Our earlier story about dodgy lawyers in Western Australia has sparked this letter and a subsequent considered but controversial article about whether lawyers are really capable of self-regulation.

In my view also, Mr Quigley’s attack on the Board’s findings are also unprofessional. This includes his personal attacks against members and counsel assisting where the imputation is that they were prejudiced against him because of his politics. Just because people have particular political views does not mean that they cannot do their jobs properly.

Similarly I don’t think that it will assure that people do make a good fist of things either. Although I don’t think that Clare Thompson handled her latest public statements well I do not think that had anything to do with her political views.

The “connection” raised might be relevant to some other issue and it could be raised when it is relevant.

I am not sure how much inquiry actually goes into your opinion pieces but you may care to enquire of the Legal Practice Board to confirm:

1. that All Queen’s (and Senior) Counsel are ex officio members of the Legal Practice Board;

2. that Eric Heenan is now a Supreme Court Justice;

3. whether a lawyer named Grubb was charged with unprofessional conduct relating to his role in acting for his father’s broking business (I understand that he might have been: but I can’t find a public record of it in my brief search).

Personally I regard the decline in professional standards as a major concern. This is in quality of service and ethics and professionality. I hate that lawyers are made the easy target for in many cases merely complying with their duties and instructions. The public forget that clients are often greedy and irrational!

Well I’ve said my bit.

Keep up the good work!

Regards, Geoff”

Crikey’s legal expert Barnie Barrister has filed this considered response to Geoff’s letter:

Legal eagle Geoff’s response to the article about the Western Australian legal profession supervisory bodies raises the relevance of identifying political affiliations. What the writer seems to be asserting is that politics in the legal fraternity do not make it political.

To suggest that politics do not play a big part within the legal profession is to ignore reality. It begins at the very top. Is it to be seriously argued that High Court Justice Mary Gaudron would have been appointed by a Liberal Government? Would Justice Ian Callinan have been appointed by a Labor Government? Would John Howard have appointed Justice Kirby? Would a Liberal Government have appointed the late Lionel Murphy to the High Court? Of course the answer is no in each case.

This is not the occasion to even begin to provide a definitive list of political appointments to the judiciary, however Neville Wran’s appointment of retired Federal Labor Ministers, Kep Enderby to the Supreme Court of New South Wales and James McClelland to the Land and Environment Court of New South Wales were clearly political. That of course is not to say that both members were not admirably suitable appointees and did not discharge their duties with distinction. The political inclinations or affiliations of judicial appointees are a matter of interest to the public and invariably they are reported as they should be.

This also applies to lawyers who are appointed to Government boards and tribunals. The public are entitled to know of their political affiliation, particularly of senior officers of political parties.

Recently Crikey reported that Mr Ron Birmingham QC was appointed to the Western Australian Land Tax Appeal Tribunal by the Court Government replacing a Labor appointee. Mr Birmingham received payments of $96,000 in 2001 alone. He received a further $19,600 a year to chair the State Centenary of Federation Committee.

As the WA representative on the Centenary of Federation National Council Mr Birmingham received a further $445 a day sitting fee to attend meetings in Canberra, Melbourne and Sydney to cover travelling time. Mr Birmingham was the Senior Vice President of the WA Liberal Party at the time of his appointments.

Birmingham who no doubt discharged his duties with impartiality and competence, claims his appointment was not political, however he most certainly would not have been appointed had the Labor Party been in office. The Opposition spokesman on accountability at the time, and now Deputy Premier, Eric Ripper called on Premier Court to reveal the total amount paid to Mr Birmingham in his Government posts. “Don’t Liberal Party QCs earn enough already without adding perks at the expense of taxpayers,” Mr Ripper said.

Mr Ian Warner, a Consultant to the Perth law firm Jackson McDonald was appointed by the Court Government in 1994 to Western Power at an annual remuneration of $35,000. Mr Warner is personally close to the Court family and is the Finance Chairman of the Western Australian Liberal Party. Mr Warner is well regarded and no doubt he discharged his duties with Western Power with integrity and competence, however the Labor Government did not reappoint him when his term was due for renewal. They saw his appointment as a political one. No doubt Mr Birmingham will suffer the same fate. That is the normal way with which these appointments are dealt. Party member appointees go when the Government goes.

