Report on the 2008 Family Law Round Table convened by the Legal Services Commissioner of Victoria

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1 Report on the 2008 Family Law Round Table convened by the Legal Services Commissioner of Victoria

2 Level 9, 330 Collins Street Melbourne VIC 3000 DX 185 Melbourne Phone: or Fax:

3 CONTENTS CONTENTS Acknowledgments Page 1 Introduction Page 2 The Family Law Round Table Page 4 Way Forward Page 11 Conclusion Page 12 Appendix Page 13 - Statistics on Family Law Complaints - Key Definitions - D-Day s lucrative landing for lawyers

4 ACKNOWLEDGMENTS ACKNOWLEDGMENTS The Legal Services Commissioner of Victoria, Ms Victoria Marles, would like to thank those who so generously gave up their time to participate in the Family Law Round Table forum. The Commissioner acknowledges the invaluable advice and input participants provided on the issue of complaints in family law matters. Page 1

5 INTRODUCTION INTRODUCTION In January 2008, an article published in The Sunday Age pinpointed Monday, 14 January as the beginning of what was anticipated to be a peak period for family lawyers, with a considerable number of couples expected to seek legal advice for a divorce or separation. During the same period, Victoria s Legal Services Commissioner, the agency responsible for the receipt, investigation and resolution of complaints about lawyers, identified family law as the single area of law with the most complaints about lawyers. Each year, the Commissioner receives approximately 2,000 complaints from consumers of legal services. Roughly one-fifth of the total number of complaints relate to family law. Complaints data maintained by the Legal Services Commissioner reveals that on average: Over half of family law complaints are disciplinary (a complaint about the conduct of the practitioner); Over one-fifth are civil (a dispute about legal costs not exceeding $25,000; a pecuniary loss claim; or any other genuine dispute); and Only a small number are mixed (a complaint involving both a disciplinary complaint and a civil dispute). Despite the significant number of complaints relating to family law practitioners, only a fraction of the complaints lead to formal action against the practitioner. By way of example, between December 2005 and December 2007, the Commissioner received a total of 4,169 complaints, 863 of these concerned family law. Of the 863 family law complaints, there were no complaints where the Commissioner believed there was a reasonable likelihood that the Tribunal would find the practitioner guilty of professional misconduct. Although, there were 10 family law complaints where the Commissioner believed there was a reasonable likelihood the Tribunal would find the practitioner guilty of unsatisfactory professional conduct compared with 89 complaints in all other areas of law for the same period. This led the Commissioner to query why so many clients in family law were dissatisfied with their lawyers. One of the Commissioner s key objectives defined in the Legal Profession Act 2004 is to educate the legal profession about issues of concern to the profession and to consumers of legal services. The Commissioner perceived the high number of complaints in family law as an issue of concern that should be addressed under this objective. Page 2

6 In addressing the issue, the Commissioner felt it was imperative to understand the reasons behind family law complaints, along with some of the common issues that arise in family law cases. In February 2008, the Commissioner consulted a number of key individuals and organisations associated with family law, including The Honourable Justice Mushin from the Family Court of Australia, the Managing Lawyer of the Family Law Service of Victoria Legal Aid, the Family Law Bar Association and the Law Institute of Victoria. The Commissioner sought their views on why family law generates a significant number of complaints about lawyers, in addition to their opinion on what can be done to address the complaints. It was evident through these discussions that this issue should be explored on a wider scale, to glean an array of perspectives from those with an interest or involvement in family law. Furthermore, the Commissioner recognised a real benefit in brainstorming the issue with individuals and organisations with practical experience and knowledge of family law. To that end, in May 2008, the Legal Services Commissioner invited a diverse range of representatives to take part in the Family Law Round Table forum. The issues and innovative ideas raised at the forum are detailed in this report. Page 3

