WATCHDOG BARES TEETH IN BATTLE TO DISCIPLINE DODGY LAWYERS

Geesche Jacobsen SMH July 8, 2011

Professional misconduct ... courts are reluctant to impose severe restrictions on lawyers. Photo: Nic Walker

STEVE MARK calls them his ''frequent flyers'' - the lawyers who have been subject to dozens of complaints.

The Legal Services Commissioner, who handles complaints against lawyers in NSW, is not legally allowed to identify them, but is pleased that most are no longer practising.

He hopes pending national reforms of the legal profession will increase his ability to discipline bad lawyers. But lawyers are lobbying for changes to the reforms, which some fear might water down the disciplinary regime.

The top ''frequent flyer'' is a lawyer who racked up 101 complaints in less than five years, and the 26 complained about most accounted for 822 of the more than 13,100 complaints in the same time.

Many of them work for firms where other lawyers are also the subject of multiple complaints, and the 25 most complained about law firms have drawn about 1400 complaints since July 2006. The president of the NSW

Law Society, Stuart Westgarth, says the number of complaints is small compared with the size of the profession - 25,000 solicitors and 2100 barristers - but he acknowledges it is important to deal with those who do not behave correctly.

Many complaints are passed to the Law Society and the Bar Association but the Legal Services Commission has the power to review their investigations.

Much to the frustration and anger of clients with legitimate complaints, it often takes years to discipline or strike off a lawyer.

Part of the problem, says Mr Mark, are the definitions of ''professional misconduct'' and ''unsatisfactory professional conduct'' and some recent court decisions which set precedents.

Courts are reluctant to impose severe restrictions on lawyers or to look at cases that examine their behaviour towards more than one client, he says. So he selects only those cases for prosecution that have a chance of success. Since the publication of most disciplinary outcomes in 2004, 72 lawyers - mostly solicitors - have been removed from the roll.

Last financial year the number of complaints against lawyers in NSW was down slightly on the 2661 received in 2009-10 but final figures are not yet available. In most cases clients complain about their lawyer's failure to communicate, but many include an allegation of overcharging, Mr Mark says.  There are lawyers who rip off clients or fight cases that are unwinnable, says Mr Mark, but he believes he knows who they are.

He also criticises billing practices such as one lawyer who billed for 37 hours' work in one day. Many clients are unhappy. One has started a Twitter account in which she comments openly about her disappointment with the NSW legal system and Mr Mark's office. Some have started blogs and run web pages outlining their complaints.

Others have filed, and won, civil suits against their lawyers. He says he is aware of the disappointment of many but says they fail to understand the system under which lawyers operate.

''They go to a lawyer seeking justice. What they get is law.'' Mr Mark says they are often motivated by their lawyer's failure to achieve the outcome they had hoped for.

But he hopes new national laws for the profession should make it easier to hold lawyers to account - a comment that Mr Westgarth disputes.

"I think there is adequate teeth now and I think it's just a question of applying the existing legislation - or its equivalent in the new legislation - to deal with the problem," Mr Westgarth says.

Under the draft reform agreed by state and federal governments in February, people will be able to complain against law firms, principals will be liable for the actions of their firms, and clients will have to give informed consent to costs, which have to be fully disclosed, fair, reasonable and proportionate.

And a new national legal services commissioner will be able to award damages or remove a lawyer's practising certificate if unconscionable conduct is found. But those reforms are yet to be approved by the Council of Australian Governments. Robert Milliner, the head of the Large Law Firm Group and chief executive partner at Mallesons Stephen Jaques, describes the amendments sought as ''technical'' and says legal firms support the reforms. The Attorney-General, Greg Smith, is lobbying his counterparts for NSW to become the first state to adopt the law and host the national commissioner.

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BARRISTER STRUCK OFF AFTER YEARS OF DELAY

THE Sydney lawyer Robert William Cameron, one of a large group of barristers revealed eight years ago as former bankrupts and serial tax defaulters, has been struck off the roll of legal practitioners. But it has taken more than six years to do so.

