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1 Business Plan THE CHANGING REGULATORY ENVIRONMENT The Council of Australian Governments (COAG) decided in April 2009 to embark upon a process of national legal profession reform designed to recommend nationally uniform legislation for the regulation of the provision of legal services across the states and territories and an appropriate regulatory architecture. The upshot cutting a long story short is that Queensland, New South Wales, Victoria and the Northern Territory have agreed to repeal their local Legal Profession Acts and to substitute the Legal Profession National Law (the National Law). The machinery provisions of the National Law are expected to commence in mid 2012 and the substantive, operational provisions on or by 1 July The other states and territories may or may not join the national scheme either in the interim or down the track. The National Law is principles based legislation. Consistent with trends in regulation more generally it is firm about outcomes, flexible about means. It puts significantly more emphasis than the Legal Profession Act 2007 it will replace on spelling out broadly stated principles which describe the policy outcomes it seeks to achieve and less on prescribing in detail exactly how those outcomes should be achieved. Principles based regulation has a compelling logic to it. It builds on the idea that lawyers are better placed than legislators and regulators to decide how their business will best achieve any given regulatory objective. It follows that legislators and regulators should specify the outcomes they require but give lawyers the flexibility to decide how best to achieve those outcomes in the circumstances of their particular legal practice. That is a good thing but something of a two edged sword. Principles based regulation gifts lawyers with greater flexibility but less certainty. It is not always obvious how a broadly stated principle applies in any given fact situation. We have adjusted our Business Plan accordingly. We will engage more proactively with lawyers and consumers and publish more and better information to help fill the gaps. We will publish a series of regulatory guides to help both lawyers and users of legal services better understand how a lawyer s professional obligations apply in practice in grey areas March

2 where their application may be uncertain. The guides will set out the factors we take into account in exercising our responsibilities when we are dealing with a lawyer s conduct in those circumstances. Similarly we will publish Information for Consumers to help users of legal services better understand and navigate the system, particularly those consumers who are least able to assert their legitimate interests themselves. That said, our key strategic challenge over the period ahead is to ready ourselves to exercise the enhanced and additional, nationally uniform regulatory powers and responsibilities that will come our way when the National Law commences, to exercise them fully and effectively from day one. We should ensure in the meantime that we continue to do our current job and do it well, consistent with our purposes and values. The National Law will give us, in addition to our current powers and responsibilities: enhanced powers to provide users of legal services a means of redress for complaints. It will enable users of legal services to make complaints about not only lawyers but also law practices. It will give us the obligation and not merely the discretion we have now to try to resolve consumer matters as soon as practicable and informally, by helping the parties to reach agreement. It will give us the entirely new power, when the parties can t agree, to resolve consumer matters by making binding determinations that we believe are fair and reasonable in all the circumstances of a matter, including by cautioning the lawyer subject to complaint or by ordering the lawyer to apologise or to redo the work or to reduce or waive the fee or to undertake training or be supervised or pay compensation of up to $25,000; the additional responsibility (currently vested in the courts) to resolve solicitor client costs disputes (where the total costs payable are less than $100,000 or the amount in dispute is less than $10,000). The National Law defines solicitor client cost disputes to be a species of consumer matter and will require us to deal with them accordingly; the additional responsibility (currently vested in the Queensland Law Society (QLS)) to conduct trust account investigations (audits), and the related power and responsibility in appropriate circumstances to initiate external interventions in the business affairs of a law practice by appointing a supervisor of trust money, a manager or a receiver; a broader power to conduct compliance audits, by extending our current power to conduct a compliance audit of an incorporated legal practice to any law practice, whatever its business structure, provided we have reasonable grounds to do so based on the conduct of the law practice or one or more of its associates or a complaint against the law practice or one or more of its associates ; the additional and entirely new power provided we have reasonable grounds to do to so to give a law practice a management systems direction requiring it to implement appropriate management systems to ensure that it complies with its professional obligations; and the additional and entirely new power (subject to appeal) to make a finding that a lawyer has engaged in unsatisfactory professional conduct, and to caution or reprimand lawyers accordingly, or to impose conditions on their practising certificates, to order them to March

