Solomon Islands

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Nov 7, 2011 - societies and bar associations and the Large Law Firm Group (LLFG) ..... lawyer to seek admission in other Pacific Commonwealth countries, ...
Solomon Islands Review of Legal Profession Regulations in the Solomon Islands - Scoping Study Report

Ministry of Justice, Solomon Islands

7 November 2011

GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612

Telephone +61 2 6246 3788 Facsimile +61 2 6248 0639

Law Council of Australia Limited ABN 85 005 260 622 www.lawcouncil.asn.au

Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

Table of Contents The Law Council of Australia .................................................................................................. 3  Executive Summary ................................................................................................................ 4  Summary of Findings .............................................................................................................. 4  Legal Profession Regulation in the Solomon Islands .............................................................. 5  Current regulation of lawyers in the Solomon Islands ......................................................... 5  Evolution of legal profession regulation in the Solomon Islands ............................................. 5  Review of Legal Profession Regulation in the Solomon Islands – Scoping Study .................. 9  Consultation with law and justice sector stakeholders ...................................................... 10  Complaints and discipline handling ............................................................................... 10  Admission of lawyers ..................................................................................................... 12  Legal education and professional standards ................................................................. 13  Solomon Islands Bar Association (SIBA) ....................................................................... 14  Trust accounting ............................................................................................................ 15  Professional Indemnity Insurance (PII) .......................................................................... 16  Young lawyers ............................................................................................................... 16  Conclusions ....................................................................................................................... 16  Elimination of the Backlog of Outstanding Complaints against Legal Practitioners .............. 17  Existing legislation ............................................................................................................. 17  A way forward .................................................................................................................... 18  Assistance required ........................................................................................................... 19  Resources required for the elimination of the backlog of outstanding complaints............. 19  Review – Next Steps ............................................................................................................. 21  Terms of Reference for Review ......................................................................................... 21  Proposed Review Schedule .............................................................................................. 22  Recommendations ................................................................................................................ 23 

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

The Law Council of Australia The Law Council of Australia is the peak national representative body of the Australian legal profession. The Law Council was established in 1933 and today represents approximately 56,000 Australian lawyers, through their representative bar associations and law societies (the “constituent bodies” of the Law Council). The Law Council’s constituent bodies are Australia’s sixteen State and Territory law societies and bar associations and the Large Law Firm Group (LLFG) – membership of which is comprised of Australia’s nine large law firms. The Law Council speaks on behalf of the Australian legal profession on national and international legal issues. It works for the improvement of the law, the administration of justice and to promote the interests of the Australian legal profession. The Australian legal profession has been committed to promoting the rule of law in the South Pacific for over 40 years. The Law Council has supported many capacity building initiatives directed towards improving access to justice, judicial standards, and the training of legal professionals. Since 2003 the Law Council has had a dedicated International Strategy to provide direction to all of its international activities, including capacity building initiatives and since 2008 has housed the Secretariat of the South Pacific Lawyers’ Association within its Secretariat in Canberra.

Officer and title Mr Bill Grant Secretary-General Mr David Naylor Senior Policy Lawyer International Division

Contact [email protected] 61 (2) 6246 3721 [email protected] 61 (2) 6246 3717

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

Executive Summary A delegation from the Law Council of Australia visited Honiara, Solomon Islands from 17-21 July, 2011 to conduct a Scoping Study as part of the Review of Legal Profession Regulation in the Solomon Islands (the Review). The primary objective of the Scoping Study was to seek preliminary views from stakeholders on:  

the effectiveness of the existing system for the regulation of lawyers in the Solomon Islands; deficiencies in the existing regulatory system; and desirable amendments to the existing regulatory system.

The Scoping Study identified a strong awareness within the law and justice sector of the key issues facing the legal profession and in particular the deficiencies in the existing regulatory system. Short-term and long-term options to address these deficiencies were discussed with law and justice sector stakeholders. In the short-term it will be possible to address a number of urgent regulatory deficiencies under powers delegated to the Chief Justice by the Legal Practitioners Act 1987. However, sustainable long-term solutions will require legislative reform and drafting of ‘modern’ legislation to replace the Legal Practitioners Act 1987. This Report sets out the findings of the Scoping Study, including the urgent need to resolve outstanding disciplinary matters, and recommends Terms of Reference and a Statement of Outcomes for the Review. The Scoping Study was supported by the Solomon Islands Government (SIG), the Regional Assistance Mission to the Solomon Islands (RAMSI) and the SIG/RAMSI Support Facility (SRSF).

