Jackson, Cameron --- "Avoiding disciplinary complaints: Understanding and nurturing key relationships" [2020] PrecedentAULA 58; (2020) 160 Precedent 26

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AVOIDING DISCIPLINARY COMPLAINTS

UNDERSTANDING AND NURTURING KEY RELATIONSHIPS

By Cameron Jackson

We will all occasionally disappoint our clients, judges and our opponents, and any one of us may be the subject of a complaint. However, there are steps we can take to reduce the risk of complaints and things we can do, both before and after a complaint, which may lead to a better outcome.

This article will give an overview of the common areas of complaint and will provide a few thoughts on both how to avoid complaints and how to equip yourself to respond appropriately if they do occur.

THE SPIRIT OF THE DISCIPLINARY RULES IS AS IMPORTANT AS THE CONTENT

You must, of course, be familiar with the rules of conduct in your jurisdiction. These are now uniform across most of the country for both solicitors and barristers (Tasmania being the exception) and they can be found on your governing body’s website, or your state or territory government’s legislation website.^[1]

You may be surprised by how they have changed since you first started practice.

These sets of rules are simply an imperfect attempt to spell out the consequences of the more basic, broader responsibilities that come with the privilege of practising law.

These broad responsibilities find expression in the Australian Solicitors’ Conduct Rules 3–6.^[2] It is worth extracting rules 3–5 in full because they reflect the key relationships and the obligations which flow from them in a concise way:

‘3 Paramount duty to the court and the administration of justice

3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

4 Other fundamental ethical duties

4.1 A solicitor must also:

4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client,

4.1.2 be honest and courteous in all dealings in the course of legal practice,

4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible,

4.1.4 avoid any compromise to their integrity and professional independence, and

4.1.5 comply with these Rules and the law.

5 Dishonest and disreputable conduct

5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:

5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice, or

5.1.2 bring the profession into disrepute.’

What these principles tell us about the nature of our professional relationships and obligations

The fundamental ethical principles outlined in these three rules are relational. Each one reflects characteristics of particular kinds of relationships which we as lawyers have to another group of people or an institution.

The first relationship is between us and the courts and the administration of justice (including regulatory bodies). The second is between us and our client. The third is between us and our colleagues. The fourth is between us and the broader public, including the clients of others.

These relationships are at the heart of legal practice. Understanding and respecting them is the key to a healthy practice and a practice in which complaints, if they occur, can be managed.

The bulk of complaints will come from the first three of these relationships. These are the relationships that I will discuss in this article.

Like all relationships, these relationships require us to be able to acknowledge the other party’s point of view and understand what that party asks of us. If we cultivate a habit of looking at things from the other party’s perspective, we will minimise the risk of complaints and find our work more satisfying.

In each of these relationships, clear, honest and tactful communication is central. If there are conflicting duties between our duty to the court and our duty to our client, for instance, or if there is news that we do not think our client will want to hear, it is best not to ignore it, but to talk it through with the client. I have found that the worst that can happen from such an exchange is the loss of a brief, but even that is rare. And losing a brief is far better than receiving a complaint from the court, the client or an opponent.

THE PARAMOUNT DUTY TO THE COURT AND THE ADMINISTRATION OF JUSTICE

The court

We are all officers of the court. This is not a mere formality. It is central. The court needs to know that it can rely upon practitioners to advance the interests of their clients in an honest and straightforward manner which does not conflict with the interests of justice.

One situation where I regularly see a cavalier approach towards this paramount duty is in the provision of affidavits from solicitors in support of applications for extensions of time to appeal, in which they seek to explain the delay. The explanations often do not accord with the facts as they have been reported to me and contain statements which are misleading, obscuring, and sometimes just plain wrong.

Often this is because the solicitor is concerned with minimising any default for which they could be held responsible. However, this is counter-productive because delay attributable to the solicitor is more likely to be acceptable to the court than delay that is the fault of the client. More fundamentally, acting in such a way is a serious breach of a lawyer’s duty to be honest and open with the court.

Equally, now that more evidence in chief is given by affidavit or statement, care must be taken to ensure that the evidence reflects the facts as understood by the witness for whom the statement is prepared. Too often when witnesses are cross-examined it is clear that their statement does not reflect their true position. The witness is then left lamely claiming that they did not prepare the statement and did not read it before signing it.

Particular care must be taken when appearing on interlocutory applications where your opponent is not present. You have an obligation to present all facts that are relevant to the disposition of the application, including those which count against your application. In Legal Services Commissioner v Yakenian, the NSW Civil and Administrative Tribunal found the practitioner guilty of professional misconduct when he failed to set out all the material facts in an affidavit filed with a motion seeking default judgment which was held to be misleading to the court.^[3]

Duty to your professional body

Engaging in full, frank and courteous communication with your professional body is essential. For example, you must disclose facts relevant to whether you are a fit and proper person to practise law and that obligation, at least with respect to a number of events, is a continuous obligation.

