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Restorative lawyer discipline in Australia.

Haller, Linda
June 4, 2015

Source: (2012) Nevada Law Journal. 12:316-332.

This Article first provides a brief history and overview of lawyer4 discipline
in Australia. Brown and Wolf believe enormous changes would be needed to introduce a consumer protection model of lawyer regulation in the United
States.5 As will be seen, in Australia, legislative supports for consumer protection
and restorative responses to complaints about lawyers are well established.
However, the melding of these on top of a disciplinary system has proven problematic.
Nor do these legislative supports necessarily reflect the current preferences
of regulators. Rather, some regulators of lawyers in Australia appear to
have shunned formal, structured processes (like mediation) and instead have
fashioned less stable powers for themselves out of “public interest” discretions,
which they hold under the relevant legislation.6
The Article then highlights steps in the journey of a complaint from dissatisfaction
to formal discipline. The aim here is to identify particular points in the
escalation of a complaint where a restorative approach could be particularly
beneficial for complainants or lawyers complained about, more likely to
achieve restorative outcomes or the approach more easily put into action. The
Article will demonstrate the benefits of applying a restorative approach at the
very earliest opportunity, when the complaint is received by a lawyer or law
firm and before it escalates to a formal, external complaint. The Article goes on to discuss the question of compensation in lawyer
discipline. Disciplinary systems in Australia have had the power since the
1980s to award compensation while simultaneously disciplining lawyers in the
same proceedings.7 A restorative approach might assume that compensatory
and disciplinary outcomes could be on the table at the same time as part of a
possible suite of outcomes from a restorative conference. However, the granting
of compensatory powers to disciplinary tribunals has proven problematic
for Australian tribunals. The Article explores these problems and considers
their implications for restorative justice. (excerpt)


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