3 redo work subject to complaint, to reduce or waive their fees their fees or to pay a fine of up to $25,000. Furthermore and importantly the National Law will give us the power to compel lawyers to answer questions and produce documents and information notwithstanding any duty of confidentiality they may owe a client, but on the strict proviso that the client s legal professional privilege is preserved and that any information so obtained must remain confidential and can be used only for the purposes of the investigation and any subsequent disciplinary proceedings against the lawyer and for no other purpose. We are authorised currently to compel lawyers to answer questions and produce otherwise confidential documents and information but only if the client is the complainant or consents to its disclosure and thus we have only very limited powers to investigate a lawyer s conduct no matter how suspicious it may be if our suspicions are aroused by a complaint made by someone other than the lawyer s client or by information which comes to hand through the investigation of an unrelated matter or a trust account audit, for example, or via the police or other regulatory authority, a news report or an anonymous tip off. We are alone among our counterpart regulatory authorities elsewhere in Australia in having our powers of investigation constrained in this way. These are significant and welcome reforms. We will finalise how best to exercise our enhanced and additional powers and responsibilities and ensure a national uniformity of approach in discussion with our interstate counterparts and ultimately with the National Legal Services Commissioner. That will take time. We owe it to our local users of legal services and lawyers to take well considered proposals to the table, consistent with our sense of purpose and values. Similarly and whatever progress may or may not have been achieved towards national uniformity we owe it to them to have updated systems and processes ready to go from day one and of course to keep our eye on the ball in the interim. The challenge is not just to adapt our systems and processes but to make the structural and organisational changes that will be required. Importantly the Commission and the QLS have agreed subject to being able to negotiate satisfactory transitional arrangements that the QLS will relinquish its current monitoring and enforcement roles. We have agreed subject to this caveat that the Commission will assume sole regulatory authority in Queensland for receiving and dealing with complaints about solicitors, for conducting trust account investigations and related external interventions and for conducting compliance audits. This is an important reform also. The current arrangement under which we delegate complaints to the QLS for investigation necessarily involves inefficient and costly doublehandling, duplicate management systems and otherwise avoidable complexity and delay. The savings that will be achieved by consolidating the complaint handling, trust account and compliance auditing functions under the one management structure will be more than sufficient to fund our additional responsibilities to deal with costs disputes and the excess could be applied to give us some additional policy development capacity also. March

4 Furthermore complaint handling, trust account investigations and compliance audits are all investigative and intelligence gathering activities and complementary. Consolidating responsibility for all three functions under the one management structure will enable us to pool the information and resources at our disposal to better identify and target the lawyers and law practices most likely to put consumers and the public at risk and to direct our regulatory resource to where it is most needed and can have the most beneficial impact in the public interest. The transitional issues will require careful management. We are currently an organisation of just more than twenty full time equivalent people. We will grow and almost double in size as the functions, many if not all the people who perform them and the requisite funding transfer from the QLS to the Commission. There will be a lot of work to do to get the money and staffing numbers right, to settle remuneration and any associated redundancy arrangements, to review and adapt our organisational structure, to learn new skills and to find larger office accommodation. We will have to manage the transition well, preserving all that is best in our collegiate workplace culture. These are significant strategic challenges. We have set ourselves a series of goals against each of our core business functions (hence key result areas) that we believe will enable us to meet those challenges, and to exercise our current responsibilities in the interim to the standard users of legal services and lawyers are entitled to expect of us. We will assess and report our performance accordingly. KEY RESULT AREA 1: GIVING CONSUMERS AN INDEPENDENT, TIMELY, FAIR AND REASONABLE MEANS OF REDRESS FOR COMPLAINTS We will: produce information about the system for dealing with complaints and make it widely available to members of the public both in hard copy and on our website; give help to members of the public in making complaints; respond to 80% of inquiries within 1 working day of receipt and 100% within a median time frame of 2 working days; assess 90% of new complaints within 1 month of receipt and 95% within 2 months, with a median time frame of less than 2 weeks; finalise 90% of consumer disputes within 2 months of receipt and 100% within 6 months, with a median time frame of less than 1 month; achieve a clearance ratio of 100% or better over each reporting period; March

