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Regulation one-stop shop

News

Cite as: (2003) 77(9) LIJ, p.20

After three years of investigation and consultation, the state government has revealed its new model for the regulation of the legal profession.

The Legal Practice Board and Legal Ombudsman will be abolished and a Legal Services Commissioner established under the state government’s reforms for regulation of the legal profession.

Under the new structure, unveiled by state Attorney-General Rob Hulls on 25 July after a three-year review, the commissioner will become the single point of entry for complaints against lawyers.

The commissioner will have the power to investigate and prosecute lawyers for misconduct and mediate disputes between lawyers and clients, and will also be able to delegate some of these investigations to the Law Institute and Victorian Bar.

The proposed reforms to the Legal Practice Act 1996 received a cautious welcome from the Institute, but have been labelled by Legal Ombudsman Kate Hamond a “postbox” for the professional associations.

The new structure will include:

  • a Legal Services Board, which will be the peak body in the regulatory system, with responsibility for funding, policy setting and all non-disciplinary regulatory functions;
  • a Legal Services Commissioner, who will be CEO to the Board and oversee investigation of complaints;
  • the Victorian Civil and Administrative Tribunal, which will hear all prosecutions of lawyers and civil disputes between lawyers and their clients in a separate Legal Practice List;
  • the commissioner can delegate complaints to the Institute and Victorian Bar. The commissioner will have the power to review the outcomes of those investigations; and
  • the abolition of the Legal Practice Board and the Legal Ombudsman.

Mr Hulls said the new system would streamline the handling of complaints and, in turn, cut the cost of regulation by $3.5 million a year.

“Previous attempts to reform the regulation of the then legal profession created a mess,” Mr Hulls said, in reference to the 1996 review carried out by then-Coalition government that created the current Legal Practice Act.

“There was a number of different entry points for complaints and the system became inefficient, cumbersome and confusing for customers.

“As a result of this flawed system, there has been a massive blow-out in costs from $6.27 million in 1995/96 to $11.9 million in 2000/01.”

Institute president Bill O’Shea welcomed the single point of access for complaints, but said the proposed model did not contain safeguards that prevented government interference in the independence of the legal profession.

For example, the first commissioner will be appointed by the Attorney-General and the Legal Services Board will include legal professionals and community and consumer representatives chosen by the state government.

“It is very important that the legal profession be separate from government and the proposed model will not stop this or future governments from blurring the boundaries that protect the independence of the legal profession,” Mr O’Shea said.

However, he praised Mr Hulls for introducing a system that was “not that dissimilar” to the regulation systems in place in New South Wales and Queensland, and was consistent with national profession legislation being pushed by federal Attorney-General Daryl Williams.

Mr O’Shea said the Institute looked forward to taking part in a joint working party to examine the details of the reform package.

The Bill containing the reforms is expected to be tabled in Parliament in the Autumn 2004 session and come into effect in early 2005.

Ms Hamond said she supported a “one-stop-shop” approach for complaints but disagreed with reforms that made the commissioner answerable to a board and left a role for the professional associations.

“Instead of being the independent watchdog as the Legal Ombudsman now is, we will have a board which is, of course, capturable. And I believe that the current (Legal Practice Board) has been captured by the lawyers’ associations and we’ve had problems because of that,” she said.

On the role of professional associations under the proposed structure, Ms Hamond said she had great concern that the Victorian commissioner would follow the lead of the New South Wales Legal Services Commissioner and act as the postbox for the associations.

Ms Hamond also claimed in The Age on 26 July that sexism was involved in the final decision.

“This office will not go quietly. And make no mistake, in a lot of ways this has been boys against girls,” she said.

“This office is not popular and we happen to be completely managed by women.”

These comments are indicative of the pressure that has been brought to bear on all parties since Mr Hulls announced on 9 June 2000 a review of the Legal Practice Act – the second begun in seven years.

The review began with a report by Crown Counsel Professor Peter Sallmann and Civil Justice Review Project associate director Richard Wright, released in October 2000, which raised concerns about the complexity, effectiveness and cost of the existing structure.

Professor Sallmann and Mr Wright released their Regulation of the Victorian Legal Profession report in November 2001 which called for a single entry point for complaints, the creation of an Office of the Legal Services Commissioner and a civil list at VCAT to deal with hearings. It also called on a role for the Institute and Victorian Bar in conducting investigations.

Jason Silverii

Old structure of regulation

New structure of regulation

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