Steve Mark, chief of the Bureau de Spank, says goodbye ... He believes the OLSC's handling of Keddies was "a major success" ... Cultural Regulation v Behavioural Regulation
Steve Mark: complaints resolved beneath the radar (pic: The Australian)
AFTER numerous contract renewals over 19 years, time is finally up for NSW Bureau de Spank chief Steve Mark.
On this occasion the government has opened the job of Legal Services Commissioner to competitive applications and Mark has decided not to reapply.
Prior to that he had more than seven years with the Anti-Discrimination Board and before that stints as a law lecturer, solicitor, landscape gardener, film producer, taxi driver, lumberjack and restaurateur.
So what have been Steve Mark's most important achievements at the Bureau?
It was a question Justinian put to him last week - and the answer was tri-pronged.
Mark said his first task was to establish a purpose for the OLSC.
"Most regulators are happy with 'compliance' - but there's got to be more."
His aim was to reduce complaints against lawyers, "in the context of the rule of law, client protection and improved professionalism".
The figures he cites show that on this score he has largely been successful.
When he first started in the job complaints against lawyers were running at about 3,000 a year. For the year just passed the number was 2,700 - and in the previous two decades the number of lawyers in NSW has increased more than two-fold.
The creation of the OLSC has led to a change in the way the regulatory process functions.
In the good old days, when the Law Society and the Bar Association were the regulators, the emphasis was on charging lawyers who had fallen foul of the law and the professional conduct rules. Mark told Justinian:
"The law is a blunt instrument and it is hard to get convictions against legal practitioners. Clients want their problems addressed ... If the Law Society or the Bar Association dismissed a complaint, that was it - there was no resolution for the customer."
Mark says his emphasis has been on addressing consumers' problems, rather than trying to get lawyers sent down.
Consequently, resolution of issues by consent has been the order of the day.
"Huge numbers of cases have been resolved beneath the radar. We set up an inquiry line, staffed by law students, to resolve disputes in-house."
Over the years hundreds of law undergraduates have been trained to handle complaints and "lower the expectations" of unhappy clients.
The students usually work in shifts of 10 at a time. Overall, the NSW OLSC has an employed staff of 29.
Mark says, "It's a small staff with a big footprint".
There have also been training programs that the OLSC has taken out to law firms and CPD events, dealing mostly with pretty straight forward stuff: how to relate to clients, how to keep lines of communication flowing, how to avoid being a negligent nincompoop.
Mark claims that those firms who have engaged with the process report that complaints have dropped by up to two-thirds.
"We've concentrated on building an 'ethical infrastructure'."
Mark is big on ethical infrastructures and changing cultures. Indeed, he is working on a book with the restorative justice guru Professor John Braithwaite from the ANU, on "cultural regulation versus behavioural regulation".
The need for resolving the complaints of unhappy customers is just fine, although there is no more salutary wake-up call than the public flogging and execution of some of the scoundrels and scumbags that inhabit the trade.
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THERE are any number of unresolved grievances against the OLSC and the commissioner himself.
Almost on a daily basis journalists who report on the law have distressed former clients on their doorsteps with information about the way the commission has handled their complaints.
Numerous overcharged Keddies' victims are at a loss to know why their detailed allegations were dismissed.
There's also a long-standing complaint from a litigant about treatment by Turner Freeman, dismissed, he feels, without a cogent explanation.
The commissioner may well need to apply a dose of his well honed "ethical infrastructure" skills to his own office.
Nonetheless, Mark believes that his handling of Keddies was a "major success - because it was incredibly damaging to the legal profession".
"Previous decisions of the the ADT and the court have made gross overcharging difficult to establish. For instance, costs assessors cannot give expert evidence.
What is an excessive amount? Is it the gap between what is charged and what should have been charged, or is it the overall charge?
It's almost impossible to prove, but we did prove Keddies grossly overcharged."
Presumably, he was referring to the statement of facts agreed between his office and Russell Keddie.
Apart from being hamstrung by particularly weird decisions from the Court of Appeal, the Legal Services Commissioner doesn't really have much money or power.
Certainly the commissioner has no power to declare a lawyer "not fit and proper".
There may be a backdoor way of doing this in relation to incorporated legal practices - but it's never been fully explored.
Mark has a fairly new power to direct the Law Society and the Bar to remove a practising certificate in an emergency situation.
In the 2012 financial year the Bureau de Spank operated on a revenue of about $4.4 million. This comes exclusively from the Public Purpose Fund.
The discretionary outlays from the PPF have risen markedly in recent years, but the non-descretionary outlays (e.g. regulatory functions) have not really changed in 15 years.
The government has been using the PPF as a hollow log to fund legal aid, while the payments to the co-regulators have remained flat.
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THE next step for Steve Mark is his own consultancy, a sort of private Bureau de Spank spreading the word on "cultural regulation".
He says he won't be a gamekeeper turned poacher, but hopes to help lawyers against whom complaints have been made to address their problems.
The other arm of his work will be with the security industry.
Apart from being a director of Midnight Basketball, which produces competitions for "at risk" street kids, Steve Mark has another job.
He is the top dog in something called the Security Professionals Registry. In fact, he is the registrar of the registry.
The registry seeks "to support the development of the professionalism of security practitioners".
On the board we find security experts from Thales Australia and Qantas, a bomb incident manager, The Hon Professor Peter Anderson (former Police Minister, NSW), a retired chief of the Air Force, and a fellow at the Centre for Infrastructure Protection.
Steve Mark & Co will be working with the the financial services sector, the security businesses, the legal caper and other professions.
As he puts it:
"Society will be the ultimate beneficiary."