7 THE FAMILY LAW ROUND TABLE THE FAMILY LAW ROUND TABLE The guests On 26 May 2008, forty people participated in the Legal Services Commissioner s Family Law Round Table forum representing the following agencies: Victoria Legal Aid, the Family Court of Australia, Family Relationship Centres, the Federal Magistrates Court, the Victorian Aboriginal Legal Service, the Family Law Assistance Program, the Women s Legal Service Victoria, LifeWorks, the South West Community Legal Centre, the Aboriginal Family Violence Prevention and Legal Service, the Australian Institute of Family Studies, the Family Law Section of the Law Institute of Victoria, the Family Law Bar Association (Victorian Bar), Monash University Faculty of Law, Melbourne University Faculty of Law, Latrobe University Faculty of Law, Victoria Univeristy School of Law, Court Network and Relationships Australia. The guests motivations The guests motivations to participate in the forum varied. Some participants hoped to assist in resolving issues for both the client and the practitioner; some were interested in hearing other views and perspectives on the issue; while others wanted to ensure their organisation had a voice in the matter. Three sessions at the forum The forum was structured into three sessions, with each session focusing upon a specific stage in the legal matter, such as at the start of the journey, in the course of the lawyer/client relationship and outside the lawyer s office: inside the process. Structuring the sessions in this format allowed the group to highlight the specific issues that arise at each stage of the clientpractitioner relationship. The issues raised in each session are outlined in this report. Participants discuss the issues involved in family law. Page 4

8 Session 1 - At the start of the journey Issues arise from the outset Complexities between clients and their lawyers can arise as early as the initial consultation. Such issues may arise from any number of things, including miscommunication or a clash of personalities. The very nature of family law, being a highly emotional and stressful area of law, can spark tensions between the lawyer and client. The high level of emotions and stress experienced by both client and lawyer can impact upon their ability to develop and maintain a positive working relationship. To address this issue, participants suggested the development of continuing professional development programs for family lawyers on dealing with emotional, anxious or stressed clients, along with training on grief and loss. The forum acknowledged the difficulty facing family lawyers where in some circumstances they feel compelled to provide emotional counselling in conjunction with legal advice. Some participants disputed this notion, arguing that lawyers should not be expected to counsel their clients when their role is purely to provide legal advice. In family law, this role confusion is a common cause of tension between the lawyer and client, where the client seeks emotional guidance in addition to legal advice from the lawyer. Collaborative model for dealing with complex and emotional issues To address this issue, the forum proposed developing a collaborative approach that would see the legal profession and community support agencies working collectively to ensure the client receives both legal advice and emotional support. Under this collaborative model, where the practitioner identifies that a client requires emotional support, the lawyer would refer them to a support agency that could best deal with their needs. This would ensure the client receives legal advice from the lawyer and emotional support from the appropriate entity. For this initiative to be a success, lawyers and community support agencies would be required to work together to ensure the client is referred through the correct processes and the lawyer would need a sound understanding of the support agencies that exist in their area. Participants suggested the development of networks between the lawyers and community support agencies, which may lead to knowledge sharing opportunities between the two professions. While this initiative may bear significant benefits for the client and the lawyer, the forum acknowledged that making a referral to support agencies may seem a daunting task for lawyers with little experience in dealing with such agencies. In response, the forum recommended providing training for lawyers on the process involved for making a referral to support agencies. This training may be facilitated through an inter-disciplinary approach between the professional associations and community support agencies. Page 5

9 Some participants felt the referral initiative was slightly onerous on the practitioner. The forum suggested an alternative option, where practitioners provide brochures and information about local support agencies to clients who may appear to require emotional assistance or counselling. This alleviates the practitioner of the responsibility of making the referral and empowers the client to make contact with the agency in their own time. Participants discuss ways of improving the client-practitioner relationship in family law matters. Client expectations and how to handle them The forum highlighted client expectations as an issue that may cause conflict between the client and lawyer. The forum discussed how some clients possess unrealistic expectations of the outcome of their case. In family law, the outcome of a case can be crucial to the individual particularly when a lot may be at stake, including finances, the marital home, access to children and personal possessions. In some cases, the client may blame the practitioner for not delivering the outcome they anticipated. The forum suggested that at the first meeting, the lawyer may clarify with the client short, medium and long term goals they hope to achieve in their legal matter. As the matter progresses, the lawyer should monitor the goals to determine whether they will be achieved. Where the lawyer identifies that a goal will not be met, the lawyer should endeavour to discuss the matter with the client immediately. This will assist the client to maintain realistic expectations of their legal matter and more importantly, realistic expectations of what the lawyer can deliver. The forum highlighted client expectations of another nature, in the form of clients expecting their lawyer to be available around the clock to deal with their legal matter. When the lawyer is unavailable to see the client at a particular time, the client may become dissatisfied with the lawyer. To address this issue, the forum suggested lawyers establish parameters with the client at the initial meeting. Lawyers should clarify what their role as a lawyer will entail; the advice they can and cannot provide, their hours of availability and estimated period of response should the client leave a message for the lawyer. One participant explained how a number of lawyers write to the client after the first meeting, outlining specific details such as their hours and days of availability, the role of the secretary, payment details and expectations of the client to be punctual Page 6