5 further develop our capacity to monitor trends in the complaints data and interrogate our database with a view to: o o identifying the lawyers and law practices most likely to be non compliant with their professional obligations and then planning and implementing appropriately targeted interventions (including by forwarding the lawyers and law firms risk alerts which put them on notice, initiating own motion investigations and conducting trust account and compliance audits as appropriate); and identifying systemic issues and business practices, and especially in the first instance billing practices which put consumers at risk and then planning and implementing appropriately targeted remedial strategies (including by publishing information for consumers and regulatory guides and conducting test cases and the like); systematically collect, review and assess feedback from people who make inquiries of us and from complainants and respondents; identify any shortcomings in our standards of service, systems and processes and make appropriate improvements; provide complainants and respondents a readily available means of making complaints about us and deal with any complaints in accordance with a clearly stated complaints about us policy and procedure; and plan and document the staffing arrangements, systems and processes we will require to exercise our recalibrated and additional powers under the National Law and to exercise them fairly, consistently, proportionately, accountably and transparently. KEY RESULT AREA 2: INVESTIGATING COMPLAINTS WHICH INVOLVE A DISCIPLINARY ISSUE OR CONTRAVENTION OF RELEVANT LEGISLATION Further to the commitments we have made in relation to Key Result Area 1, and pending the transfer of responsibilities which will see us accepting sole responsibility for dealing with complaints, we will: refer approximately 50% of conduct complaints involving solicitors to the QLS for investigation pursuant to an annual Service Level Agreement; unless there is a good reason otherwise in all the circumstances of a complaint, refer all conduct complaints involving barristers to the Bar Association of Queensland (BAQ) for investigation; finalise 90% of the complaints returned from the QLS and the BAQ after investigation within 1 month of return; finalise 75% of conduct complaints within 6 months of receipt and 95% within 18 months, with a median time frame of less than 6 months; March

6 monitor the number and percentage of matters in which we agree/disagree with the recommendations of the QLS and the BAQ; develop and document the systems and processes we believe we will require to responsibly exercise our new power under the National Law to make findings of unsatisfactory conduct, and to ensure that we make those decisions and related orders fairly, consistently, proportionately, accountably and transparently; and negotiate Memoranda of Understanding with the QLS and the BAQ under which we will share information, perspective and advice about issues of mutual interest arising out of our complaint handling role and our essentially co regulatory responsibilities for promoting appropriate standards of conduct in the provision of legal services. KEY RESULT AREA 3: INITIATING OWN MOTION INVESTIGATIONS INTO CONDUCT WE HAVE REASONABLE GROUNDS TO BELIEVE MAY INVOLVE A DISCIPLINARY ISSUE OR OTHER SIGNIFICANT WRONGDOING Further to the commitments we have made in relation to Key Result Areas 1 and 2, we will: share intelligence and further develop our capacity to interrogate our complaints and other data to better identify conduct that justifies initiating own motion investigations pursuant to our Own Motions Investigations policy, and conducting those investigations and commencing disciplinary or other enforcement action as appropriate; finalise 75% of own motion investigations within 6 months of initiating the investigation and 95% within 18 months, with a median time frame of less than 6 months; and monitor the number and outcomes of own motion compared to complaint driven investigations to help assess our pro activity and the reliability of our risk analyses. KEY RESULT AREA 4: SUPPORTING AND AS APPROPRIATE AUDITING LAW PRACTICES TO HELP THEM DEVELOP AND MAINTAIN APPROPRIATE MANAGEMENT AND SUPERVISORY SYSTEMS AND AN ETHICAL INFRASTRUCTURE We will: implement a program of compliance audits of varying intensity including self assessment audits, web based surveys and carefully targeted and more in depth, on site reviews of those ILPs we assess to be at risk of non compliance with their professional obligations; March

7 systematically collect, review and assess the feedback we receive from incorporated legal practices that have completed compliance audits about the effectiveness of the process, identify any shortcomings and make appropriate improvements; monitor and analyse the audit data to help identify systemic issues, and to plan and implement remedial strategies (including targeted legal education strategies and the publication of relevant information and regulatory guides); monitor and analyse the audit, trust account investigation and complaints data to identify the law practices most likely to benefit from management systems improvements and to help plan and implement appropriate remedial strategies (including for example sending risk alert notices or conducting web based surveys or on site reviews); assess the effectiveness of compliance audits in promoting high standards of conduct in the delivery services by monitoring the complaints and other risk data at our disposal (including the longitudinal data) to compare the performance of incorporated and unincorporated legal practices, and the performance of incorporated legal practices before and after becoming subject to the compliance audit regime; develop and document the systems and processes we believe we will require to responsibly exercise our new power under the National Law to conduct compliance audits of all law firms and to issue management systems directions, and to ensure that power fairly, consistently, proportionately, accountably and transparently; and plan and document the staffing arrangements, systems and processes we will require to manage the transition and then to exercise the responsibility that will transfer from the QLS to us to conduct trust account investigations and to intervene in the business and professional affairs of law practices as appropriate. KEY RESULT AREA 5: INITIATING DISCIPLINARY AND OTHER ENFORCEMENT ACTION WHEN IT IS JUSTIFIED BY THE EVIDENCE AFTER INVESTIGATION AND IN THE PUBLIC INTEREST We will: file and serve 80% of discipline (or other) applications within 1 month and 100% within 2 months of deciding to initiate disciplinary (or other enforcement) proceedings, within a median time frame of less than 1 month; promptly update the discipline register following a finding by a disciplinary body of professional misconduct, and promptly publish on our website every decision of the disciplinary bodies and other regulatory decisions that are relevant to our work; monitor and analyse the prosecutions data (including the number, nature and percentage of discipline applications and / or disciplinary charges that are dismissed) to March