Summary of Findings 1. There is an urgent need to eliminate the backlog of outstanding complaints against legal practitioners. 2. A ‘backlog elimination program’ could be commenced in December 2011 and run parallel to the Review using existing legislation provided that:a. adequate support is provided to the Chief Justice to draft necessary rules; b. administrative support is available to support Disciplinary Committees to conduct investigations, make recommendations and where necessary to brief a prosecutor; c. support is available to the Office of the Director of Public Prosecutions to prosecute complaints; and d. a Principal Magistrate can be appointed to chair disciplinary committees. 3. The current regulatory framework for the legal profession is not sufficient to adequately regulate the Solomon Islands legal profession. There are many reasons for this including the growth of the private profession, changes in the volume and scope of legal work over the past two decades, and the development of regulatory practices. 4. A comprehensive review of legal profession regulation in the Solomon Islands in accordance with the suggested Terms of Reference and desired outcomes could be commenced in January 2012 and be completed by November 2012. 5. There is an urgent need for training and professional development in the legal sector. This issue should be pursued separately to the Review and in consultation with SIBA and RAMSI.

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

Legal Profession Regulation in the Solomon Islands

Evolution of legal profession regulation in the Solomon Islands

This section provides an overview of the current regulation of lawyers in the Solomon Islands. It also identifies concerns regarding the existing regulatory framework and suggestions to address these concerns raised in meetings conducted as part of the Scoping Study

Legal Practitioners Act 1987 passed into law. 1987 1-2 lawyers in private practice. ~20 lawyers working for government.

Current regulation of lawyers in the Solomon Islands

‘The Legal Practitioners 1995 (Professional Conduct) Rules enter into force.

In 1987, the Legal Practitioners Act 1987 was enacted. At this time there were less than 20 lawyers in the Solomon Islands and only one or two lawyers in private practice. The Act provides for the admission of legal practitioners, provides for the appointment of disciplinary committees to investigate any complaint or the conduct of any legal practitioner and establishes a number of offences relating to the unqualified practice of law. The Act also contains miscellaneous provisions which provide extensive powers to the Chief Justice to make rules for: regulating the admission and remuneration of legal practitioners;  regulating the conduct of agents of legal practitioners;  procedures to be observed in respect of complaints and disciplinary proceedings;  the opening and keeping of trust accounts and office/practice accounts;  the auditing of accounts, the production of records and the scale of fees to be paid to auditors;  procedures for removal of the name of a legal practitioner from the roll of legal practitioners;  prescribing the form of practising certificates; and  prescribing anything else required or permitted under the Act.1 In September 1995, the Hon. Chief Justice Sir (Gilbert) John Baptist Muria approved the Legal Practitioners (Professional Conduct) Rules (Conduct Rules). The Conduct Rules set out

1996

A complaint against a legal practitioner leads to the establishment of the first disciplinary committee to investigate and if required prosecute the complaint in accordance with the Act. Investigations of committee show a 1997 prima facie case. However, the matter is dismissed after the Chair of the committee is forced to excuse himself due to a conflict of interest and it is discovered that the process established under the Act does not provide for situations where the Chair of the committee has a conflict of interest. Legal Practitioners (Amendment Act) 2003 was passed into law. The Act provides for delegation by Chair of complaints committee to a 2003 deputy. The Act also granted limited power to SIBA to investigate and process complaints . Committees established under the new system to investigate complaints of minor to serious professional misconduct fail to 2003 successfully investigate and to prosecute any complaints. 2007 Rules of procedure for the conduct of committees are not established. Processes for the investigation of complaints are not established. Draft Solomon Islands Bar 2009 Association (SIBA) Bill prepared. No further action. to 2010 Draft Rules of Procedure prepared. No further action. 2011

1

The Legal Practitioners (Admission) Rules enter into force.