10 to all meetings and court appearances. Ensuring the client is aware of these details at the beginning of the relationship may assist the lawyer in better managing client expectations. Cultural awareness The forum highlighted the importance of family lawyers having knowledge of cultural, religious or health issues associated with their clients at the commencement of their relationship. The forum acknowledged family law is a unique area of law where such details may assist the lawyer to have a better understanding of their clients needs. These details may also assist the lawyer to exercise sensitivity or caution in the course of the legal matter. Having knowledge of such information may assist the practitioner in identifying tell-tale signs that additional assistance is needed. For example, where a client indicates they have a mental illness, the lawyer may adopt strategies for dealing with the client and take necessary measures when informing the client of news that may be perceived as negative to the client. Or, where a client indicates that English is a second language, the lawyer can adopt plain English skills when communicating with the client. To identify such information, the forum discussed the development of an intake and assessment questionnaire to provide clients at the initial interview. The forum discussed how knowing such information will enable lawyers to have a greater understanding of their clients and allow for the development of strategies for better dealing with clients. The forum acknowledged that to support this initiative, lawyers may require training around cultural diversity, plain English skills and understanding mental illness including depression. Other initiatives A number of other initiatives emerged from this session including asking the client to prepare questions before the first interview and encouraging the client to bring a friend or relative to the first interview as an avenue of support or as a means of debriefing after the meeting. Participants suggested family lawyers should emphasise the use of alternative dispute resolution, including mediation and collaborative law. The notion of collaborative law is a relatively new phenomenon in the legal scene but is increasingly used in resolving family law matters. Collaborative law involves lawyers and their clients working with non-legal agencies, such as support agencies to resolve the legal matter. The forum emphasised the need for more education around the role and responsibilities of lawyers. A prior understanding of the role of the lawyer may assist the client and lawyer to develop and maintain a positive relationship throughout the course of the legal matter. Page 7

11 Session 2 - In the course of the lawyer/client relationship Communication issues Communication is a common issue which features in a number of family law complaints received by the Commissioner. The complaints vary, from the lawyer failing to return calls to the lawyer failing to correspond with the client. Complaints made to the Commissioner reveal the importance of solid communication in family law matters. For this reason, the Commissioner felt it was imperative to explore the issue of communication to determine ways of improving communication between the lawyer and client in family law cases. Case study The forum was presented with a case study where the lawyer failed to notify the client of his intention to take leave. The client was unhappy that the lawyer failed to inform him of his absence, particularly at a time when he required his services. In response to this scenario, the forum suggested a number of initiatives that family lawyers can employ to improve communication with their clients. The forum suggested law practices might develop or review their internal and external processes around communication to ensure efficient lines of communication with their clients. The forum urged law practices to ensure their processes closed any gaps in the lines of communicating with clients. For example, when the lawyer is absent, another lawyer may be appointed to assist the client with their enquiry. In the case of an ongoing matter, the forum suggested the relevant staff are informed and regularly updated on the status of the case. Participants agreed that when a lawyer takes leave, even for a short period of time, it is important that the lawyer notifies their clients of their absence, allowing the client to contact the lawyer with any concerns before they take leave. Training The forum highlighted the need for family lawyers to undertake training in communication, particularly on avoiding legal jargon. The forum discussed how adopting simple, plain language when explaining legal proceedings will assist the client to better understand their case and provide informed instructions to their lawyer. In addition to improving communication skills, the forum suggested family lawyers undertake business training to enhance the quality of service offered to clients. The forum discussed how lawyers are responsible for managing a process and therefore may benefit from training in the area of people management and process management. Business training may encourage the lawyer to identify whether they are best servicing their clients and more importantly, whether their clients are satisfied with their services. Page 8