8 identify any shortcomings in our systems and processes and make appropriate improvements; initiate civil litigation in the public interest whenever appropriate, including by seeking declarations to clarify the meaning and/or application of legislation relevant to our work and applying for injunctions to restrain lawyers and others who may be putting users of legal services at risk. KEY RESULT AREA 6: ENGAGING WITH LAWYERS AND CONSUMERS, PUBLISHING INFORMATION AND UNDERTAKING SELECTED PROJECTS AND RESEARCH TO HELP DRIVE IMPROVEMENTS IN THE PROVISION OF LEGAL SERVICES We will: publish and make readily available a wide range of plain English documents describing the system for dealing with complaints and our regulatory responsibilities more broadly, our approach, our priorities and key issues; develop and implement a Communications Plan which makes that information more accessible and widely available, including by making more effective use of our website and publishing e newsletters to targeted audiences; consult widely with lawyers and their professional bodies and with users of legal services to develop and publish a series of Regulatory Guides which describe for the benefit of lawyers and users of legal services alike how we believe the high level principles that govern a lawyer s professional obligations apply in grey areas where the application of the principles to particular fact situations may be uncertain and the factors we will take into account in exercising our responsibilities in relation to a lawyer s or law practice s conduct in those circumstances; contribute speakers to, deliver papers to and otherwise support undergraduate and continuing legal education programs and professional conferences and the like relevant to our work, targeting key audiences (including final year law students and solicitors who are applying to be given principal level practising certificates); conduct at least two symposia annually in the Lawyers, Clients and the Business of Law series of symposia we co host with Griffith Law School, including one in a regional city; undertake and facilitate, broker and partner the professional bodies, law schools and others in undertaking practical projects and research that will inform our work and help promote high standards of conduct in the provision of legal services; and contribute to the development of legislative, policy and regulatory reforms and practices relevant to our work. March

9 KEY RESULT AREA 7: CREATING AND MAINTAINING A PRODUCTIVE, MOTIVATING AND PROFESSIONAL WORK ENVIRONMENT We will: preserve our current respectful, open and collegiate workplace culture, including through the transition to and following commencement of the National Law; review our Investigations and Prosecutions Manuals and other like manuals to refine and further develop our systems and processes; review and refine our Knowledge Plan to improve the way we update, share and apply our collective skills and experience (including by providing relevant and regular in house continuing legal education events and otherwise ensuring that our lawyers comply with or exceed the continuing professional development requirements expected of lawyers in private practice, and regularly updating the Commission s intranet with legal and regulatory developments and resources relevant to our work); further improve the capacity of our database to support us in our work, and in particular to enable us to interrogate our data to generate risk alerts and other reports and crossreferenced information which identify the lawyers and law practices most likely to be non compliant with their professional obligations and systemic issues; enhance https://www.lpportal.org.au to enable not only incorporated legal practices but all law practices to access complaints and other risk data relevant to their practice, and to enable lawyers, law practices, legal academics and members of the public alike to access and interrogate the (de identified) complaints and other regulatory data; further improve https://www.lpportal.org.au to not only push more and better information out, but to pull more and better information in (including various statutory notices and external examination reports, for example) and to enhance its interactive capabilities (by enabling us for example to increasingly manage and process complaints, trust account investigations and compliance audits on line); complete a systematic review of, identify any shortcomings in and make and document any necessary improvements to our own compliance systems, processes and performance (in relation to our obligations under the Right to Information, Privacy and Public Records Acts, for example); monitor and continually improve our business systems, processes and practices; negotiate the transfer of resources from the QLS accordingly and plan the funding, staffing, organisational, office accommodation and other arrangements that will be required to enable us to successfully absorb the functions that will transfer our way and to exercise our enhanced and additional responsibilities under the National Law and to do it fully and effectively from day one and to do it well; and strengthen our governance arrangements, including by finding ways to better capitalise on the wealth of knowledge and experience we have available to us through the March

10 Reference Group and by establishing a management team which meets regularly to monitor the implementation of this strategic and performance plan. March

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