The Legal Profession Uniform Law requires you to inform your professional body within seven days of being charged with any indictable offence (whether or not it is or may be dealt with summarily), or any foreign offence which would be indictable, and almost any offence upon conviction, including drink-driving offences.^[4]

Failure to deal fully and frankly with your professional body may lead to a finding of professional misconduct.

CLIENTS: THE SOURCE OF GREATEST SATISFACTION AND PROFESSIONAL RISK

At the core of our professional lives is our relationship with our clients. These relationships are the source of much of our satisfaction but are also the most likely source of conflict and, in turn, complaints.

Communication is key

The key to avoiding complaints from clients is happy and satisfied clients. The key to happy and satisfied clients is understanding the nature of the relationship, keeping the client informed, and setting reasonable expectations from the start.

Clients are often aggrieved, angry and upset when they seek our help. They often feel disempowered and that authority figures such as employers, large corporations, or the government have taken advantage of them. While our knowledge and perceived power is the reason they seek our help, it also may cause them to feel vulnerable when they are dealing with us.

Clients want to know that we are in their corner, but at the same time they need to be given realistic expectations with respect to how strong their case is, how long a resolution will take, what a realistic resolution will involve and will look like, what the risks are, and how much it is likely to cost.

If you fail with respect to the first requirement, then you may lose a client. If you fail to set realistic expectations, you run the real risk of a complaint.

All legal practitioners have their own techniques for communicating with a client that they are in their corner. Let me say to solicitors, as counsel, that a technique which involves amplifying the client’s grievance and inflating expectations makes the client very difficult to work with and greatly increases the risk that the client will not be satisfied with the result, thus increasing the risk of a complaint.

How do you reconcile the need to reassure the client that you are on their side with the need to give them a realistic idea of what is likely to happen?

The key is active listening and allowing more time in conference. Active listening is a basic counselling technique where you identify what the client is telling you about their feelings and reflect this back to them.^[5] It has the advantage of letting the client know that you have heard and understood their feelings without you having to agree with those feelings or the set of perceptions which underpin them.

If the client feels ‘heard’ they are more likely to listen and be receptive to what you have to say.

When communicating with a client, my advice, particularly to those who are in their early years of practice, is to make sure you express yourself in plain English. There is a temptation to use jargon either unconsciously or deliberately to appear knowledgeable and professional. Avoid it. Your expertise will be assumed and accepted. Your ability to communicate will be gratefully received.

Straightforward communication throughout the process will improve the client’s satisfaction with your representation and acceptance of the outcome.

Costs

The Office of the Legal Services Commissioner (OLSC) in NSW has observed that complaints about costs make up about a quarter of all complaints.^[6]

With regard to costs, the correct starting point for any lawyer is written disclosure which complies with the Act and regulations in your jurisdiction, an accurate estimate, and updates if the estimate changes – this is essential. However, it is also important to go through your costs disclosure and costs agreement with the client. This will reduce the risk of dissatisfaction and complaint.

According to the OLSC, many costs complaints occur because the fees claimed are out of all proportion to the amount awarded.^[7] Consider reducing your fees in cases where the amount awarded or negotiated is not substantial, particularly if it is less than anticipated. The OLSC has expressed the view that ‘except in exceptional circumstances the final bill should be in proportion to the outcome’.^[8] From a client’s point of view this is a reasonable expectation. While what is proportionate is open to interpretation, most experienced practitioners in the personal injury sphere intuitively understand this, and reflect it in their bills.

If you cultivate an open and collaborative relationship with clients, they will let you know if they are not happy. Try to work with the client to deal with their dissatisfaction. Try not to react defensively. If a client is very unhappy with a bill, for instance, think hard about whether you want the time and expense of defending it should a complaint be made.

Trust accounts

Of the solicitors I have advised over the years facing disciplinary action, trust account misdemeanours have been the most common problem. The rules are detailed and strict,^[9] in recognition of the fact that the money in these accounts is the property of each client who has entrusted it to you.

You must follow these rules diligently. You must not fall behind with your accounting. You must not withdraw a client’s funds without following the necessary processes.

I have seen an increasing tendency for solicitors to operate their practice without a trust account, no doubt because of the significant obligations and scrutiny which comes with them. I do not recommend this: it complicates relationships with other professionals; leads to a temptation to handle clients’ money (which you hold on trust regardless of whether you have a trust account) in a way that is inconsistent with your obligations; it can hamper your ability to provide a full service; and it may place your own funds in jeopardy.

Conflicts of interest

A significant number of complaints spring from conflicts of interest which lawyers do not recognise or manage inappropriately. A common example is a lawyer preparing a will for a client which includes a substantial benefit to the lawyer.

A simple piece of advice with respect to conflicts of interest is to imagine there is someone looking over your shoulder! If that were the case, would you be comfortable with what you are doing? We understand what it means to be in a fiduciary relationship with our clients, and we understand what it means to act solely in their interests and not our own, but sometimes we may need a reminder.

