Lawyers
Don’t kid yourself that you will receive justice in the courts simply by your son telling the truth about what happened to him. If your son has been accused of a criminal offence, it is important to try to find good legal representation to ensure his evidence is presented to the court in the best possible way.
If you can afford it, find someone quickly as your son must not make any statements or admissions that could be used as evidence against him later.
If your son can’t afford a lawyer, find out about legal aid in your state. If a legal aid package is available, sometimes you can persuade a decent lawyer to use that and represent your son.
Once you have found a lawyer, remember they work to get paid. Your lawyer is not your friend, nor your counsellor. The legal system is like the horse racing industry, conflicts of interest between trainers, owners, jockeys, bookies, and punters are inevitable.
The industry looks after the interests of the industry, so be mindful that your lawyer may make decisions which are not necessarily in your son’s best interest. You need to be precise with your instructions and vigilant with your record keeping. Do your best to be a professional client, always behave cautiously and professionally.
Sadly, many lawyers are far from ethical, and it isn’t easy for someone with no experience of the legal system to know how to find the right person. Don’t be afraid to shop around for the right lawyer, ask people for recommendations, check out reviews and ask around concerning a possible bias against men.
If you have a conversation with your lawyer and receive advice or give instructions verbally, always document the conversation in writing by sending a follow up email, for example: ‘Yesterday when we spoke you said…’ ‘As we agreed this morning, you will…’. This gives the lawyer the opportunity to correct any misunderstandings you may have, and it gives both parties a record of what was said.
If you want your lawyer to do something, even if you have told them verbally what you want them to do, always ensure you give them written instructions, for example: ‘My instructions are…’ and keep copies of all the emails you send and receive.
Lawyers can, and do, omit to tell clients about legal principles that apply to their situation and the legal options available to them. Here is an example from NSW:
A divorced man, his ex-wife and children had all been living in NSW. His ex-wife decided to move to Queensland and took their children without his knowledge. He engaged a lawyer for help with the situation and paid $15,000 in legal fees before the lawyer mentioned he could have applied for a recovery order himself. Remember to ask open-ended questions and ask for alternative options – it could save you a lot of time and money.
If your lawyer gives you advice you do not understand, ask for a full explanation, ask as many questions as you need to until you understand what they have said. Ask for the advice to be sent to you in writing.
Get a second opinion on the advice from another lawyer if you need to. If you have a gut feeling that your lawyer’s advice is incorrect, or against your interests, consider the advice very, very carefully before you accept it. Tell them if you’re not comfortable and seek other opinions – change lawyers, if necessary.
Advocates’ (Lawyers’) immunity
Lawyers can get away with giving bad advice, or acting negligently, in so far as the client cannot get compensation if they lose money due to their lawyer’s negligence, if the advice or actions are related to a court case that ends in a trial.
Lawyers, just like doctors, accountants and engineers, must have professional negligence insurance. If you believe your lawyer has acted negligently and consequently you have lost money, you can make a claim against your lawyer’s professional indemnity insurance. You may receive compensation if the negligence was not related to a court case or if it was related to a court case that ended in an out of court settlement before the trial.
New Zealand, Britain, the USA and South Africa have abandoned advocates’ immunity but there is no sign that it will be abandoned in Australia. Politicians could pass a law cancelling it and if you or someone in your family has been the victim of a lawyer whose negligence was protected by advocates immunity, tell your State and Federal MPs that this has happened to you.
You can report a lawyer who has supported a false allegation or who has made a statement the lawyer knows is untrue or who has acted negligently to various organisations and there is a Register of disciplinary action taken against lawyers in NSW.