Contrary to the view of legal eagle Geoff, it is relevant to report that the Western Australian Law Society President, Clare Thompson, is a former unsuccessful Liberal Senate candidate. In her latest contribution to the legal debate, Ms Thompson has argued against the Western Australian ‘mandatory sentencing three strikes laws’ and in that situation her political views are of interest.

Ms Thompson was supporting the views of the President of the Children’s Court who had spoken out against the legislation. Ms Thompson was speaking as President of the Law Society, however as a Liberal “moderate”, the views she expressed were in keeping with her own. Ms Thompson’s views may have seemed less political had she reminded the Judge of the fundamental principle of the separation of powers.

I do however agree with legal eagle Geoff that Ms Thompson’s other recent public statements have not been influenced by politics but have just been stupid. In her latest public utterance, Ms Thompson in an apparent defence of the failure of the Legal Practice Board to investigate some of the more bizarre happenings in the profession in Western Australia, said that the Legal Practice Board needed the power to launch an investigation without receiving a complaint.

That is all very odd because under Sec 25 of the Legal Practitioners Act, power is explicitly given for the Legal Practitioners Complaints Committee to inquire into any conduct on the part of a practitioner; or matters relating to the practice of the law, whether a complaint has been received or not. Perhaps that is the problem. No one has told the Law Society or the disciplinary bodies that they can go get ’em without being instructed.

Ms Thompson however is right onto those legal fiends who belong to her Society and dob on their colleagues. Clare was most put out that the media were treated to an avalanche of stories about the manner and conduct on the bench of the now infamous ex-Magistrate, Bennett-Borlase. Ms Bennett-Borlase was notorious for her extreme rudeness and off hand treatment of those before her, not the least, lawyers. No longer having to put up with it, obviously a whole raft of victims were squaring up.

In the latest addition of the Law Society’s journal, “Brief”, Ms Thompson informs her wayward colleagues that “there are proper means for voicing these types of concerns. I do not believe that it is appropriate for anonymous gossip to be repeated in the way it was.- particularly given the strong stance the profession took on the recent criticism of Justice Kirby. The integrity of the Courts and the legal system is in no way enhanced by the repetition of anonymous gossip as happened in this instance.”

Ms Thompson’s response to Magistrate Bennett-Borlase deceiving the Attorney General and sitting on the bench for three years past her mandatory retiring age and collecting $500,000 in extra salary, was to call for the retirement age of Magistrates to be extended. As for the comparison between Justice Kirby and Ms Bennett-Borlase; you just have to wonder!

Ms Thompson has also had something to say in “Brief” about another person of interest to Crikey; conman and gaol bird, Ahmad Ali Rida, alias Andrew Levy who set up a legal practice in Perth and purported to be a lawyer. Ms Thompson reminds her colleagues that “one of the distinctive features of the legal profession is that of self regulation, however this brings with it a responsibility.” Members are instructed to watch out for other impersonators.

In spite of the enormous cost the inadequacies of the profession’s monitoring system inflicted on the public by Levy going undetected, Ms Thompson reminds us all that she has her priorities right. “It is after all” she beseeches her colleagues, “your livelihood and reputation which is (sic) at stake when cases like this occur.” One wonders how many lawyers were left out of pocket when Levy skipped with his trust money and countless botched cases.

Curiously, in response to what appears to be another looming crisis for the legal fraternity in Western Australia, Ken Martin QC stepped into the breach as spokesman for the Society. Could it be that Ms Thompson has been gagged? It has been reported that investors who lost money in the mortgage brokers scandal are planning dozens of damages claims against legal firms involved in drawing up documents for the mortgage investments involved.

Turning to the Legal Practitioners Disciplinary Tribunal and the Quigley matter; from the outset it should be clear that what in large part makes the Quigley matter remarkable, is the vigour and energy with which it was pursued.

In essence, Quigley’s sin was that he accused the Premier of a cover up when in fact his claim should have been directed towards the manner and process of the inquiry that the Premier set up.

