New policies to protect the administration of justice

Statement of Regulatory Approach – Professional Standards

The Department has developed and adopted a policy on how it will support the Council of the Law Society of New South Wales (Council) to exercise its regulatory functions.   The Statement of Regulatory Approach (Statement) has recently been published on the Law Society’s website.

The Statement sets out how the Department will prioritise the objectives set out in the Legal Profession Uniform Law(NSW)(Uniform Law). You can view the Statement here.

While the Department will give effect to all of those objectives, the Statement makes it clear that priority will be given to the protection of clients of law practices and the public, while ensuring the administration of justice is effective and not comprised.

It is one of a suite of measures to improve transparency around the way the Department undertakes its functions, while at the same time modernising its approach to regulation.

The President of the Law Society, Cassandra Banks has welcomed the new Statement.

“The Law Society has a long history in regulating solicitors in New South Wales.  The hallmark of a profession is that it takes responsibility for setting and enforcing standards itself – I welcome the significant steps the Society is taking to continually improve its regulatory approach, with the aim of improving the practices and standards of its members”.

Importantly, the Statement highlights that the Council will look to use a wide range of the regulatory tools in the Uniform Law to ensure that service and quality to consumers is continually improved.  Using a risk based approach, the focus of serious disciplinary action will be where there is a serious risk of harm or actual serious harm (either to clients, the public or the administration of justice).

Alternative approaches under the Uniform Law will be utilised where there is lower risk of harm, and the solicitor has demonstrated insight into the issues, and is willing to learn from potential mistakes.

The President highlighted:  “The Statement will ensure serious transgressions are dealt with, ensuring that those matters that do not raise conduct issues are not left hanging around”.

The Statement has a particular focus on achieving compliance with the Uniform Law in the future, and also improving the use of education as a tool to improve regulatory outcomes.

One of the new tools being used is the referral of solicitors to one on one education sessions with the Professional Support Unit.   This has allowed solicitors to work with experts in their field to develop and foster a better understanding of the ethical issues involved in particular situations they have faced.  The feedback from these sessions has been extremely positive.

The Statement has been introduced along with procedural changes that have streamlined decision making, and have enabled the Department to focus its resources on more serious matters, while ensuring that those matters that do not require a disciplinary response are closed more quickly.

Complaints by solicitors about other solicitors

Around 15% of complaints made each year are made by one solicitor about another solicitor.

Very often, solicitors are best placed to identify whether the conduct of other solicitors breaches professional standards.  These complaints are a potential source of information for the Department in identifying where it may need to take regulatory action.

However, many of these solicitor v solicitor complaints are unmeritorious, or raise matters that are better dealt with between the solicitors themselves.  In some cases, the complaints are made for tactical purposes.

The central role of courtesy between lawyers in the administration of justice, was highlighted by White J in Rinehart v Rinehart (2015) 108 ACSR 415 (at [27]):

“Discourteous conduct is likely to increase tensions, inflame disputes and bring the administration of justice, in its wider sense, into disrepute… As has been said, civility within the legal system not only holds the profession together, but also contributes to the continuation of a just society…Conduct that may be characterised as uncivil, abrasive, hostile or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully and efficiently, in turn delaying or even denying justice”.

The Department has released a new policy that explains how it will deal with complaints made by one solicitor about another.  You can access the policy here.

The new policy aims to:

1. Clearly identify the types of complaints from solicitors the Council is likely to consider as warranting further action.
2. Remind solicitors of their ethical obligation under rule 32 of the Legal Profession Australian Solicitors Conduct Rules 2015 not to make unfounded allegations;
3. Set out the options available for solicitors to resolve matters between themselves, including services provided by the Law Society.

President Banks has said:  “I have shared the concerns of my fellow councillors and the Professional Conduct Committee around what appears to be an increase in discourteous behaviour among solicitors.”

“As professionals we should be able to sort out most differences between ourselves without resorting to inappropriate behaviour”.

The Policy highlights that solicitors should focus on maintaining positive relationships with all their colleagues, and lodging a complaint should not be the first option in attempting to resolve an issue or dispute.

The first port of call should always be self-resolution.   Solicitors may also wish to draw on the support available from the Law Society including the Professional Support Unit (which includes the Ethics Unit) who provide guidance to solicitors on ethical and regulatory issues.

The Ethics Committee also has the capacity to provide guidance to solicitors who may have a difference of opinion on ethical issues.