The Age, August 29, 2003
Dear Attorney,
We understand that your recently announced changes to the regulation of Victorian
lawyers are motivated by a desire to rationalise a costly structure, but we are
concerned you are sacrificing ethics for savings. As a result, the changes will not
be sustainable.
We think you must separate the Legal Services Commissioner from the Legal
Services Board if your changes are to work.In effect, you have put lawyers
back in charge of regulating lawyers. The abolition of the only functionally
independent monitor of lawyers' conduct will inevitably reduce the accountability
of lawyers to the community.
While the many good lawyers will be unaffected and unconcerned, the "bad" lawyers
will progressively encounter lower levels of scrutiny as the impact of the changes
sinks in.
The only complaints recipient under your new structure (the "Legal Services
Commissioner") will be accountable to a board, which includes elected members
of the legal profession. This structure cannot fail to leave the commissioner
open to pressure from those members.
We welcome the "single gateway" for all complaints but the commissioner
will also be most important officer of the proposed Legal Services Board.
As its CEO, that person will be exposed to a constant and debilitating conflict
of interest.
Whether or not the CEO is a lawyer, she/he will be theoretically bound by the
principles of corporate governance to avoid doing the bidding of the board in
relation to the handling of individual complaints.
In practice, the commissioner will over time become more and more compliant
and sensitive to the nuances that the board sees as crucial, since she or he will
be meeting the members of the board regularly on both a business and social
basis.
Inevitably, a sensitive prosecution of a senior lawyer will come before the CEO
for a decision, at the same time as those members who are elected by the
profession will hear of it through the Law Institute and bar grapevines.
As has happened before in a number of jurisdictions, some board members
will pressure the CEO to be "considerate", or "sensitive", or "balanced", etc,
in the handling of the matter. The first time that "balance" is shown will be the
death knell for the commissioner's future efforts to remain independent.
The first CEO/commissioner appointed by the Attorney-General may be the
sort of person to withstand this inevitable socialisation. But that person will
inevitably be replaced, and the replacements will eventually succumb to the
conflict of interest.
The practical effect of routine referrals of investigations and complaints to the
profession by the commissioner will be to undermine the normal conventions
of public accountability and embed conflicts of interest in the investigation process.
Moira Rayner recently wrote of the creeping menace to Australian society of the
conflict of interest phenomenon. This menace is about to be entrenched in an
institutional setting, in the hopeful (and neo-conservative) expectation that
money will be saved and because of the view that somehow the legal profession
is different from every other profession.
The legal profession is perhaps different only because of the social and political
power it wields, but that is a central reason that the scrutiny applied to its
actions must be unimpeachable.
You are about to institutionalise a conflict of interest that will deny the
mandatory ethic of public accountability. There will be no spread of scrutineers
able to exercise functional as well as theoretical independence.
Lawyers have special responsibilities to society but are no different from anyone
else. On balance, lawyers' values are actually very similar to those of the wider
community. Their fallibility is no more or less than anyone else's.
Why should we expect a board of elected lawyers and nominated laypeople to
stop taking an interest in what the CEO of their organisation is deciding daily?
Can any organisation that depends financially on the subscriptions of its members
succeed in eliminating conflict when dealing with complaints about those same members?
The practice of lawyers investigating and prosecuting lawyers commands no
respect in the community because it is always subject to the perception of bias,
and this continues to contribute to a reduction in ordinary citizens' respect for the
rule of law.
Which other profession do we trust to discipline itself?
We hear your view that lawyers are a special case and that if the profession is not
involved in policing itself, the Law Institute and bar will be reduced to relative
insignificance. But this view says little for the profession. If these organisations
cannot survive without your protection, where is their intrinsic validity?
We understand your hope for cost savings, but we think this will prove to be
barren. Legal complaint investigation is increasingly expensive because the
stakes and the benchmarks for standards in complaint investigation are climbing.
If the budget of the Legal Services Commissioner is restricted because it is set by
a board that is likely to be dominated by lawyers, the standards of investigation
will suffer and, in due course, will be seen to be inadequate.
Morale among investigators will decline and stories of inadequacy will leak to the
press. Pressure to provide more resources will either be conceded and the cost
will rise, or rejected and the standard will fall.
It is better to recognise the cost-reduction agenda for what it is, an irretrievable
objective unless standards and the commissioner's reputation are also to fall.
Your proposed structure can be altered to meet our objections. If you separate
the Legal Services Board from the Legal Services Commissioner and contain
investigations to that office, you will remove the central ethical objection to your
whole plan.
Conflicts of interest are white-anting public policy in many sectors. Please reconsider
whether we must also hollow out the inside of the law with this reform.
Yours sincerely,
Catherine Bragg, (Financial and Consumer Rights Council), Judith Dickson
(La Trobe law school), Adrian Evans (Monash law school), Norm Geschke
(former state ombudsman), Matt Harvey (Monash law school), Terry Laidler
(psychologist), Frank Lynch (Nicholas O'Donohue), Mary Anne Noone
(La Trobe law school), Cath Smith (Victorian Council of Social Service).
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