The terms of reference for this inquiry asked the Law Reform Commission to consider “the necessity for implementing alternative mechanisms to those presently existing to deal with complaints about the delivery of legal services to the public”.

After extensive investigation, the Commission has concluded that the existing system of handling complaints against lawyers does not serve the needs of complainants, the practising profession, or the community at large. In this Report, the Commission recommends major changes to the system, the most important of which is the creation of the Office of Legal Services Ombudsman.

Owing to the largely part-time, voluntary nature of the existing system, the processing of complaints takes too long (especially in the case of the Bar), investigations are often quite inadequate (especially in the case of the Law Society), and complainants feel left out of the process, leading to the dismissal of the vast number of complaints - and promoting the common idea that the legal profession is simply “looking after its own”. In particular, there is still a profound gap between what angers clients (and others) sufficiently to go to the trouble of complaining, and what lawyers and their professional associations see as important enough to merit serious attention, disciplinary action or compensation.

The Commission believes that a proper system of complaints handling must recognise that there are multiple aims which must be met: (1) there is a consumer dimension, with the consequent need to redress the complaints of dissatisfied users of legal services, but it also is necessary (2) to ensure the diligence and competence of individual practitioners, as well as (3) to set and maintain high standards of ethics and practice for the legal profession generally. One of our central criticisms of the operation of the existing system is that it is geared almost entirely to the second aim, fails to achieve even this adequately, and insufficiently addresses the other two aims.

The Commission has endeavoured to design a new system which is much more consumer-oriented and which actually will deal seriously and effectively with most complaints and disputes. Among other things, this will require educating the public about the nature of legal services and their rights and remedies under the disciplinary system, and educating the legal profession about the standards of practice and common courtesy to which clients should be able to feel entitled.

The other central criticism of the existing system is that it lacks the appearance of independence, and thus does not enjoy public confidence. The centrepiece of the reforms is the establishment of an independent, statutory, office of Legal Services Ombudsman, around which the rest of the proposed new system is designed.

The Legal Services Ombudsman (LSO) should be responsible for providing advice and assistance to all potential complainants, receiving all formal complaints, and monitoring all subsequent stages of the system. In addition, the LSO should have the power to investigate complaints directly (where the complaint involves a member of one of the professional Councils or someone else associated with the complaints handling system, or where the LSO believes the public interest so requires) and to take over from the Law Society or Bar Association the investigation of any complaint (at the discretion of the LSO).

The other key features of the recommended new system include:

• ensuring both the perception and the reality of the independence of the complaints handling system from the legal profession through the establishment of the office of LSO, as well as changes to the method of appointing lawyer and non-lawyer participants in the disciplinary system;
• strengthening the mechanisms for ensuring the accountability of the legal professional associations and the other institutions involved in the complaints handling system, through a more robust, non-lawyer dominated, Legal Services Conduct Review Panel;
• much better access to the system for potential complainants, in terms of information, language, physical access and so on;
• a more simple, streamlined structure, with the central intake of all complaints (including disputes about fees and costs), a central source of advice and assistance, and a single Legal Services Tribunal to conduct hearings with greater and more flexible powers to sanction lawyers and to make compensatory orders in favour of complainants;
• redress of the current imbalance of rights and safeguards between complainants and lawyers, with the creation of a statutory Complainants’ Charter of Rights;
• a clearer distinction between consumer-type disputes and disciplinary matters, with a much greater emphasis on consensual dispute resolution, arbitration and compensation in the former cases;
• increased attention to education and prevention measures, such as compulsory training in legal ethics and professional responsibility for law students, feedback to the legal profession from the disciplinary system, and the emphasis on “Client Care” principles and practices in solicitors’ offices; and
• funding these reforms, especially the establishment of the office of LSO, through a modest levy or surcharge on lawyers’ practising certificates, which will permit the release of the existing sources of funding for the purposes of legal aid.

In Chapter 2 of this Report, the Commission details the extensive research and consultation program undertaken for the purposes of this reference, which included a survey of the complaint files of the Law Society and the Bar Association, and the commissioning of a public opinion poll on how complaints against lawyers should be handled. In Chapter 3, the Commission identifies a set of “best practice” principles for handling complaints against lawyers. These principles are then used to measure the soundness of the existing system, and to design a new system.

In Chapters 4 and 5, the Commission provides its 77 recommendations for reform, together with supporting commentary. Chapter 4 covers the “core recommendations”, covering: the aims of the system; the role and powers of the Legal Services Ombudsman; the rights and position of complainants; the diversion of some complaints for consensual dispute resolution; the continuing role of the professional Councils; the creation of a Legal Services Tribunal; and the mechanism for external review of the complaints handling system. Chapter 5 covers matters of education, prevention, and professional standards; sources of funding for the new system; and other related matters, such as confidentiality and privilege, reciprocal (inter-state) recognition and enforcement of disciplinary orders, the handling of disputes over legal fees and costs, the abolition of solicitors’ liens, and the clarification of some statutory provisions.

A summary of all the collected recommendations is contained in Chapter 6.