12 Complaints The forum suggested law practices should implement their own systems for dealing with complaints. These systems should incorporate processes for making a complaint, who deals with the complaint and what action will be taken to address the complaint. Clients should be informed at the initial interview on how a complaint can be made and how they are dealt with. Internal complaint handling may encourage the client and lawyer to resolve the dispute and therefore retain the relationship throughout the remainder of the legal matter. Additionally, the forum encouraged lawyers to actively seek feedback from clients that have expressed dissatisfaction with their services. Such feedback will assist the lawyer to identify areas of their service where improvement is needed. One participant raised the notion of using complaints made to the Legal Services Commissioner as a means for educating practitioners about ethical practice and better standards of service. The participant suggested the Commissioner may write to the lawyer one month after a complaint or dispute is settled, asking the lawyer to reflect on the complaint to determine whether any lessons can be learnt from the complaint and to consider what actions could have prevented the client from making a complaint. This may not be practicable in all complaints but wherever the Commissioner sees fit. Page 9

13 Session 3 - Outside the lawyer s office: inside the process A number of family law complaints arise from proceedings where the matter is before the courts. For this reason, the Commissioner cannot deal with the complaint and the complainant is advised to raise the matter during the court proceedings. The Commissioner felt it was important to focus on this stage of the legal proceedings and advise the courts on any issues raised at the forum. The forum highlighted the need for greater community awareness and understanding of the court process. Participants discussed how often court users perceived the courts as a means for getting justice or telling their story, however they fail to understand this is not always the case. In response to this, the forum suggested developing a number of resources to promote understanding and awareness of the court system. One suggestion included the development of an interactive multi-media resource to explain the court processes and operations. Another initiative included workshops and information sessions facilitated by the Family Court, outlining the court process to those considering litigation to resolve their dispute. In addition, the group felt more education in general was required around alternative options available apart from the courts process, such as mediation. WAY FORWARD Page 10

14 WAY FORWARD In moving forward on this issue, the Commissioner will distribute this report to a number of key agencies, in the anticipation that they will consider implementing the initiatives in their respective fields to create positive outcomes for both the client and lawyer in family law matters. The Commissioner has identified a number of initiatives from the forum she will pursue in a bid to improve the client-lawyer relationship in this area. These include: Encouraging the professional associations to promote collaborative law to the legal profession and consumers as a means of resolving family law cases. Discussing with the professional associations the possibility of developing an intake and assessment questionnaire, which can be utilised by the lawyer at the initial interview to gauge specific issues associated with the client. Writing to family law lecturers of Victorian universities, highlighting the key issues that arose through the forum, which they may consider incorporating in their family law curriculum. Highlighting the key issues raised in this report to Continuing Professional Development (CPD) providers, which they may also consider incorporating in their CPD programs for family lawyers. Encouraging the professional associations, universities and relationship support groups to consider forming a multi-disciplinary working group. This group could potentially lead the development of a number of initiatives highlighted in this report, for example the referral pathways initiative. Educating the lawyer and client on developing a positive relationship through articles published in local media, legal publications and consumer focused publications. Writing to relevant members of the judiciary, highlighting key issues raised at the forum that may be of interest to the judiciary. Page 11

15 CONCLUSION CONCLUSION The Commissioner considered the Family Law Round Table forum to be a great success. Through the forum, the Commissioner gained insight into the common issues that arise in family law cases, which may lead to conflict between the lawyer and the client and identified some practical ideas for addressing this issue. Page 12