DEALING WITH COLLEAGUES

With respect to our colleagues, complaints are usually the result of dishonesty or rudeness. Our role in the administration of justice requires that we be neither. Extreme rudeness may lead to a complaint. Significant dishonesty will lead to a finding of professional misconduct, and quite likely the loss of your practising certificate.

Harassment and bullying

Lawyers should be aware of rules with respect to harassment and bullying. All jurisdictions have rules similar to rule 123 in the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW), which states that a barrister must not engage in conduct which amounts to discrimination, sexual harassment or workplace bullying.

In this area, as with other areas I have discussed, the key is to consider relationships from the perspective of the other party, and how your behaviour would seem to them. Behaviour may come across as bullying, harassing or discriminatory, even if not intended. A degree of self-awareness is required, as well as a recognition that relationships with colleagues are often not equal. Cultivate a practice of observing the effect of your behaviour on others, and of self-reflection.

COMPLAINTS

Protecting yourself before a complaint is made

Careful tending of each of these relationships may be enough to prevent a complaint. However, you cannot assume and there are steps that you can take to protect yourself.

First, be alert for early signs of trouble. You can develop an instinct for a potentially problematic client. If you are a solicitor, consider carefully whether you are the right solicitor for them and if you retain the client, take extra care.

If you are a barrister, you also need to consider whether a brief is right for you within the constraints of the cab-rank rule. If you have a bad feeling about a matter, discuss this with the solicitor – they may not want a barrister who has serious misgivings about the client. Still less are they likely to want a barrister with serious misgivings about their instructing solicitor!

Second, make sure that you practise the equivalent of what doctors call ‘defensive medicine’. Make notes with an eye to what will be important if you need to defend yourself later. Good notes and written correspondence are excellent aids when responding to disciplinary proceedings and will generally be accepted as an accurate reflection of what occurred.

Responding to a complaint

Once a complaint has been made, the way that you respond could be critical. It must be straightforward, factually accurate and professional in tone. Any hint of dishonesty or fabrication will significantly worsen the outcome.

However, be aware that it will be almost impossible for you to approach this task objectively. Your career and reputation, and sense of yourself as a professional, are being placed in jeopardy. Coping with this sense of loss involves feelings very similar to those described by Kübler-Ross in her seminal work On Death and Dying.^[10] In that work, Kübler-Ross describes the stages of grief that terminally ill patients experience.

In my experience, having worked with both lawyers and doctors responding to disciplinary complaints, the stages of grief that Kübler-Ross describes mirror the emotional journey professionals take when confronted with significant complaints.

The first three of those stages are denial and avoidance, followed by anger, followed by depression. You are likely to experience all of these emotions, particularly if the complaint is serious. You must recognise and acknowledge these stages and not allow them to govern your response.

If you are a barrister, notify your insurer, seek legal advice through your insurer, and follow that advice. If you are a solicitor, apart from whatever formal entitlement you may have, I would suggest retaining a lawyer to assist you with your response.

Regardless of what formal advice you obtain, you should also find a trusted colleague to confide in, and do not be afraid to seek counselling services if you feel they would help.

CONCLUSION

Understanding our ethical obligations, as governed by the nature of our relationships with particular people and institutions, and paying attention to what they ask of us, provides a framework for ethical practice and a way both to minimise the risk of complaints and respond to them effectively if they occur.

In this way we can observe the spirit of the rules, as well as the letter.

Cameron Jackson is a barrister at Second Floor Selborne Chambers, Sydney. He specialises in administrative law, appellate law and coronial inquests, and has a special interest in appearing for professionals in disciplinary matters in both the state and federal jurisdictions. He is an advocacy instructor at the NSW Bar Association and has also provided advocacy instruction through the Toongabbie Legal Centre. Cameron is a member of the Administrative Law Committee of the Law Council of Australia. EMAIL [e-mail].

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^[1] The Legal Services Council website also contains useful links and resources: <http://www.legalservicescouncil.org.au/Pages/index.aspx> .

^[2] Law Council of Australia, Australian Solicitors Conduct Rules (24 August 2015) <www.lawcouncil.asn.au/files/web-pdf/Aus_Solicitors_Conduct_Rules.pdf>.

^[3] [2019] NSWCATOD 98.

^[4] See, for instance, Legal Profession Uniform Law (NSW), s6 (definition of ‘serious offence’) and s51 (which requires ‘serious offences’ to be notified within seven days, as modified by Legal Profession Uniform General Rules (NSW), r15).

^[5] For an explanation of active listening for lawyers, see D Binder et al, Lawyers as Counselors; A Client-Centred Approach, Thomson Reuters, 2012, ch 3.

^[6] Office of the Legal Services Commissioner, ‘Minimising complaints and maximising your ethical standards’ (24 May 2011) 2, <www.olsc.nsw.gov.au/Documents/minimisingcomplaints_lexisnexis_may2011.pdf>.

^[7] Ibid.

^[8] Ibid, 2.

^[9] For instance, Legal Profession Uniform Law (NSW), No. 16a, pt 4.2.

^[10] E Kübler-Ross, On Death and Dying, Simon & Schuster, 1970.