Summary of the 2009 Debt Collection Round Table convened by the Legal Services Commissioner of Victoria

Transcription

1 Summary of the 2009 Debt Collection 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 Debt collection as an area of concern Page 2 Findings of complaints Page 2 The round table Page 3 Participants Page 4 Areas of concern identifi ed Page 5 Letters of demand Page 5 Creditors and collection agencies using lawyers letterhead Page 6 Pursuing statute-barred debts Page 6 Communication practices with clients and debtors Page 7 Lawyers not using services of community support agencies Page 8 Other issues raised Page 9 Conclusion Page 10 Outcomes Page 10 Other resources available Page 11 Appendix 1 - Statistics on debt collection complaints Page 12 Appendix 2 - Key defi nitions Page 14

4 ACKNOWLEDGMENTS The Legal Services Commissioner of Victoria, Ms Victoria Marles, would like to thank the representatives from participating organisations who generously gave up their time to participate in the debt collection round table forum. The Commissioner acknowledges the invaluable advice and input participants provided on the issue of complaints and debt collection issues. Page 1

5 INTRODUCTION The Legal Services Commissioner (the Commissioner) was established on 12 December 2005 to be the single gateway for the receipt and handling of complaints about lawyers in the state of Victoria. Each year the Commissioner receives approximately 2,000 formal complaints about lawyers, involving many different areas of law. Under the Legal Profession Act 2004, the Commissioner has a statutory responsibility to educate both the legal profession and consumers of legal services about relevant issues of concern. To help identify those issues, the Commissioner regularly monitors complaints data for emerging trends or changes in the profi le of complaints. Debt collection - a persistent area of concern One area of law which consistently attracts a high number of complaints is debt collection. In just over three years from the opening of the offi ce until 31 December 2008, the Commissioner had received a total of 306 complaints where debt collection was identifi ed as the relevant area of law. Complaints may contain one or more allegations against a lawyer. The most common allegations made about lawyers in the area of debt collection include: overcharging a client for debt collection services negligence in handling a fi le (for example, failing to undertake work to pursue a debt or to lodge a form) being dishonest and/or misleading (for example providing misleading information in a letter of demand) failing to return calls being abusive and/or rude. Findings of complaints If, after investigating a complaint, the Commissioner believes that the subject lawyer is guilty of unsatisfactory professional conduct the Commissioner may, and in the case of professional misconduct must, bring charges before the Victorian Civil and Administrative Tribunal (the Tribunal). Page 2

6 However, despite the number of complaints received about debt collection, there have been no complaints where the Commissioner was satisfi ed that there was a reasonable likelihood that the Tribunal would fi nd the lawyer guilty of professional misconduct, and only nine complaints where the Commissioner formed the belief that a fi nding of unsatisfactory professional conduct would be reached. The Round Table The Commissioner has discussed the issue of poor debt collection practices with a range of consumer support agencies. Concerns raised by these agencies highlighted the impact of ongoing economic instability on consumers and a measurable increase in the number of consumers who are unable to pay their debts. These agencies also identifi ed a corresponding increase in the use of debt collection services by creditors. As lawyers are often involved in the collection of outstanding debts, the Commissioner recognised that an increase in complaints about debt collection practices has the potential to lead to an increase in complaints about lawyers. On Friday 8 May 2009, the Commissioner convened a round table discussion forum involving a range of organisations which shared concerns about debt collection practices. Representatives were invited from state and federal regulatory agencies, consumer legal advocacy organisations, community support agencies and lawyers professional associations. The objective of the round table was to understand the concerns of consumers and regulators, determine the extent of the involvement of lawyers in poor debt collection practices, and identify ways of improving those practices for the benefi t of consumers and the legal profession. The issues raised at the forum and the potential means to address them are detailed in this document. Page 3