The executive director of the NSW Bar Association, Philip Selth, blamed the delay on "the complexities involved in investigating and analysing Mr Cameron's financial affairs", which included involving a forensic accountant, delays by Mr Cameron and "substantial delay" in obtaining documents via an application to the Supreme Court in an unrelated case.

Mr Cameron's practising certificate was first cancelled in 2001. Although the certificate was reissued briefly, the 70-year-old barrister, a former legislative draftsman in the Parliamentary Counse's Office following his admission to the bar in 1968, has not worked at the bar since December 2002.

So large were his outstanding taxation fines by September 1989, following his first five tax convictions, that the Taxation Office had him woken at home and arrested on a police warrant. Afterwards he was twice bankrupted, in 1990 and 1995. In 2001, after more tax convictions, he staved off a third bankruptcy by paying an outstanding $186,200 in tax.

Mr Cameron was among a group of barristers revealed in a Herald investigation in February 2001 to have abused bankruptcy laws, been declared bankrupt or to have repeatedly failed to pay tax while still practising law. In July 2001 the Legal Profession Act was amended to require notification by lawyers of any bankruptcy or tax conviction.

Mr Cameron's removal from the roll last month followed a strike-off order sought last year by the Bar Association which alleged he made misleading statements in 2001 during a council investigation into his tax convictions. He had referred only to late filing of his returns for the 1995 and 1999 financial years when in 2001 he knew that between February 1980 and November 1992 he had not made any direct payments of income tax of his own volition.

In November last year, on advice from his senior counsel, David Rofe, QC, Mr Cameron admitted to the Administrative Decisions Tribunal he had been guilty of professional misconduct. To his "eternal regret", especially as a former drafter of legislation, Mr Cameron told the tribunal he had totally misread the July 2001 amendment to the Legal Profession Act.

He was "not thinking clearly at the time [2001] and have to concede that I was emotionally troubled about the whole situation, particularly the way in which the media was treating me, my family and the NSW Bar".

Unable to accept parts of his evidence and finding he had deliberately misled the Bar Association, the tribunal ordered that Mr Cameron be struck off until 2011.

Source: JENNIFER COOKE LEGAL AFFAIRS REPORTER

BARRISTER STRUCK OFF

A FORMER state Liberal Party vice-president, Alexander Stanislaw Howen, has been struck off as a barrister for professional misconduct.

The decision to revoke Mr Howen's practising certificate - effective from September 19 - was made on Friday by the NSW Administrative Decisions Tribunal, headed by the District Court judge Angela Karpin, after complaints from the NSW Bar Association, the Law Society and a former client.

Mr Howen, a bankrupt, earlier this year successfully defended one of five Liberal Party supporters caught distributing racially inflammatory leaflets purporting to be from a radical Islamic group in the western Sydney seat of Lindsay during last year's federal election.

In ordering Mr Howen be struck off, the tribunal found he had misled the Australian Industrial Relations Commission in 1999 and failed to protect the interests of his then client Michael Iverson, who had been sacked from Qantas.

Mr Iverson had contested his dismissal but Mr Howen failed to lodge his claim with the commission within the required 21-day statutory period.
When he relodged the unfair dismissal claim with the commission, he did so falsely blaming the delay on his client's struggle with depression over the months.

The commission subsequently refused to let Mr Howen file the appeal under a "fair go clause".

The tribunal heard Mr Howen was the cause of the delay, despite being urged by his client for more than four months to file the application.
In considering an application from the Bar Society that he be struck off, the tribunal said last May that Mr Howen's "conduct amounted to a breach of the barrister's duty of honesty and candour to the court … and an intentional preferring of his own interests over those of his client".

Such conduct "would be regarded by the barrister's colleagues of good repute and competency as both disgraceful and dishonourable", the tribunal said.