Mr Quigley unsuccessfully objected to two members of the Disciplinary Tribunal because of what he saw as perceived bias. One is a partner of Freehills who were engaged by the Liberal Party against Quigley who was a Labor candidate, in a matter which arose during the last State election campaign.

The strenuous endeavour to bring Quigley to book appears in clear contrast with another recently publicised case. It appears that no action has been initiated against former Magistrate Bennett-Borlase who sat as a Magistrate for three years beyond her compulsory statutory retirement age of sixty five years of age. This conduct was only possible because Ms Bennett-Borlase had claimed in writing when applying for the position that she was three years younger than her true age.

One would have thought that to have sat in judgement upon cases for one day, never mind three years, without authority might have been viewed unfavourably by the Legal Practitioners Complaints Committee, even perhaps as unprofessional conduct. No doubt there are now people in gaol who are pondering what might have been. Ms Bennett-Borlase would still be sitting on the bench had she not been dobbed in.

Ms Bennett-Bolase’s very appointment invites speculation of political involvement. In a remarkable first for the bench in Western Australia, Ms Bennett-Borlase was appointed within four years of her admission to practice law. What outstanding qualities she was able to demonstrate ahead of all other applicants, save for her gender and political inclination, is not clear.

The Skerritt case has been well ventilated on Crikey. What confidence can the public have in a system that allows Skerritt to continue to pursue his legal career?

As previously referred to, investors who lost money in the mortgage brokers scandal are planning dozens of damages claims against legal firms involved in drawing up documents for the mortgage investments involved. How many of these are being investigated by the Legal Practitioners Complaints Committee at this moment? My guess is none.

The Annual Report of the Legal Practitioners Complaints Committee for 2000-2001 reveals that the Committee received 1944 complaints during the year. Of these 37 were investigated and 20 resulted in penalties.

Obviously the public of Western Australia is a mischievous and troublesome lot, unreasonably demanding, unappreciative of good lawyers and do not understand the difference between right and wrong.

The problem with the disciplinary bodies which supervise the conduct and behaviour of lawyers is their incestuous and unaccountable nature. Self regulating disciplinary bodies comprised of members charged with sitting in judgement upon their colleagues are anachronistic, self serving and fail any reasonable test of public interest.

To imagine for instance that a Chairman of the Legal Practitioners Complaints Committee can share chambers and mix professionally and socially as is inevitably in those circumstances, with his colleagues and then sit in judgement on them with without a clear perception of bias, is palpable nonsense.

To believe that a barrister chairing such a tribunal and who may rely on major firms for his or her briefs, can sit in judgment on a member from such a firm without creating the prospect of perceived bias is equally absurd. The very notion of lawyers dealing with each others’ alleged misbehaviour in such a tight knit profession particularly in the less populous States where almost all lawyers know each other and where all the senior members of the profession are very well known to each other, should be inconceivable.

Crikey does not suggest the slightest impropriety on any of these tribunals and committees, however the longer the legal profession blithely ignores the standards of transparency, openness, perceived impartiality and accountability that contemporary society expects and demands of tribunals in dealing with complaints about their own members, the more they invite the view of a profession with apparent arrogant disregard for interests other than their own.

Lawyers seem to be the only members of the community who are not aware that the public has lost faith in their complaints and disciplinary process. The fact that it took a long campaign by the media to finally shame the leaders of the profession into dealing with its senior members who practice the art of avoiding paying taxes by bankruptcy, stands as a beacon to external scrutiny and discipline.

It is of very considerable credit to WA Attorney General Jim McGinty that he understands these problems and that he proposes to establish a mechanism which will address the anachronistic and archaic system now so discredited.

Legal eagle Geoff has three points at the bottom of his letter which do not seem to be relevant.

All Queen’s Counsel are members of the Legal Practice Board but of course they do not all sit on the Disciplinary Tribunal. The Chairman of the Legal Practitioners Complaints Committee at the time the Committee decided to pursue Quigley, was not Eric Heenan QC, but rather Chris Pullen QC.

Peter Fray

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