The NSW Legal Services Commissioner (LSC) has defended his prosecution policy after two of Sydney’s most prominent personal injury lawyers were fined $96,000 for professional misconduct.
NSW’s Administrative Decisions Tribunal found that Robert Bryden and Lee Hagipantelis, of Brydens Compensation Lawyers, each committed six breaches of the state’s legal advertising guidelines, including using unlawful advertisements encouraging victims of disgraced surgeon Graeme Reeves - dubbed the ‘Butcher of Bega’ - to contact the firm.
The Tribunal’s decision has fuelled a debate about the criteria employed by the LSC when initiating prosecutions against aggressive advertising, centred on whether a number of law firms are currently in breach of the same advertising regulations that Bryden and Hagipantelis were prosecuted for.
“I do not wish to make any comment with regard to the decision of the Tribunal,” Hagipantelis told Lawyers Weekly. “My issue is with the regulations that prohibit the advertising of services this firm has provided for 40 years. If there are to be such regulations then they must be enforced uniformly and consistently to ensure a level playing field.”
When contacted by Lawyers Weekly and asked why the LSC moved forward with the prosecution of Bryden and Hagipantelis, who were fined $48,000 each by the Tribunal, when other firms appeared to be in breach of the same law, commissioner Steve Mark (pictured) said there is “no inconsistency” in its policy or practice.
“We are not selective,” he said. “We respond to what is brought to our attention. Last year we received 56 referrals from members of the profession that resulted in the initiation of complaints.”
When asked what is currently being done by the LSC in relation to law firms that are still in breach of advertising restrictions, Mark said that “complaint handling and investigation work on matters brought to our attention is ongoing”.
Paying the price
The prosecution was brought against Bryden and Hagipantelis after Brydens ran print, radio and television advertisements using the slogans “Winning is everything” and “If you don't win, we don't get paid”, and advertised that it had been instructed by a number of women who had been treated by former obstetrician and gynaecologist Reeves.
The Tribunal judged that these advertisements breached legal professional and workers compensation regulations.
Mark confirmed that the LSC sent letters to personal injury law firms last year that were in breach of the advertising restrictions, asking them to correct their websites.
When questioned as to why Brydedn and Hagipantelis were not given a similar opportunity, Mark said it was “unnecessary” as Brydens had received “numerous notifications” and had been aware of LSC’s concerns since 2006.
“In the vast majority of cases, for a variety of reasons, the practitioner or firm alters, amends or deletes the offending information,” said Mark. “In such situations we will most likely dismiss the complaint in the public interest as having been resolved.
“In almost every such case, we have received no further advertising complaints. In some cases, particularly where multiple complaints have been received and the practitioner or firm has either continued the breach or produced other offending material, we may prosecute.”
He added that it’s extremely rare for a member of the public to complain about breaches of the advertising regulation; most complaints come almost exclusively from other practitioners or firms.
Anthony Kerin, president of the Australian Lawyers Alliance (ALA), said this case had highlighted the problems facing law firms in NSW in relation to advertising law.
“It is an odd law,” said Kerin. “It does seem to be against the modern theme of competition, which is promoted nationally.
“To change the law, you don’t go about it by breaching it, you engage the authorities who make it, and debate it, and reason with them to change it,” he added.
Kerin said the matter is not something being agitated by the ALA, but may be something that will be looked at by its members for consideration.