Last week, it found the respondent had "knowingly made misleading statements to the AIRC" and "failed to protect his client's interests".
It also found him guilty of two counts of professional misconduct by failing to comply with investigations by the Bar Association or seek professional counselling.

Mr Howen was ordered to pay fines totalling $4000 and the Bar Association's costs.

The action follows a series of complaints and disciplinary action against Mr Howen, who in November 2003 sparked an ugly row within the NSW Liberal Party by renominating for its vice-presidency, a position from which he had been ousted in April of that year.

In-fighting erupted among rival candidates who felt he should not hold the post, after the tribunal reprimanded him in May 2003 for failing to comply with a notice by the Legal Services Commissioner to respond to a client's complaints.

In reaching its decision to strike Mr Howen off the legal practitioners roll, the tribunal said it also took into account other past disciplinary actions taken against him. These included delaying notification in 2002 that he was bankrupt.

Mr Howen unsuccessfully sought to be allowed to finish a number of part-heard trials that he is engaged in.

Source: Les Kennedy, Sydney Morning Herald
Photo: Ben Rushton

GENDER DIFFERENCES WRIT LARGE...

WOMEN are better lawyers than men, if complaints are inversely proportional to competence. The rate of complaints made against female solicitors is half that for their male counterparts, according to research to be presented at a legal ethics conference this week.

The Queensland Legal Services Commission is the only body of its kind to publish data according to gender, and its statistics show far fewer complaints are made against women.

While they represent nearly 40 per cent of the profession in Queensland, they represent only a quarter of complaints received by the commission, and men are four times as likely to be prosecuted over their conduct than women.

In NSW there are seven times as many ostensibly male names on the Legal Practitioners' Disciplinary Register than female. Francesca Bartlett, a lecturer at the University of Queensland, says this reflects the position in the United States, Canada and Britain, where women receive consistently fewer complaints than men.

In her paper, Dr Bartlett offers possible explanations: women still form a minority of senior lawyers against whom complaints are more likely to be made; women work in areas people do not complain about as much; women may just work harder, make fewer mistakes or resolve complaints before they reach the commission.

While more women are graduating from law schools than men, they are not sticking around. In all states, Dr Bartlett says, fewer women are practising as lawyers, and more are leaving earlier in their careers. Far more women lawyers are young. In Queensland, while 62 per cent of solicitors aged under 30 are women, 90 per cent of solicitors aged over 50 are men.

"The most senior practitioners are most likely to receive complaints," she said. "It follows that female solicitors receive proportionately fewer complaints on the basis of their more junior status."

One explanation is that clients, other lawyers or courts are more likely to complain about the lawyer they deal with, who is more likely to be the senior lawyer, and that is more likely to be a man.

However, Dr Bartlett found no evidence that women were seen as behaving in a more caring or ethical manner.

Source: Tim Dick, Sydney Morning Herald

ABOUT THE LAW SOCIETY OF NSW

The Society has two primary areas of responsibility, namely that occupied by its statutory obligations and that which comprises its representative functions under its Memorandum of Association.

The Memorandum of Association provides an accurate summary of the Society’s role. Included in the Memorandum’s objectives are the following:

• To consider, originate and promote reform and improvements in the law;
• To remedy defects in the administration of justice;
• To effect improvements in administration or practice;
• To represent generally the views of the profession;
• To preserve its integrity and status;
• To suppress dishonourable conduct or practices;
• To consider and deal with all matters affecting professional interests of members of the Society.
• Successive New South Wales parliaments have conferred increasingly complex powers and functions on the Law Society for the good order and regulation of solicitors in the State, making the Society in large measure a licensing authority.

The Society’s role in registration and regulation of the profession has not changed with the shift to voluntary membership, and solicitors’ obligations in these areas remain compulsory, regardless of whether they remain members of the Society or not.

Source: The Law Society of New South Wales