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Hellfire Club
16 July, 2003  
Discipline and bondage ? Victorian style

Victorian Attorney General on the cusp of announcing the shape of a new disciplinary regime for lawyers, amid confused reports and plenty of “vitriol, venom and toxicity”


Victorian Attorney General Rob “Fuckin’” Hulls is expected to announce this Thursday (July 24) his favoured model for the regulation and discipline of the learned profession.

The shake up has been preceded by plenty of enjoyable argy-bargy between the Legal Ombudsman and the Bar & Grill in particular.

Jack Rush, chairman of the Victorian Grill got hot under the collar about the Ombudsman in a recent edition of his column “Chairman’s Cupboard” in Bar News. He declared the Bar does a first rate job of disciplining its members, handing out ethical advice to vexed advocates over the telephone and running the splendid Ethics Committee. It’s cheap, efficient and brilliant, so why change it?

He made no mention of the slight embarrassment that arose when the government had to introduce retrospective legislation to validate all the disciplinary determinations made by both the Grill and the Law Institute, arising because of the less than rigorous method in which the regulatory powers had been delegated by the professional associations.

Kate Hamond, the Legal Ombudsman, on the other hand, argues the current system is wasteful, the Grill ignores the regulatory benchmarks set by her office, and the whole system is devoid of independence and impartiality.

Rush didn’t spare the hyperbole when getting stuck into the Legal Ombudsman:

”...this attack has been marked by unsupported allegations, blind ideology and a reluctance to engage in reasoned debate.”

Furthermore:

”...the Ombudsman has never expressed any significant criticism of the operation of the Bar’s disciplinary system.”

Hamond (right) didn’t mince about. She fired off a missive to members of the Grill explaining the shortcomings in the chairman’s arguments.

She accused the Bar of being “reluctant” to deal with costs/pecuniary loss disputes, withholding documents from the Ombudsman and that undue regard was paid to the effect that an investigation might have on the professional indemnity premium of a practitioner. She concluded her bristling note with a flourish:

“The public is entitled to expect that a system for handling complaints against the profession be seen to be fair and efficient and devoid of any perception of conflict of interest. It is my firm belief that the current system is burdened by such a perception.”
Fuckin’ himself entered the fray with an article in The Australian Financial Review on June 20. Summoning his best headmaster’s tone, he said:

“The vehemence of the accusations, however, has been breathtaking, and, frankly, continues to disappoint me. The vitriol exchanged between organisational stakeholders that should know better has been toxic to a system in need of clarity and consistency. To an extent, this venom could be seen to have sullied the review process but, more importantly, is most certainly proof of the need for wholesale reform, as well as for assiduousness in the way it is conducted.”

The review process referred to involved reports by the Sallman Wright team which sifted 100 submissions over 18 months and ended up recommending something similar to the clunky NSW model with a Legal Services Commissioner who refers complaints back to the LIV and the Grill.

Then there was an audit of the current regulatory arrangements by a Pricewaterhouse Coopers accountant, Jane Ann Tongs. She came up with the idea that the Legal Practice Board should be expanded to include the handling of complaints and the issuing of tickets, the Legal Ombudsman would be scuppered and the LIV would lose its disciplinary functions, but not the Bar – thus giving fresh dimension to the immunity of advocates.

Tongs swallowed the Grill’s guff about the uniqueness and splendour of its ethics committee and how counterproductive it would be to scrap it. However, the tactical advantage was short lived, because a mole leaked the Tongs’ report and merry hell broke loose.

It would surprise if Fuckin’ went down the Tongs’ path. He may adopt the wishy-washy NSW co-regulatory model where the Legal Services Commissioner, the Law Society and the Bar bat complaints about between themselves.

The Labor bruvvers in Queensland have come up with a bouquet of regulatory bodies: a Legal Services Commissioner with an independent investigatory capacity, a Legal Practice Tribunal (to administer heavy duty spanking), and a Legal Practice Board (for tickles and light spanks). The government will relieve the rancid Queensland Law Society of control and management of the statutory interest money and take charge of the kitty itself.

The Queensland Law Society, which has been more on the nose than usual since the Baker Johnson revelations, will retain its “existing investigative capacity”, but we’re not certain of the extent to which it will retain its regulatory function. The new arrangements for Bananaland are supposed to be in position by January 1 next year.

However, a slab of ground has been cut from under the Queensland and Victorian bar’s efforts to protect their patches. Anna Katzmann SC who has been a member of the council of the NSW Bar, Grill and Rotisserie since 1993 and a previous treasurer and secretary, has a nifty article in the “Winter” edition of Bar News.

She traces the genesis of the problem to the power given to the councils to issue practising certificates and that involves a power to impose conditions. It’s one thing to issue tickets, but quite another to decide whether someone is fit to ply the trade.

“The difficulties presented by the conflicting roles and the different public perceptions are matched, if not exceeded, by the disquiet and discomfort that council members feel about the obnoxious task of deciding the fate of our colleagues. In my opinion, that power should be removed.”

Katzmann says that is better done by the Administrative Decisions Tribunal or the Supreme Court, although oddly she sees no problem with the Bar continuing to issue tickets, both conditionally and unconditionally, and to conduct investigations. She says:

“Both fairness and transparency in decision making are better served if [decisions to cancel practising certificates] were vested in an independent arbiter. The public is entitled to have greater confidence in the process. The council should be divested of the powers to make a final determination of unfitness to practice and to impose sanctions that prevent a barrister from practising.”
Even though this does not go quite as far as Kate Hamond would want, it would be surprising if she has not waved a copy of the Katzmann thesis under the nose of Jack Rush and copied it to Fuckin’.