Decision to Review the regulation of the legal profession.

Legal Practitioners Act 1987 s 21 (1) (a)-(l).

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

the duties and obligations of a legal practitioner to:         



 

  

    

engage in honest and ethical conduct; be competent in all professional activities; respond within a prescribed period of time to any requests made by a disciplinary committee; maintain professional integrity and take reasonable care to ensure that partners, associates and employees do not breach the Conduct Rules; report breaches to the Executive Committee of SIBA; comply with restrictions in relation to advertising of legal services; deal with clients fairly and in good faith, protect the interests of clients and advise clients of unreasonable delays; not accept instructions which are beyond his/her competence; seek instructions from a client to resolve a matter outside of court when it is in the best interests of the client; maintain the client’s trust and confidence and not to use the client’s confidence in any way detrimental to the interests of that client, nor to reveal those interests except when required to do so in accordance with the Conduct Rules; avoid any conflict of interest in relation to a client, except where that client has been advised of the conflict in writing and assents in writing to the practitioner continuing to represent him/her; advise clients of any conflict which develops between their interests and the interests of any other client; not advise, or knowingly permit a client to lend money to a relative of the legal practitioner or his/her family, nor his/her partner’s family unless that client engages in a business of money lending; maintain independence; ensure that clients are kept informed of their rights and possible courses of conduct and significant developments in relation to their matter; act only upon instructions of their client, refrain from advising their client to engage in illegal conduct and continue to act for the client unless a reasonable inference can be made that the client’s instructions have been withdrawn; the court in respect of court proceedings; render a bill of costs upon request of a client; comply with provisions relating to the termination of a retainer; other legal practitioners and the judiciary; ensure that his/her law practice is properly administered, including the maintenance of a place of practice and providing notice to SIBA of the address;2

The Conduct Rules provide the first ‘official’ reference to the Solomon Islands Bar Association (SIBA) and delegate authority to SIBA to: 

provide advice to legal practitioners upon request as to their duties or obligations of professional conduct; 3 receive reports from any legal practitioner who becomes aware of a breach of the Act or Conduct Rules;4

2

Legal Practitioners (Professional Conduct) Rules (Conduct Rules). s 2. Conduct Rules s 2. 4 Conduct Rules s 4. 3

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

 

request the production of a true and correct copy or recording of any advertisement published by a legal practitioner pursuant to the Conduct Rules for inspection;5 receive notice from a legal practitioner as to the address of his/her practice or changes from time to time.6

In 1996, the Hon. Chief Justice Sir (Gilbert) John Baptist Muria approved the Legal Practitioners (Admission) Rules (Admission Rules). From 1987 to 1997 a number of complaints were received against legal practitioners by the Chief Justice. Disciplinary committees may have been established during this period, but there is no record of them having been established, nor successfully resolving any complaints. This may be attributed to a variety of reasons including:- the small size of the legal profession, the absence of rules of procedure for investigating complaints, the absence of guidelines to categorise complaints and prescribe penalties for offences, the mandatory involvement of the Attorney-General as Chair of disciplinary committees and the lack of administrative support for disciplinary committees. A significant disciplinary matter arose in around 1997. This matter resulted in identification of a fundamental flaw in the complaints process – the inability of the Attorney-General to appoint a Deputy-Chair of the complaints committee. In 2003, Attorney-General Mr Primo Afeau oversaw the enactment of the Legal Practitioners (Amendment) Act 2003. The Act amended the Legal Practitioners Act 1987 and in particular:





provided for the Attorney-General (Chairman of disciplinary panel) to appoint a Deputy Chairman to act as chairman in any proceeding in the absence of the chairman; empowered the Executive Committee of SIBA to:o receive a complaint against the conduct of any legal practitioner; o investigate the complaint if necessary; o refer the matter to the Chairman where SIBA is of the view that the complaint merits further investigation; o dismiss the matter; required SIBA to appoint one of its members to prosecute complaints before a discipline committee.

