A BITTERLY disappointed Queensland Law Society (QLS) has threatened to withdraw itself entirely from complaints investigations.
Speaking with Lawyers Weekly after last week’s release of the Queensland Government’s much-anticipated Legal Profession Bill, QLS president Glenn Ferguson said the guild was so disillusioned by the fact it had been stripped of all prosecutorial functions that it would now give serious consideration to reverting to a pure members organisation.
The proposed legislation, claimed by Ferguson to be “hastily put together”, allows the soon-to-be established Legal Services Commissioner (LSC) to delegate discipline investigations to the QLS and Bar Association. Much to Ferguson’s chagrin, however, the Bill stipulates that each body report their findings and recommendations back to the LSC and cannot, therefore, carry out prosecutions of complaints where it is believed a plausible case of professional misconduct exists.
“If we are to investigate, then we should also be able to prosecute,” Ferguson said. “We don’t want to have a policing role only. Being a policeman doesn’t sit comfortably with us. If there is no room for us to prosecute, then we might as well become a pure members organisation with no regulatory function.”
Asked whether the QLS would simply refuse to handle complaint referrals from the LSC in protest, Ferguson ruled out any ‘industrial action’ for the moment.
“We’re not like doctors, we won’t be going on strike,” he said.
Stopping short of describing the mooted provisions as “an insult”, Ferguson pointed to the QLS’s low failure rate before the Solicitor’s Complaints Tribunal and experienced prosecutorial team as reason for discontent over the dumping. He said uncertainty created by the Bill would mean the QLS could not offer any guarantees to maintain staffing levels of its professional standards team, which this year welcomed a number of high profile additions.
“At the moment we can’t get staff to join us because we can’t offer them a tenure,” he said.
Flying in the face of strong misgivings over details, Ferguson still supports the concept of “independent and external complaints handling processes”. He was confident Attorney-General Rod Welford would select the right person to fill the inaugural LSC role and said current QLS investigators would make suitable applicants.
The president was also angered by the speed at which the Bill had been finalised, claiming that the QLS was only given 10 days to comment.
“These changes have been on foot for the past five years and [the Bill] was dumped on us about a week before release,” said Ferguson, who had “no doubt” a looming state election was responsible for the government’s expediency. “In real terms, consultation with the QLS was very minor. For such a significant Bill, it was released with haste in the hope that anything that is overlooked can be fixed up later.”
Indeed, Attorney-General Rod Welford will compile more legislation covering regulation of the State’s lawyers to, in some parts at least, accommodate further developments of SCAG’s national profession project (NPP).
The package tabled last week implements some of the reforms of the national model laws. Incorporated Legal Practices (ILPs) are provided for, but the Bill is silent on multidisciplinary practices (MDPs), for which Ferguson harbours some reservations.
“There are some matters which are yet to be finally resolved at the national level, including multidisciplinary practices and trust account arrangements,” a Government spokesperson said. “The second stage Bill to be introduced mid next year will address these outstanding issues and also tidy up any drafting issues arising from the finalisation of the national model bill.”
In related news, Western Australian Attorney-General Jim McGinty has announced there will be no further changes to the state’s package of legislative regulatory reform for lawyers, notwithstanding the incomplete status of many of the NPP initiatives.
The Legal Practitioners Bill was introduced to WA Parliament over a year ago, prior to the release of any national model law drafts, and is understood to be on the cusp of enactment.
It contemplates many of the concepts developed under the NPP, including ILPs, MDPs, national practising certificates and supervision of foreign lawyers, but does not incorporate all of the projects ‘core’ concepts.
For example, the Bill does not adopt harmonised rules covering fidelity and trust funds.
Law Society of WA president Elizabeth Heenan was of the impression that McGinty’s stance would last for some time, considering the fact that the initial Bill had been before parliament for so long. She said the society was “not significantly” concerned by the announcement.
Michael Lavarch, secretary general of the Law Council of Australia (LCA), which has been a driving force behind the NPP’s evolution, was not available for comment.
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