Linda Haller

Professional discipline for incompetent lawyers? Developments in the UK and Australia

Since the 1980s legislatures in the United Kingdom and Australia have looked for ways to increase the level of protection given to consumers of legal services. This paper places these developments in the context of regulatory theory, compares and contrasts legislative developments in the United Kingdom and Australia to track the various approaches taken, and uses some preliminary statistical data from Australia to test the degree to which the reforms flowed through into the types of charges prosecuted and the sorts of orders made by disciplinary tribunals. The paper concludes that, despite the strong interventionist approach of Australian parliaments, the impact of the reforms may have been limited by the confused nature of the debate surrounding the reforms, and their impact is most likely to be seen in private, mediated settlements of complaints than in the types of matters brought before a disciplinary tribunal.

Dirty linen: The public shaming of lawyers

Is it fair criticism to say that ‘‘Lawyers . . . wash other people’s dirty linen in public [but] are reluctant to apply the same principle to themselves’’ (Gray, 1992, p. 469)? Should lawyers be publicly shamed? The answers to those questions seem to vary from jurisdiction to jurisdiction and, where the profession is divided, may depend upon whether the question is asked of solicitors or barristers. This article seeks to demonstrate the divergent approaches to public discipline in a number of jurisdictions. Some disciplinary systems operate in relative secrecy whilst others hold public hearings and provide extensive information to the public through the Internet. Moreover, public shaming may be more prevalent within sections of the legal profession which have had to work harder to obtain public legitimacy. This article considers the degree to which disciplinary outcomes are reported in Queensland, Australia, and compares this with the position in other Australian States, New Zealand and England. It also looks at how each of these jurisdictions has dealt with the more vexed question of allowing the public, including the mass media, to attend the disciplinary hearing itself.

Disciplinary finds: Deterrance or retribution?

This article looks at the use of fines in the professional discipline of lawyers. After noting that the primary aim of discipline is to protect the public and acknowledging that this protection can be achieved through deterrence, the article discusses perceptual and practical difficulties in the use specifically of disciplinary fines. The article questions whether the use of fines is more consistent with a retributive or legitimating focus within disciplinary tribunals. Using the disciplinary regime in Queensland, Australia by way of example, the article notes that, whilst legislation permits large fines, the appellate court appears less enthusiastic, preferring usually to strike off or suspend those practitioners who come before it. The article then examines the actual practice of the disciplinary tribunal with jurisdiction over solicitors in Queensland, where fines have been the most common order imposed by the Queensland tribunal in its 70 year history. The article questions whether these fines have had any specific or general deterrent effect. Particular attention is given to the subsequent history of cases in which the largest fines were imposed. This examination suggests that these fines are more consistent with a retributive than a deterrence model.

Tobacco, Recusals, and Sexual Assault Reforms: 'Correspondent's Report from' Australia

The Victorian Government has just released a review of its Sexual Assault Reform Strategy. The strategy was an ambitious project begun in 2007 to improve the justice systems response to sexual assault. Legislative reforms then included a ban on any cross-examination by the accused and the need to obtain leave before cross-examining the complainant on sexual history...

Reform, Advice and Immunity: 'Correspondent's Report from' Australia and New Zealand

The key aspects and features of the latest draft national legal profession laws for public comment released by the Australia federal government are discussed. Several key issues such as the advocates immunity and the advice and assistance provided by lawyers are highlighted.

Questions of Loyalty

Academics like myself who have focused their research on lawyers who have faced formal disciplinary hearings sometimes feel the need to justify such a narrow lens, given that formal hearings only represent the tip of the iceberg in relation to lawyer misconduct. A threshold question therefore arises when reading Richard Abel’s new book Lawyers in the Dock: what can be the value of reading about only seven lawyers who have faced discipline? The answer is very clear for those of us who teach Legal Ethics. It is a form of story-telling which humanises the lawyers involved and those around them, whether clients, colleagues, employees, lawyers on the other side, judges, friends or family, and so evokes a visceral response from the reader that a clinical study of codes, statistics and case reports cannot. Some will see the possibility of themselves in the same position, subject to the same pressures as Abel’s lawyers. Hopefully many will experience strong emotions—perhaps both sympathy and disgust; the emotional wrench when we read of one lawyer’s son watching the disciplinary proceedings from the public gallery, the frustration we feel when no judge seems able to control the misuse of their courtroom, the embarrassment we feel when reading what the lawyer Wisehart says to the judge battling breast cancer. Of course, not every reader or law student will be moved by the same elements of the story or in the same way but this is exactly why this form of story-telling can make for engaged and animated classroom discussions about the conduct of lawyers. The book also has much to offer beyond the classroom. By portraying ways in which law is sometimes practised in New York, it allows us to see the similarities with our own jurisdiction, but also the sometimes subtle differences in how lawyers, clients, law firms, regulators and judges go about their work and see their role. These subtle, sometimes cultural, differences can be portrayed in this sort of narrative but not through abstract and generalised descriptions of codes and regulatory practice. The overriding theme of the book is the nature of trust, and its betrayal. As Abel explains in his introductory chapter, he distinguishes betrayal by lawyers from mistakes and criminal conduct, which he is not concerned to explore in this book. While the first group of case studies that he looks at relate to neglect, this is neglect of such a pervasive kind that Abel considers it a form of betrayal. The third case study dealing with the question of neglect relates Legal Ethics, Volume 11, No. 1

Smoke and Mirrors: When Professional Discipline may cause harm

“[The most fundamental purpose of professional discipline]1 is to maintain the reputation of the solicitors’ profession as one in which every member, of whatever standing, may be trusted to the ends of the earth. . . . Otherwise, the whole profession, and the public as a whole, is injured. A profession’s most valuable asset is its collective reputation and the confidence which that inspires. . . . The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.”2