16 APPENDIX APPENDIX Statistics on Family Law Complaints This section provides an overview of complaints made to the Legal Services Commissioner that involved family law between the period of December 2005 and December Number of complaints Between December 2005 and December 2007 the Commissioner received 4169 complaints about practitioners. Of these, 863 (20%) involved family law. Types of complaints Of the 863 family law complaints received: 483 (56%) were disciplinary 244 (28%) were civil 136 (16%) were mixed Nature of the complaints In the 863 complaints, the top six issues complained about were: Issue No. of Complaints Costs/bills 391 (34%) Negligence or inadequate handling of case 265 (23%) Communication 90 (8%) Failure to follow instructions 66 (5%) Delay 55 (4%) Dishonesty/allegations of being misled by the lawyer 55 (4%) What did people complain about? Disciplinary complaints Practitioner failed to correspond with complainant. Practitioner failed to return calls. Practitioner failed to provide information about costs. Practitioner was abusive and/or rude. Practitioner was dishonest and/or misleading. Practitioner did not follow the complainant s instructions. Practitioner did not provide files to complainant upon request. Allegations of conflict of interest. Practitioner failed to provide a detailed bill. Civil complaints Practitioner overcharged for services. Page 13

17 Statistics on Family Law Complaints (continued) Who complained? The following table compares the gender of people that made a complaint involving family law with the gender of complainants in all areas of law. Gender Family law complaints All complaints Female Male Both 1 51 Unknown 8 12 Outcomes of the complaints 701 (81%) of the 863 complaints about family law have been closed. Of the 701 complaints closed: There were no complaints where the Commissioner believed there was a reasonable likelihood the Tribunal would find the practitioner guilty of professional misconduct, compared with 5 practitioners in all other areas of law for the same period. There were 10 complaints where the Commissioner believed there was a reasonable likelhood the Tribunal would find the practitioner guilty of unsatisfactory professional conduct compared with 89 practitioners in all other areas of law for the same period. The following table compares the outcomes of these family law matters with all practitioners considered guilty of unsatisfactory professional conduct in the same period. Outcome No. of family law files No. of all files Reprimand 4 13 Caution 0 29 No further action 6 45 No charges laid but 0 2 compensation paid TOTAL Of the 142 civil complaints closed, 53 were advised to apply to VCAT to settle their dispute. (Parties are advised to apply to VCAT when the Commissioner is unable to settle their dispute through mediation or other means of dispute resolution). 365 complaints were summarily dismissed. Of the complaints summarily dismissed: 223 were disciplinary complaints 111 were civil complaints 31 were mixed complaints Page 14

18 Key Definitions Caution: following an investigation, where the Commissioner forms the view that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct the Commissioner may, with the consent of the practitioner, caution the practitioner. Civil Complaint: means a civil dispute. Civil Dispute: means a costs dispute (dispute about legal costs not exceeding $25,000); a pecuniary loss claim; or any other genuine dispute. Commissioner: means the Legal Services Commissioner. Complainant: means a person who makes a complaint to the Commissioner. Disciplinary Complaint: means a complaint about the conduct of a practitioner to the extent that the conduct may amount to unsatisfactory professional conduct or professional misconduct. Mixed Complaint: means a complaint involving both a disciplinary complaint and a civil dispute. No charges laid but compensation paid: following an investigation, where the Commissioner forms the view that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct the Commissioner may decide not to make an application to the Tribunal and may require the practitioner to pay compensation as a condition of doing so. No further action: following an investigation, where the Commissioner forms the view that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct the Commissioner may take no further action against the practitioner if satisfied that the practitioner is generally competent and diligent and there has been no substantiated complaint about the conduct of the practitioner within the last five years. Page 15

19 Key Definitions (continued) Professional Misconduct: includes: unsatisfactory professional conduct where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence; and conduct of a practitioner, whether occurring in connection with the practice of law or otherwise, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. Reprimand: following an investigation, where the Commissioner forms the view that there is a reasonable likelihood that the Tribunal would find the practitioner guilty of unsatisfactory professional conduct the Commissioner may, with the consent of the practitioner, reprimand the practitioner. Summary Dismissal: the Act provides that the Commissioner may dismiss a complaint in certain circumstances. This includes where the complaint is vexatious, misconceived or lacking in substance. Unsatisfactory Professional Conduct: includes conduct of a practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner. Victorian Civil and Administrative Tribunal (VCAT or the Tribunal): means the judicial body that hears and determines applications from the Legal Services Commissioner for a disciplinary order and applications from the parties to a civil dispute. Page 16

20 D-Day s lucrative landing for lawyers Byrne, M 2008, D-Day s lucrative landing for lawyers, Sunday Age, 13 January, p. 3. Page 17

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