In his piece regarding advocate’s immunity in Lawyers Weekly last week (“Time for advocate’s immunity to end”), Stewart Levitt made comments regarding the professional conduct role of the New South Wales Bar Association which are incorrect.
I have been involved in the complaints process through Bar Council – as a member, and a chair, of professional conduct committees – for many years, and in my experience the complaints process is both rigorous and fair.
First, Mr Levitt states that barristers “enjoy a fair degree of protection from the investigation of their conduct and from disciplinary action” and makes the observation that the complaints process regarding barristers lacks independence and transparency. This is not the case.
Under the Legal Profession Act 2004, complaints about a barrister’s conduct are made to the Legal Services Commissioner. The commissioner generally deals with consumer disputes involving legal practitioners and refers most conduct complaints concerning barristers to the Bar Council for investigation and determination.
Complaints are investigated by one of four professional conduct committees. Contrary to Mr Levitt’s assertion, investigations and reports are conducted and written by legal practitioner members of those committees, not association staff. Furthermore, each committee includes three community members who provide independent scrutiny and assist in ensuring that barristers do not enjoy any protection from the investigation of their conduct – precisely the opposite of what Mr Levitt stated last week.
Their contribution is significant and the views of the community members are diligently brought to the attention of all Bar Councillors prior to any resolution about a complaint.
A committee makes a recommendation to the Bar Council in a detailed report setting out its reason for decision. Again, contrary to Mr Levitt’s assertion, the Bar Council is no “rubber stamp”. Recommendations are carefully considered by council, sometimes being rejected or amended after debate.
All complaints dismissed by the Bar Council are subject to review by the Legal Services Commissioner, the independent arbiter in our co-regulatory system. Bar Council decisions reviewed by the commissioner are rarely, if ever, overturned.
The Bar Council’s rigour in terms of its investigations and reporting has been the subject of favourable comment by the commissioner.
Annual reports of the Bar Council and the office of the commissioner show that in the course of 2013-2014, the Bar Council investigated 106 complaints – 59 complaints that were made during the year and 47 complaints made in previous years but ongoing as at 1 July 2013. Of those investigations, 42 were finalised during the year – 24 complaints were dismissed, three resulted in the barrister being cautioned, four barristers were reprimanded and the Bar Council determined to refer 11 matters to the relevant tribunal for professional conduct breaches. Three complaints were withdrawn. In addition, two complaint investigations were returned as they related to other investigations conducted by the commissioner.
In 2013-2014 the commissioner completed reviews of seven Bar Council decisions to dismiss a complaint (three of those Bar Council decisions were made in the year 2012-2013 and four in 2013-2014). In six of the review matters, the commissioner confirmed the Bar Council’s decision to dismiss the complaint. In the remaining matter the commissioner decided to reinvestigate the complaint pursuant to section 545 of the Act. After completing the reinvestigation, the commissioner dismissed the complaint.
These are hardly the results of a self-interested process.
Mr Levitt also seems to suggest that senior counsel receive favourable treatment under our complaints system. The facts simply do not support that assertion. In fact, senior counsel are over-represented when one considers the statistics for barristers who have been struck off the roll since the early 2000s.
Mr Levitt is also incorrect when he states that the Bar Council “requires complainants to plead a case”. Complainants are not required to prove the conduct. The Act sets out the relevant level of proof – it sets out a reasonable likelihood test. Complainants are required under the Act to describe the conduct alleged. Further, the Bar Council can, and often does, initiate its own complaints against practitioners where a complainant has not articulated a complaint in relation to conduct which emerges during the investigation.
Finally, Mr Levitt speculates that complaints against solicitors are more thoroughly investigated. The Association’s record in administering its complaint system is excellent and the statistics provide no factual basis for this statement.
The association takes its statutory responsibilities to administer a transparent and accountable complaints system extremely seriously.