From failure to hope? Lawyer regulation in South Australia

Kellie Toole and Suzanne Le Mire
South Australia

Lawyer regulation in Australia is a fraught area. Several attempts to achieve uniformity and national regulation have failed, but two significant events have shaped recent legislative reforms in South Australia.

The death of cyclist, Ian Humphreys, in a ‘hit and run’ provoked 10 years of media and political criticism of the police and the legal profession. In 2003, lawyer and former police prosecutor, Eugene McGee, was driving home to Adelaide from a hotel near Gawler, and collided with Humphrey who died from the impact. McGee left the scene, was assisted by his brother, and telephoned a Queen’s Counsel friend.

That evening McGee’s lawyer contacted police, who arrived after a considerable delay. The police did not administer a breath test because of the time lapse between the incident and the arrest.

In 2005, McGee was acquitted of causing death by dangerous driving, and convicted of lesser traffic offences. His defence was based on psychiatric evidence of ‘dissociation’ after the accident due to post-traumatic stress disorder from experiences as a police officer and lawyer. He was fined and disqualified from driving for twelve months.

After a 2005 Royal Commission, both brothers were acquitted in 2010 on the basis that McGee was not required to hand himself in to police. The acquittal resulted in an unsuccessful attempt in 2011 to prevent McGee from practising law. The Legal Practitioners Conduct Board was bound by the Legal Practitioners Act 1981 which defined ‘unprofessional conduct’ as an offence of a dishonest or infamous nature punishable by imprisonment; or conduct relating to the practice of law involving failure to meet the standards observed by competent practitioners of good repute. McGee’s conduct was outside the definition but the decision fuelled more public outrage.

The second incident occurred in 2005 when $4.5m went missing from the trust account of Adelaide law firm, Magarey Farlam. The firm collapsed and a non-lawyer employee was convicted of fraud and deception. Almost 300 clients either lost money, or were unable to access their money when the trust account was frozen.

There was a guarantee fund to compensate for loss suffered due to a fiduciary or professional default where there was no reasonable prospect of recovering the money. However, no one could access the fund until all other avenues were explored, and those avenues involved expensive, lengthy legal proceedings.

Parliament responded to the cases by passing the Legal Practitioners (Miscellaneous) Amendment Bill 2013. The existing categories of ‘unsatisfactory’ and ‘unprofessional conduct’ were replaced with the broader categories of ‘unsatisfactory professional conduct’ and ‘professional misconduct’ that include conduct occurring outside the practice of law, that means the practitioner is not a fit and proper person to practise. A case like McGee would now be assessed by criteria better reflecting community standards.

The changes in protection for people suffering losses due to legal misfeasance are perhaps less successful. They enable interim payments from a Fidelity Fund while people pursue other options for recovering money, or if there is no prospect for recovering money through reasonable means. However, the victims must still pursue the wrongdoer.

The new Act also creates a Legal Practice Conduct Commissioner and abolishes the Legal Practitioners Conduct board. The Legal Practitioners Disciplinary Tribunal remains, but in a welcome move, the Tribunal will have non-lawyer members, as well as legal practitioner members.

KELLIE TOOLE and SUZANNE Le MIRE both teach law at the University of Adelaide.

(2014) 39(1) AltLJ 63
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