Older, male lawyers working outside of major urban areas are the most likely to face a formal complaint, despite women comprising half of the legal workforce, a landmark study has found.
In the first comprehensive study of risk factors for complaints against legal practitioners, researchers examined 20,090 lawyers aged between 26 and 65 years registered to practice law in Victoria in the decade to June 2015. They also obtained all disciplinary complaints lodged with the Legal Services Board and Commissioner (LSBC) in the same period, finding 15,887 complaints made against 4,180 lawyers.
The research was led by Associate Prof Marie Bismark, a researcher with the University of Melbourne’s school of population and global health. It is the first study in Australia to compare the characteristics of complained-about lawyers with the entire legal workforce.
The researchers excluded lawyers who were younger than 26 years or older than 65, barristers, and lawyers who practiced interstate or overseas or who did not have a current practising certificate. The age restrictions were imposed because lawyers under the age of 26 years are often still supervised, while those over 65 generally work fewer hours, reducing their exposure to complaint risk. Barristers were excluded because they are not instructed directly by clients.
Over two-thirds of complaints – 69% – involved men, the study found. Nearly half the complaints involved lawyers with trust account authority. Clients or members of the public lodged 91% of complaints and 7% were lodged by lawyers’ peers. The LSBC itself was the source of 2% of complaints.
The study also found three complaint issues featured heavily: the cost of legal services (36%), competence and diligence (22%), and ethical matters (21%). More than half of all complaint issues related to three areas of law: family law (24%), property (19%), and wills and estates (13%).
For more than 15 years, Bismark has been researching complaints made against doctors and other health professionals to improve patient safety. But despite protecting and representing consumers – often for large sums of money – the legal profession had not been subject to the same level of scrutiny.
The LSBC, an independent statutory authority that regulates the legal profession in Victoria, approached Bismark because of her work in health and asked her to apply the same scrutiny to their data on lawyers.
“I think that much like the medical regulators they had a sense there were some frequent flyer practitioners, a small group of lawyers who were coming to the attention of the board and commissioner more often than their colleagues,” Bismark, who is a medical doctor and a lawyer, said.
But the LSBC did not have the resources to confirm this. Bismark and her colleagues spent two months working full-time examining every complaint. They removed identifying practitioner and client information to protect privacy.
They also found lawyers located outside the urban areas of Victoria had a 27% higher chance of being subject to a complaint, compared with lawyers in urban areas. Lawyers aged between 56 and 65 had 1.56 times the odds of experiencing complaints compared to those aged between 26 and 35. In-house lawyers and those at community legal centres had substantially lower odds of experiencing complaints, while lawyers employed in incorporated legal practices were most likely to face the possibility of disciplinary action, even after adjusting for practice size.
“Older male practitioners is a familiar risk factor from our work with doctors,” Bismark told Guardian Australia. “It’s tempting to think it’s just because male lawyers are working longer hours if they’re not as likely to work part-time, or it’s because they’re more senior or doing different work. But a lot of research has found even after controlling for age and type of practise and number of hours, that male practitioners are still at increased risk of complaints.”
She said her research into doctors found women were more likely to consult, show empathy, and respond to concerns proactively.
“Some of those factors might also be influencing women’s lower complaint risk generally,” Bismark said.
The executive director of the LSBC’s complaints and intervention division, Russell Daily, said while there were some problematic lawyers, most complaints were due to misunderstandings.
“Just because a complaint is made, it doesn’t mean the lawyer has done something wrong,” he said.
“With trust matters there might be a death in the family or selling of a property and if it’s an emotional time things can go wrong, there can be a breakdown in communications.”