7 PARTICIPANTS The following organisations were represented at the round table forum: Federal and state government regulators of the debt collection industry Australian Competition and Consumer Commission (ACCC) Australian Securities and Investments Commission (ASIC) Consumer Affairs Victoria (CAV) Consumer advocate organisations established to provide legal support and information for consumers Victoria Legal Aid (VLA) Consumer Action Law Centre (CALC) Public Interest Law Clearing House (PILCH) Community support organisations Financial and Consumer Rights Council (FCRC) Broadmeadows Uniting Care, Connections Financial Counselling Service, UnitingCare Australia Legal Profession bodies Law Institute of Victoria Victorian Bar Legal Practitioners Liability Committee Page 4

8 AREAS OF CONCERN IDENTIFIED During the course of the round table several key areas of concern emerged in the discussions. Each of these areas is described below. The Commissioner also identifi ed a number of strategic initiatives aimed at addressing the most prevalent concerns regarding lawyers involvement in debt collection practices. These initiatives, which focus on providing information to lawyers and consumers, are also detailed below. Letters of demand One of the most signifi cant issues raised in the discussions involved the content of the initial letter of demand sent to a debtor. Consumer advocates, support groups and the regulators all expressed concern about the practice of a lawyer including his or her legal costs in the letter of demand, so that the total claimed includes both the amount of the original debt and legal costs. They contended that this practice causes confusion among consumers and may mislead consumers into paying more than they are liable to pay. Misleading information in a letter from a lawyer may be in breach of the Legal Profession Act 2004, and may also be contrary to the Fair Trading Act However consumers would not necessarily know the legitimacy of the demand and may end up being intimidated into paying the full amount. It emerged that this issue was often raised by consumers with community support organisations. However the consumers are not necessarily referred on to the Legal Services Commissioner to make a formal complaint. The true scope of the problem may therefore be larger than the Commissioner s complaint fi gures reveal. The Commissioner encouraged other organisations to refer their clients on to her offi ce when letters of demand from lawyers appear to contain misleading directions. To address this issue, the Commissioner identifi ed an opportunity to support the ACCC, ASIC and CAV in communicating with both the legal profession and consumers. Information about acceptable debt collection practices, best practice guidelines for debt collection, lawyers conduct rules and relevant legislation will be promoted through the Commissioner s education programs and website. Page 5

9 Creditors and collection agencies using lawyers letterhead Another concern raised involved the use of a lawyer s letterhead by creditors and debt recovery agencies when communicating with a debtor. In some instances lawyers are engaged by a debt collection agency or creditor to send the letter of demand to the debtor, when that letter could have been sent by the collection agency or creditor themselves. In some cases concerns were raised that lawyers were simply providing their letterheads to debt collection agencies. This practice was seen by many participants as an attempt to strong-arm the recipient of the letter by implying legal involvement and a threat of further legal action unless the alleged debt was paid. Often this is the only involvement of the lawyer in the debt collection matter, and no further instructions are given by the collection agency or creditor. This may confuse the debtor as it is not clear which organisation is actually handling the debt. Contacting the lawyer may not necessarily lead the debtor to the collection agency. It was also raised that calls were often referred around from person to person within fi rms and collection agencies, creating stress and confusion for the debtor. Again, the need for increased awareness of and access to acceptable debt collection practice guidelines was identifi ed. Pursuing statute-barred debts Statute-barred debts are those debts which have expired, either through the lapse of a specifi c timeframe for repayment, or because the debtor has been declared bankrupt. Regulatory bodies and community support agencies regularly receive reports from consumers about debt collectors pursuing statute-barred debts. This may indicate either a lack of understanding on behalf of the collector as to the limitations on collecting those debts or, on the part of less scrupulous operators, a deliberate ploy to trick the debtor into paying money that cannot legally be claimed. It was acknowledged that this issue does not involve large numbers of lawyers. However concern was expressed that younger lawyers tended to be less aware of the limitations for pursuit of statute-barred debts, especially after a bankruptcy is discharged. Page 6