Following the Amendment Act, the Executive Committee of SIBA met regularly to consider complaints and established processes for inquiring into complaints. Some complaints were dismissed as vexatious or without cause and some complaints were referred to the Chairman for further investigation. Where a practitioner failed to respond to correspondence by the Executive Committee the complaint was generally not followed up. Between 2003 and 2011 some disciplinary committees were formed, but even where further investigations were carried out, no prosecutions took place. In 2008, a draft Solomon Islands Bar Association (SIBA) Bill was prepared at the request of the then Attorney-General Mr Gabriel Suri. Among other things the draft SIBA Bill:

5 6

provides for the incorporation of SIBA;

Conduct Rules s 6 (7). Conduct rules s 22 (2).

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

     

establishes statutory powers for SIBA as the peak body of the Solomon Islands legal profession and as a regulatory body; provides for mandatory membership of SIBA by all lawyers (i.e. including both government and private lawyers); provides for the direction of practising certificate fees to SIBA (i.e. from consolidated revenue); establishes rules for the keeping of trust accounts by members (i.e. all lawyers); requires banks to pay interest on trust accounts and to pay interest so received to SIBA (i.e. akin to fidelity fund rules in Australian jurisdictions); requires practitioners to obtain professional indemnity insurance.

During consultations which took place following the preparation of the draft, a question arose over whether mandatory membership of SIBA was in breach of the freedom of association established under the Constitution and the advancement of the Bill was halted while this matter was determined. Also in 2010, draft Legal Practitioners (Disciplinary Procedure) Rules 2010 were prepared at the request of the Attorney-General. The rules seek to establish unambiguous procedures for:           

the making of complaints against a legal practitioner; investigations by the Executive Committee of SIBA; dismissal of ill-conceived complaints or complaints for which there is insufficient evidence; the appointment of a disciplinary committee; the preparation of disciplinary charges; interlocutory applications; hearings of complaints; rules of evidence; orders of the disciplinary committee; mediation and settlement of complaints; costs; and the keeping of records.

In late 2010, elections took place and progress to advance the approval of the Rules and address issues with the draft SIBA Bill was halted. In 2011, Cabinet endorsed the commencement of a comprehensive Review of Legal Profession Regulation in the Solomon Islands.

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

Review of Legal Profession Regulation in the Solomon Islands – Scoping Study In March 2011, the Solomon Islands Ministry of Justice and Legal Affairs (MJLA) endorsed the commencement of a Review of Legal Profession Regulation in the Solomon Islands (the Review). The MJLA invited the Law Council to partner with it to conduct the Review. The Law Council accepted the Ministry’s invitation, subject to the completion of a Scoping Study to:



seek preliminary views from stakeholders on:o the effectiveness of the existing system for the regulation of lawyers in the Solomon Islands; o deficiencies in the existing regulatory system; and o desirable amendments to the existing regulatory system. prepare a Report which:o reports on meetings with stakeholders; o identifies agreed Terms of Reference; and o Identifies preliminary concerns of law and justice stakeholders with the existing regulatory system and desired outcomes for the Review.

The Scoping Study was conducted from 17-21 July, 2011. The Law Council’s delegation consisted of Mr Alex Ward, President, Mr Bill Grant, Secretary-General and Mr David Naylor, Senior Policy Lawyer, International (Review Team). The Review Team conducted meetings with a broad cross-section of law and justice sector stakeholders. Table 1