Each State and Territory has organisations that may choose to investigate allegations of misconduct by lawyers. The NSW OLSC publishes a Register which contains information about disciplinary action taken against lawyers investigated by:
- the NSW Legal Services Commissioner
- the Council of the Law Society of New South Wales
- the Council of the New South Wales Bar Association
- the NSW Civil and Administrative Tribunal, and
- Superior Courts
You can find the register here: https://olsc.nsw.gov.au/discipline/register-of-disciplinary-action.html
The Register contains a summary of each investigation that led to disciplinary action. It lists summaries of findings made in the last 50 days and you can search the Register by the name of solicitor or the type of disciplinary action. Recently, the list of investigations in the last 50 days contained findings of investigations against nine lawyers. If only nine lawyers were disciplined over a 50-day period in NSW, is it because only a tiny number of lawyers act inappropriately or is it because some lawyers that do act inappropriately are not disciplined at all?
Reassuring words about the rules of conduct and discipline of lawyers who do not follow them
For example on the NSW OLSC website you can find a factsheet on Opposing Legal Representatives.
The Advocacy Rules for lawyers include the following principles:
- A lawyer must not knowingly make a false statement to the opponent in relation to the case (including its settlement).
- A lawyer must take all necessary steps to correct any false statement unknowingly made by the lawyer to the opponent as soon as possible after the lawyer becomes aware that the statement was false.
- A lawyer must not make a false statement to the opponent simply by failing to correct an error on any matter stated to the lawyer by the opponent.
- Lawyers should not make unsupported or irrelevant allegations or engage in insults or intimidation.
- Lawyers also have a duty to the court to be frank, honest, and independent. It is professional misconduct for a lawyer to knowingly mislead the court.
And the NSW Office of the Legal Services Commissioner website states about negligence:
‘Negligence allegations may be considered as a consumer matter if they relate to the provision of legal services to a complainant by a lawyer or law practice. Negligence will only be a disciplinary matter if the conduct of the lawyer falls so far short of the standard of competence and diligence expected of a reasonably competent lawyer as to amount to unsatisfactory professional conduct or professional misconduct.’
There is a ‘Uniform Law’ governing lawyers’ conduct. The Legal Services Council provides information on this law.
The Uniform Law harmonises regulation of the legal profession, cuts red tape and creates a single system to govern legal practice. The scheme also promotes informed consumer choice and has strong consumer protection measures. The Uniform Law’s overall objectives are to promote the administration of justice and an efficient and effective Australian legal profession.
The Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 include the following:
Section 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.
Section 19 – Duty to the court
19.1 A solicitor must not deceive or knowingly or recklessly mislead the court.
19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading. 19.3 A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.
Section 21 – Responsible use of court process and privilege
21.1 A solicitor must take care to ensure that the solicitor’s advice to invoke the coercive powers of a court.
21.1.1 is reasonably justified by the material then available to the solicitor,
21.1.2 is appropriate for the robust advancement of the client’s case on its merits,
21.1.3 is not given principally in order to harass or embarrass a person, and
21.1.4 is not given principally in order to gain some collateral advantage for the client or the solicitor or a third party out of court.
How to report a lawyer you suspect is acting inappropriately
Each State and Territory has an independent statutory body that deals with complaints about lawyers.
The Office of the Legal Services Commissioner NSW 1800 242 958
Legal Services Commissioner QLD 1300 655 754
Legal Practitioners Conduct Board SA (08) 8212 7924
Legal Profession Board of Tasmania (03) 6226 3000
Legal Services Commissioner VIC 1300 796 344
Legal Profession Complaints Committee WA (08) 9461 2299
Law Society of the ACT (02) 6247 5700
Law Society of the Northern Territory (08) 8981 5104
These organisations will provide you with advice on whether, and how, you can make a complaint about a lawyer.
What will happen if you make an insurance claim or complaint?
The people investigating the complaint will not help you draft your claim or complaint or to submit evidence. If you provide evidence to support a complaint in a format the investigators don’t accept, for example, you supply quotes from emails without also supplying copies of the full emails from which you have quoted, the investigator will close the investigation on the basis that they have ‘seen no evidence’ to substantiate your complaint.