10 The education of younger lawyers in insolvency was identifi ed as an area where further work needs to be undertaken. Further concerns were raised about lawyers who fi le bankruptcy petitions against debtors if the debtor is not able to repay any money. It was suggested that bankruptcy was seen by some lawyers as a tool for punishing debtors when repayments could not be made. This practice arguably results in increased penalties for the debtor for no extra benefi t to the client. In such scenarios some argue that the lawyer and the trustees in bankruptcy are the only ones to benefi t from a bankruptcy through the fees they charge. The Commissioner agreed that there was a need for a greater understanding among the legal profession of the limitations applied to statute-barred debts and the capacity of seeking debts after bankruptcy. Further, information provided to new lawyers through pre-admission programs and to existing lawyers through providers of continuing professional development courses was identifi ed as important to address these issues. Communication practices with clients and debtors Poor communication is a common complaint made to the Commissioner about lawyers in debt collection matters. It is also a signifi cant feature of complaints made to other regulators and the support organisations involved in the round table. Common issues found by participants included: failing to return telephone calls of clients or debtors not acknowledging a support agency s authority to act on behalf of the debtor and continuing to contact the debtor refusing to explore alternative payment options for debtors, preferring to demand the complete payment in one lump sum as opposed to repayment plans not acknowledging queries or clarifi cation of information from debtors, including information about liability of the debt failing to provide further information about the debt when requested. Page 7

11 Consumer agencies observed that in many instances the debt collection processes seemed to have been designed to be extremely diffi cult for the debtor, resulting in many debtors either running out of time to query or dispute the debt, or simply giving in and paying the amount claimed. The ACCC and ASIC guidelines on debt collection practices make it clear that when a debtor requests further information about a debt the collection agency is required to respond. The debt cannot be pursued until the query is answered. However by hindering the debtor in his or her attempts at reaching the correct person handling the matter, the time periods for disputing the debt are decreased. The Commissioner acknowledged that all lawyers must be cognisant of ACCC, ASIC and CAV guidelines in relation to debt collection. Therefore, these guidelines and lawyers conduct rules need to be readily accessible to lawyers. Lawyers not using services of community support agencies Concerns were also raised over the practice of lawyers undertaking tasks which did not require legal expertise, and then billing the client for that work. Often these tasks could be undertaken free of charge by consumer support organisations. Examples include providing fi nancial information on bankruptcy and completing bankruptcy forms. This raises the issue of clients not being aware of community support services available, and lawyers not advising their clients of the alternatives to legal assistance through specialised support services, such as fi nancial counselling or specialist health services. It was acknowledged that there is a general lack of awareness among lawyers about alternative support services available to clients. The Commissioner recognised the value in providing links to other regulators and support agencies on the Commissioner s website, and working with the professional associations in promoting an increased awareness of community-based support services. Page 8

12 Other issues raised Other issues were also raised in the discussions which generally related more to debt collection agencies than to lawyers or law fi rms acting as debt collection agents. The issues include: the sale of debts between collection agencies, leading to diffi culties for debtors seeking information about or paying a debt; the issuing of court proceedings in different states from the debtor and the often poor level of information about rights provided to the debtor; and the attempted exploitation of the differences in laws between states to access laws more benefi cial to the collector (for example, garnishee provisions). While these issues may not at present involve lawyers in any signifi cant manner, the Commissioner considered that there was the potential for them to become an increasing concern for lawyers in the future, especially for law fi rms which practice in more than one state jurisdiction. Page 9

13 Conclusion The Legal Services Commissioner convened the debt collection round table to develop a greater understanding of the concerns held by consumers of legal services and debt collection industry regulators, and to identify the extent to which Victorian lawyers were involved in any practices of concern. From the background research and discussions held at the round table, it can be said that the majority of Victorian lawyers handle debt collection matters with high levels of professionalism. There is, however, a small number of lawyers that undertake questionable business practices. The ultimate aim of the Legal Services Commissioner is to help improve the quality of legal services for all consumers of legal services. The following initiatives should go someway to addressing the issues raised at the debt collection round table. Outcomes The Commissioner has committed to the following activities raised at the debt collection round table: distribute this document to a number of interested agencies including law associations to help raise awareness of consumer concerns with the debt collection industry; work to improve the level of awareness and understanding of debt collection concerns among both consumers and the legal profession through developing education material, providing improved access to relevant information for lawyers, and continuing the dialogue with all involved parties; seek to engage specialist debt recovery law fi rms to highlight the key concerns of consumers in inter-jurisdictional debt collection matters, and promote the acceptable debt collection practice guidelines among those fi rms. Page 10

