legal profession Act 19g7.

We would fnstly point out that this is the third inquiry the NSW Law Reform Commission has held into theregulation ofthe legal profession since 1977 and the evidence clearly proves that the profession is not capableof self regulation.

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Letter to NSW Law Reform Commission

There is no reason why it should continue to exist.

There is evideuce proving that the OLSC along with the Law Society and Bar Association thinks that selfregulation means "self protection. "

In this regard the NSW LAW Reform Comrnission, if this inquiry is to be effective, must also hold an inquiryinto the Office of the Legal Services Commissioner.

For example.

Mr. A.H. complained to the OLSC that he had paid $5,000 to a solicitor in the presence of a barrister to payfor medicaVlegal reports which Mr. H. later found out were not paid.

The Legal Services Commissioner claimed in a letter to Mr A. H. that the Barrister did not recall instructionsto apply the money specifically for medical reports.

The Commissioner said, "Without specific direct instructions in writing or orally I do not believe thepractitioner was bound to apply the money only to the reports themselves.,'

However when another complailrant Mr. B.H. complained that his solicitor had not, despite his repeatedspecific "written instructions, introduced into court proceedings critical medical/legal repofis collcernilgdamages he suffered in a personal injury case, the Commissioner informed Mr. B.H. that solicitors andbarristers did not have to follow such instructions.

This had happened despite the fact that the explanatory brochure that the OLSC provides to the public ',Aboutthe Office of the Legal Services Commissioner" clearly states, as an example of the kinds of complaints the

oLSC can investigate is "the lawyer not acting according to the client's instructions."

Mr. P.A. hired a solicitor to review the file of a solicitor who had acted for him in a conventionalconveyancing matter and had, as a consequence ofthe solicitors actions, exposed Mr.P.A. to substantialfinancial loss.

Mr.P A's solicitor presented to the Law Society's Professional Standards Committee, who were investigatingMr.PA's complaint, a number of substantive points conceming conduct and errors of the convel'ancingsolicitor.

The complaint was disnissed.

Mr. P.A's solicitor then asked the Legal Services Commissioner, in light of the fact that 12 issues of complainthad not been addressed and resolved, for a revielv.

The Legal Services Commissiouer informed Mr. A. that "aspects of the practitioners conduct nlight constitute

grounds for a negligence claim in the courts" however such conduct is "not suffrcient to warrant disciplinaryproceedings".

When Mr. P.A. asked the Legal Services Commissioner to reconsider his decision on the grounds ofdocumentation, which challenged the conveyancing solicitors strongest assertions and which had not beenconsidered, he was informed that the matter was closed.

The complaint cost Mr P. A. $ I I ,000 in legal costs.

In a letter to Mr. R.T. concerning a complaint about possible fraud by lawyers acting for the defendants in amatter in which he was involved, the Commissioner said, "The tactical approach of such solicitors is a matterfor instructions from clients and corresponding advice from solicitors ... This communication betweensolicitor and client is protected by legal and professional privilege- I am not in a position to explore thiscommunication."

However In another serious complaint about a barrister who had been previously acting as counsel in, and

advising on, the complainants case and who had consequently, breached client/lawyer privilege by givingevidence in court against his former client's interests about the manner in which he had conducted the case,the Legal Services Commissioner claimed that he did not believe client/ lawyer privilege applied in suchcircumstances.

"Since he (the banister) was not disclcsing information in the course ofpractice (which ofcourse he was) butrather as a wituess, it is nonetheless clear there has been no breach of confidentiality to you in him givingevidence. "

The baristers own previous competence and due diligence was being attacked by the defendants, when hegave the evidence. Not only was client/lziwyer privilege breached by the banister bui there was also rnassiveconfl ict of interests involved.

In another complaint the Legal Services Commissioner dismissed he stated. "Legal practitioners are underlittle obligation to go behind their instructions or to explain the motivations oftheir ciients beyond establishingthe material that will be presented to the court."

However he completely contradicted this statement in a complaint where larwers had failed to carry outwritten instructions. He claimed in a brush offletter he wrote to the complainant, "They (your lar.r,yers) wereretained by you to exercise judgr-nent about strategy and evidence to be relied upon and it is appropriate forthem to be left to do so.

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Letter to NSW Law Reform Commission

FLAC has evidence that the OLSC is ignoring evidence that proves a complaint, and no matter what theweight of evidence or the seriousness of the matter, the OLSC dismisses tlie complaint on the grounds thatthere is allegedly "not enough" evidence to prove the matter.

The OLSC is also applying a very strict 3 year time limit For complaints to be made and is breaking up thesubstance of complaints made in time into "in time" and "out of time" segnents so that a proper invesiigationand consideration ofthe conduct under question cannot be made.

The Commission should hear evidence frorn the public so that the individual experiences of those who madecomplaints to the OLSC, Law Society and Bar

Association can be taken into consideration. In this regard wewould welcome a member of your committee to address a FLAC meeting and to hear some of the problemsmembers have experienced when making complaints under s10 ofthe Legal profession Act.

If an investigation finds that the Legal Services Commissioner is not acting in the spirit of the Act or to theextent ofhis powers under the Act then those effected by his actions should be eligible for any compensationoccurring out ofhis failure to take appropriate action.

FLAC believes that it is imperative that there must be extemal scrutiny of any regulative body set up tohandle complaints about lawyers and that the body itselfmust be independent ofihe professiol.

In this regard a Board of legal quality Assurance with representatives of both the profession and the consumerpublic (predorninately putrlic members) l,ith strong legislation so that both the public and the profession areleft in no doubt as to the standards expected of a legal practitroner would be a good start in thi right direction.

FLAC also believes that gross negligence, repeated acts ofnegligence and incompetence should bedisciplinary matters under an Act to reglilate the legal profession. Single acts ofnegligence should also. in thepublic interest, and in order to maintain standards ofpractice, be subjected to investigation and the necessaryand appropriate action taken.

A professional conduct division ofthe Supreme Court where the Board ofLegal euality Assurance could takecomplaints for hearing that could award appropriate compensation and order ihe nec.riary disciplinary action- from undertaking further study in specific nreas ofpractice to being struck offthe role - would save tilne andbe cost effective.

In this regard we believe that S.155 (3) (a) and (b) and (4) ofthe Legal Profession Act 1987 is clearlydeficient.

A legal practitioner should be reprimanded on the evidence and facts regardless of anv other consideration.Certainly not on whether or not he "agees" to be reprimanded. It is also imperative that a single act ofincompetence and lack ofdue diligence should be investigated and appropriate action taken in order to protectthe public from any further sub standard practices by the practitioner thatmay occur in the future. It is inonsense to do uothing and wait until further complaints are made against the practitioner before taking

appropriate action.

How many members ofthe public is a legal practitioner allowed to harm before appropriate action is taken?

This is an initial response to your invitation lbr information we consider of importance and a full and detailedwritten submission will be made later.

FLAC would like the opportunity to addrsss',rour committee. We look forward to receiving a copy of yourdiscussion paper

Yours sincerely,

Joyce Campbell

Secretary FLAC

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Documents

FLAC Letter -EXAMPLES WHERE NSW OLSC SHOULD HAVE REFERRED MATTERS TO TRIBUNAL