Access to Justice Down Under: Three Innovations to Consider

A lot is the same…

As I approach the end of my month in Australia, I have found a lot of similarities in the challenges faced by people using the justice systems in New South Wales (NSW) and Victoria – the two most populated states with the largest legal professions in Australia – to those familiar to us in North America. Including:

• Growing numbers of self-represented litigants in family and civil courts
• Limited systems for collecting data about SRLs, and their impact on the justice system and the delivery of legal services
• Reluctance among lawyers to embrace unbundled legal services, often justified by the same (ungrounded) arguments we hear in North America (“our clients don’t understand limited scope retainers, they would all sue us”)
• The continued professional monopoly of the Bar, reinforced by continued murkiness about what constitutes legal services (as one Australian blogger, Justinian, put it: “Lawyers and lawyering” is defined to mean whatever you want it to mean…. It doesn’t matter, as long as lawyers have a monopoly on whatever it is they do.”)
• An increasingly overburdened “third sector” of community agencies such as the Community Legal Centres trying to assist those who cannot afford legal counsel (and like Canada, the US, and the UK, this is most of the population)

…but some things are different

I have also come across some interesting and important innovations that have implications for SRLs, and for the way justice system services are delivered to the public. Here is a short summary of three such innovations, that have the potential to make a distinctly “Aussie-A2J” contribution.

1. Co-regulation of the legal profession in New South Wales and Victoria by the Law Societies and government

A 1993 report by the New South Wales Law Commission – “Scrutiny of the Legal Profession – Complaints Against Lawyers”  concluded that the complaints system administered and controlled by the Law Society of New South Wales “…did not serve the needs of complainants, the practising profession, or the community at large.”

In response, the New South Wales government removed the exclusive right to oversight of their members from the Law Society of NSW, and created the Office of the Legal Services Commissioner (OLSC). A similar body – the Legal Services Board – was created for the state of Victoria in 2005.

How does the new complaints process work? Complaints from the public about lawyers in NSW and Victoria now go directly to the government bodies, not to the law societies. The OLSC received about 8,000 complaints – mostly about conduct, communication and billing issues – last year, and about 2,000 were formally submitted and investigated. There is a special mediation process for dealing with costs complaints .  A small percentage of cases are still sent to the Law Society for resolution (that’s the “co” part, and it’s contentious).

Does a government agency do a better job of making the legal profession accountable than the profession itself?

Taking oversight responsibility away from the profession is an important step. One insider told me: “Having the OLSC as co-regulator allows people to trust the system more. It’s no longer Dracula guarding the gate to the blood bank. Having an organization truly dedicated to dealing with complaints is better for consumers overall and prevents inefficiency. The staff at OLSC are genuinely concerned with the issues, and are ensuring the profession upholds its standards.”

On the other hand, the Legal Services Commission, as well as its counterpart in Victoria, is clearly underfunded and understaffed. As the number of complaints grows each year, the lack of resources to manage them properly will become increasingly problematic.

2. Efforts to make legal costs more transparent

The Uniform Legal Profession Act 2015 legislates on the question of legal costs disclosure. It requires lawyers in these states to give their clients a written estimate of total legal costs at the time that initial instructions are taken; to complete a “costs disclosures form” for cases in which they estimate costs at more than $3000; to charge no more than fair and reasonable costs and not to act in a way that unnecessarily results in delay and increases costs; and to inform the client when there is a significant change in estimated legal costs.

Will these provisions lead to greater costs transparency and more empowered clients? Compliance with these new rules may be rudimentary, or it could be transformative. Time will tell. But the principle is now established that the Bars of NSW and Victoria are subject to legislative requirements regarding their billing practices – furthermore alleged breaches will be investigated by a government body, rather than the profession itself (above).

3. Model Litigant Rules – the fair and honest use of legal proceedings

The Australian federal government has adopted Model Litigant Rules for all government parties (government departments, agencies and corporations) in litigation.

The Model Litigant Rules require that when the government is a party to a lawsuit, they must (among other obligations):

• Pay claims they know are legitimate without litigation
• Avoid protracting a dispute and attempt to make settlement wherever possible
• Where litigation is necessary, not force a claimant to prove a matter they already know to be true
• When the only dispute is over the amount of compensation or quantum, not argue over liability
• When a claimant is without resources, not use this to force them to drop their claim by engaging in costly litigation.

The reasoning behind the Model Litigant Rules is that the only interest that a government party should have in litigation is the public interest – it should not therefore adopt the adversarial tactics of a private party. This principle was originally established in relation to criminal proceedings brought by the Crown, and extended to civil cases in a 1996 decision (Morley & Ors v Australian Securities and Investments Commission ((1996) 139 ALR 595).

Complaints about breaches of the Model Litigant Rules – brought by members of the public, media sources, and via self-reporting by government agencies contracting with private legal service providers – go to the federal Office of Legal Services Coordination. Usage has been rising steadily as public awareness of the Model Litigant Rules grows. In 2011/12, 110 complaints were brought, of which 40 were upheld after investigation (for more information, see www.ruleoflaw.org.au).

On the downside, there is similar concern about underfunding and understaffing as I described above in relation to the NSW and Victoria co-regulation scheme. As one politician succinctly put it, “…model litigant rules will become meaningless without adequate means to enforce them.” (Senator Nick Baulkus, Hansard March 8^th 1999).

Nonetheless, the concept of Model Litigant Rules – and especially the tantalizing idea that in a perfect world they might be extended to all legal practitioners acting on behalf of private clients – has the potential to change the way that litigation is conducted, including the experience of working with opposing counsel for SRLs.

Could Model Litigant Rules – let’s call them Model Litigation Rules if we could apply them to all litigation parties – have any future in North America?