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Ethics: Keeping a clean house

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Cite as: (2005) 79(7) LIJ, p. 88

Public confidence in the legal profession’s “inside ethics” must not be eroded by any changes to the disciplinary system introduces under the Legal Profession Act 2004.

More than a decade ago, Victoria’s then Attorney-General Jan Wade was gearing up to begin a major assault on the legal profession’s complaints handling process.

Announcing her intention to substitute the almost entirely inhouse system with what was to become the Legal Practice Act 1996, she observed:

“I think we are going to have to look very carefully at your disciplinary procedures. My office is continually besieged with people who have complaints about the legal profession and the Law Institute ... It is an issue we are going to have to look at and resolve ... It is no good the legal profession being happy with the disciplinary procedures if they haven’t got the confidence of the community”.[1]

These days, things are much better. Nearly 10 years of the joint Law Institute of Victoria (LIV)/Bar-Legal Ombudsman reign, although torturous for most of the players, has ironically delivered the ethical accountability and public confidence that was intended by the previous government. Complaint numbers are not down on 10 years ago, but neither Mr Hulls nor the LIV suffers from the criticisms of vocal groups such as Law Watch,[2] clamouring for something to be done about lawyers’ ethics.

Let’s not take this current state of relative calm for granted though. We are always only just slightly removed from critical public comment on our ethics, as the profession in South Australia is currently encountering. You may have noted the recent case of prominent Adelaide criminal lawyer Eugene McGee, who is well-known for his defence of one of those charged in the Snowtown “bodies in the barrels” cases. Allegedly suffering delayed stress from the Snowtown trial, Mr McGee knocked down and killed a cyclist and then left the scene of the accident. Coming to his senses some two hours afterwards, he then presented himself to the police. Mr McGee was fined $3100 and had his licence suspended for 12 months, a sentence which has apparently infuriated South Australian Premier Mike Rann.

Mr Rann seems to consider South Australia’s lawyers to be collectively responsible for the (allegedly) inadequate sentence,[3] hinting that Mr McGee has been protected by a conspiracy in the Adelaide legal establishment. A royal commission has been proclaimed to deal with the case – to report by the end of June – an outcome which appears to have public support despite much reasonable counter-criticism and reflection by Adelaide’s professional leaders.[4] The profession is “enemies of the state” according to Mr Rann.[5]

For present purposes, the point is not whether this significant prosecution miscarried or not, but the implications of politicians’ insinuations about our “inhouse” ethics.

Clearly, as was the case in Victoria a decade ago (and is now in South Australia), the electorate could again think of us as self-protective if the heart of our ethical integrity – how we deal with our recalcitrant members – is diminished by the new Legal Profession Act 2004.

Leaving aside the divergent views on the new Act,[6] the system which was due to commence this month [but has been deferred until 1 October] is a calculated ethical gamble by Attorney-General Rob Hulls.

Mr Hulls hopes that the new power split between his Legal Services Commissioner (replacing the Legal Ombudsman) and the LIV/Bar will be moderated by a revitalised Legal Services (formerly Practice) Board in such a way that the current complicated, but robust, investigation arrangements will not be sacrificed to the desire for less conflictual relationships among the major players. This must be got right. We do not want public confidence in the profession’s “inside ethics”, becoming a boil-over in the same way as it did in Queensland[7] and is now, in a different but dangerous context, in South Australia. The description “enemies of the state” is bad enough; we cannot afford to descend to a “war on lawyers”.

Fortunately, Mr Hulls knows there is a lot at stake. He has already amended the Legal Profession Act 2004 to affirm that the Legal Services Commissioner is to control the process of recommendations by the LIV and Bar as to the appropriate disposal of particular complaints. Section 15 of the Legal Profession (Consequential Amendments) Act 2005 provides that the Commissioner may not delegate to the LIV or Bar the task of making a decision about such a recommendation.[8]

ADRIAN EVANS is associate professor in law at Monash University and former coordinator of Springvale Legal Service Inc.

[1] J Wade, “Attorney cool on national profession”, speech to LIV Council, 17 February 1994, (1994) 68 LIJ 418.

[2] Law Watch, a collection of sincere but passionately preoccupied clients who had identified the LIV complaints process as their chief obstacle in obtaining redress from former solicitors, had been active in the Attorney’s ear since 1992. The group had its origins in clients who lost out in the series of significant defalcations that occurred in the late 1980s and early 1990s. They faded away when the policy direction of the Legal Practice Act 1996 became known.

[3] Michelle Wiese Brockmann, “No learned friends of the Premier”, The Weekend Australian, 7-8 May 2005, p21.

[4] Note 3 above.

[5] Note 3 above.

[6] Adrian Evans and Christine Parker, “Too close for comfort”, The Australian Financial Review, 10 December 2004, p47, followed by Rob Hulls “Streamlined path to legal complaints fair and just”, The Australian Financial Review, 21 January 2005.

[7] Reid Mortensen and Linda Haller, “Legal profession reform in Queensland” (2004) 23(2) University of Queensland Law Journal 280-288.

[8] Section 15 inserts s6.3.12(2)(ab) into the Principal Act, restricting the Commissioner’s delegation powers under s4.4.13, which include the power to rely on a recommendation by a prescribed investigatory body (the LIV or Bar) in respect of taking disciplinary action under Div 3 – Investigations.


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