NSW lawyers disciplinary register falls into disrepair ... Missing names ... Legal Services Commissioner says he doesn't know about disciplinary findings that are publicly available ... Hydra-headed regulatory regime dysfunctional  

At least 17 lawyers who have been birched by the Bureau de Spank have not had their names placed on the NSW Disciplinary Register.

Among the omissions are cases from 2005, 2006 and 2007 and then through 2009 to January this year. 

The Legal Profession Act requires that the names of legal practitioners subject to adverse disciplinary findings should be entered on the disciplinary register. 

The register is to be kept by the Legal Services Commissioner and should be publicly accessible through the LSC website. 

Justinian sent the list of names that could not be found on the register to Legal Services Commissioner Steve Mark, seeking a comment.

He said that it is up to the Law Society and the bar to supply the names of lawyers who have been spanked.

Robert Bryden and Bandeli Hagipantelis, from the personal injury shop Brydens, had been among the prominent names against whom adverse findings had been made and yet were not on the register.

Mark thanked us for bringing this to his attention and said those two had "slipped through the cracks" and he added then to the register straight away. 

It's hard to imagine how they "slipped through the cracks" as they were cases brought by the LSC himself and the outcome of the ADT proceedings was widely reported. 

In fact, other citizens had written to the LSC about the register's shortcomings, but their complaints didn't wash. 

Mark told us: 

"As you would be aware, we administer the disciplinary register and when the disciplinary decision is made by the Law Society or Bar Association they supply us with information for placing on the register.

We do not otherwise have this information. A number of the names mentioned in your list appear to be in relation to decisions made by the Law Society or Bar Association.

We have sought the advice of the Law Society in relation to the names referable to Law Society decisions but have not yet received the information requested." 

The commissioner's explanation is puzzling. The disciplinary decisions are not "made" by the professional bodies, but by the tribunal.

The disciplinary findings by the ADT are all available online? 

The state of the disciplinary register seems to be a symptom of the dysfunctionality of the Office of the Legal Services Commissioner. 

We could find no decisions by the Court of Appeal that may have overturned the ADT findings (see below). 

Mark's explanation continued: 

"In relation to those names on the list which appear referable to us, we can advise you of the following: 

1. In relation to Bryden and Hagipantelis we must thank you for the notice as it appears this has 'slipped through the cracks'.  You can see that we have now put that information up on the register. 
2. In relation to Hurley, Piper and Browne [all cases brought by the OLSC itself], the files are in archives and accordingly we have no record readily available as to what might have happened. Accordingly, we cannot give you an explanation in relation to these two [sic] matters. It is interesting that these names also do not appear on the tribunal website [yes they do]."  

Apparently, Steve Mark relies on the Law Society and the Bar Association filling out a "template" and returning to his office with the required information. 

He says he has "re-opened discussions with the Law Society to work towards a better process". 

"It is sometimes difficult to extract a succinct explanation of what the tribunal decided and what the decision was.

For this reason it has been our policy for many years that the body which conducts the case will provide the information.

While it may appear that 17 names  (at least several of which may have received ex tempore decision [sic]) over the years is significant, it may not seem so to others.

It is of course utterly denied by me that any failure to list a name is based on anything other that a mistake.

I should also note that the decision in Brydens is only several months old, and while not an excuse, is unlikely to have resulted in any damage to the public."

If anything this sloppy state of affairs and the woeful explanation that was proferrred shows that the duplicated disciplinary system is a mess. 

Cases are batted between the LSC, the Law Soc and the bar, with complainaints snowed in delays, procrastination, and inadequate responses. 

The Law Soc and the bar insisted on having their paws on the bone of the regulatory function on the spurious ground that to allocate disciplinary cases to an "independent", outside, body would threaten the independence of the legal profession. 

Here are the 17 lawyers missing in action (as at the time of going to press), with links to the publicly available ADT findings: 

Anthony Steven Margiotta 
26/3/2007
Cautioned. 
Margiotta v Law Society of New South Wales (No 2) [2007] NSWADT 65 

Martin Piper
1/12/2006
Publicly reprimanded; failure to comply with undertaking to LSC; fined $1,000. 
Legal Services Commissioner v Piper [2006] NSWADT 12 

Research by Alix Piatek