14 OTHER RESOURCES AVAILABLE The ACCC, ASIC and CAV have further resources available for creditors and consumers. These include: Debt collection guideline: for collectors and creditors These guidelines were produced jointly by the ACCC and ASIC in 2005 and describe how relevant provisions of the Trade Practices Act 1974 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) apply to debt collection conduct. Debt collection practices in Australia Also produced by ACC and ASIC, this document highlights the key issues identifi ed during an evaluation of debt collection practices undertaken by both agencies in It is available from the following Internet address: Guidelines for debt collection: Debt collection and the Fair Trading Act 1999 Published by CAV, this document promotes acceptable debt collection practices under Victorian legislation. The document is available from the CAV website at the following address: &1=80-Credit+%26+Debt~&2=~&3=~ Page 11

15 APPENDIX 1 Statistics on debt collection complaints The below information provides an overview of complaints received by the Legal Services Commissioner between the period of 12 December 2005 and 31 December 2008 which involved the issue of debt collection. How many complaints were received about debt collection? In the three-year period from 12 December 2005 to 31 December 2008 the Commissioner received 6326 complaints about practitioners. Of these, 306 (or 5%) were made about lawyers in relation to debt collection. What allegations do people make in complaints? In the 306 complaints received, the top fi ve allegations made were: Allegation made No. times allegation featured in complaints* % complaints featuring the allegation Professional conduct (including abusiveness, % rudeness, dishonesty and/or intimidation) Costs/Bills predominantly overcharging 93 30% Poor service (including negligence and delay 76 25% Money (including trust monies) 45 15% Communication (including failure to correspond, failure to provide information on costs) 44 14% *The number of allegations far exceeds the total number of complaints made as a complaint will often include a number of different allegations. What did people complain about? Disciplinary complaints: Practitioner was negligent. Practitioner was dishonest and/or misleading. Practitioner failed to correspond with complainant. Practitioner failed to return calls. Practitioner was abusive and/or rude. Civil complaints: Practitioner overcharged for services. Page 12

16 Statistics on debt collection complaints (continued) What were the outcomes of the complaints? 249 (81%) of the 306 complaints about debt collection have been closed. Of the 249 complaints closed: 152 complaints were summarily dismissed. Of the complaints summarily dismissed: were disciplinary complaints - 21 were civil complaints. - 9 were mixed complaints. 47 complaints were investigated and no conduct issues were found. 16 complaints were withdrawn by the complainants. 15 civil complaints were settled. 10 complaints resulted in both parties being advised to apply to the Tribunal to settle the dispute. (Parties are advised to apply to the Tribunal when the Commissioner is unable to settle the dispute through mediation or other means of dispute resolution). 9 complaints resulted in the Commissioner believing there was a reasonable likelihood the Tribunal would fi nd the practitioner guilty of unsatisfactory professional conduct. However due to the circumstances of these matters the Commissioner opted to use her alternative disciplinary powers to: - reprimand the practitioner (4) - issue a caution (1) - order compensation to be paid without laying charges(1) - take no further action as the practitioner was otherwise competent (3). There were no complaints where the Commissioner believed there was a reasonable likelihood the Tribunal would fi nd the practitioner guilty of professional misconduct. Page 13

17 APPENDIX 2 Key Definitions Caution: following an investigation, where the Commissioner forms the view that there is a reasonable likelihood that the Tribunal would fi nd 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 fi nd 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 fi nd the practitioner guilty of unsatisfactory professional conduct the Commissioner may take no further action against the practitioner if satisfi ed that the practitioner is generally competent and diligent and there has been no substantiated complaint about the conduct of the practitioner within the last fi ve years. Page 14

18 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 fi nding that the practitioner is not a fi t 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 fi nd 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 15

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