Name

Title

The Hon. Sir Albert Palmer

Chief Justice

Mr Billy Titiulu

Attorney-General

Mr James Remobatu

Permanent Secretary, MJLA

Mr Rodney Kingmele

President, Solomon Islands Bar Association

Mr John Sullivan QC

Principal, Sol-Law Barristers, Solicitors and Notaries

Mr Gabriel Suri

Former Attorney-General, Principal, Gabriel Suri Barrister and Solicitor

Mr Primo Afeau

Former Attorney General, Principal, Primo Afeau Barrister and Solicitor

Mr Tim Vistarini

Program Director, RAMSI, Law and Justice Program

Mr Robert Firigeni

President, Government Lawyers’ Association

Mr Paul Tippett

Team Leader, SRSF

Mr Andrew Radclyffe

Principal, Andrew Radclyffe Barrister and Solicitor

Mr Ranjit Hewagama Mr Rupeni Nawaqakuta

Legal Draftsman

Mr Ronald Talasasa

Director, Public Prosecutions

Mr Douglas Hou

Public Solicitor

Ms Linda Folaumoetui Mr Savenaca Banuve

Justice Advisers

Mr Josaia Naigulevu

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

The Scoping Study identified a strong awareness within the law and justice sector of the key issues facing the legal profession and in particular the deficiencies in the current regulatory system. Short-term and long-term options to address these deficiencies were discussed with law and justice sector stakeholders. It was clear that the individuals and organisations which comprise the law and justice sector in the Solomon Islands share many concerns and frustrations over the ineffectiveness of the currently regulatory framework. There was strong support for the Review and recognition of the challenges of implementing widespread reforms. During the Scoping Study it became clear that the issue of greatest immediate concern is the ineffectiveness of the current complaints and discipline handling system and its failure to provide prompt and certain outcomes. Many interviewees regarded this as the paramount issue and as one which required urgent and immediate action. Strong support was given by interviewees for the idea of addressing the backlog of outstanding claims against legal practitioners as a separate issue to reforming legal profession legislation and regulation.

Consultation with law and justice sector stakeholders Consultation took place by way of formal meetings and interviews with stakeholders. Following background on the purpose of the meeting and the context of the Scoping Study in the broader Review, interviewees were asked to identify what they perceived as being the strengths and weaknesses of the existing system for the regulation of lawyers and to suggest possible reforms to strengthen the regulatory system. Knowledge of issues and ideas acquired during the meetings enabled the Review Team to ask more specific questions including their response to issues and reform options identified by the Review Team. Responses from interviewees are reported below and are collated under common themes. Complaints and discipline handling The current system, despite the good intentions of all parties, does not function and has never resulted in disciplinary action being taken against a practitioner despite strong evidence of misconduct in a number of matters. Key issues raised by interviewees are set out below:Backlog of complaints  the Review Team was advised that there are approximately 40-45 outstanding complaints against practitioners and it was suggested that of these approximately 410 could be classified as ‘serious complaints’ relating to misuse of trust funds from a few dollars to a few million dollars;  all interviewees identified the elimination of the backlog of existing complaints as being of paramount importance to improving public opinion of the legal profession and in raising legal professional standards. It was noted in particular that there are many ‘minor’ outstanding matters for which a warning or a small fine would be an appropriate disciplinary response;  a number of interviewees noted that a system which is expeditious will rapidly lead to acceptance and confidence in the regulatory framework by legal practitioners and the public. A separate proposal to address the backlog of complaints is set out on page 17 of this Report. 10 | P a g e

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Administration of complaints  there is no funding to support the existing complaints and discipline handling system and the view was shared by a number of interviewees that the effectiveness of any new regular tree system would depend on whether its funding structure was sustainable and could support an officer to administer complaints;  there is a lack of administrative support for committees to investigate complaints properly;  lawyers appointed to disciplinary committees may have a conflict of interest (personal or subject matter) due to the small size of the legal profession, and/or felt uncomfortable ‘sitting in judgment’ on their peers;  It was noted that it is not appropriate for lawyers to walk away from the enforcement of their professional responsibilities just because it is unpleasant or uncomfortable to do so;  the Attorney-General and previous holders of that office who were interviewed opined that the regulatory system should be completely independent from government;  the Chief Justice similarly expressed his view that the Chief Justice should not be responsible for complaints and discipline. Complaints process and procedures  there are no rules and procedures to provide guidance to disciplinary committees although it was noted that committees have the power to establish their own rules and procedures and that draft rules were prepared in 2010;  Mr Suri advised that when he was Attorney General he prepared a spreadsheet which was sent to the Chief Justice and the President of SIBA. The spreadsheet provided an update on the nature of complaints and classified the complaints. The aim was to deal with the most recent complaints first.  it was noted that SIBA’s Executive Committee is currently empowered to refer ‘serious’ complaints to a disciplinary committee for further investigation and to dismiss a complaint which is vexatious or unprovable. It was suggested that SIBA should also be empowered to make determinations in respect of ‘less severe’ misconduct with clear guidelines directing them as to:o criteria for making such a determination; o referring matters dealing with ‘professional misconduct’ to a disciplinary committee; and o mitigating factors.  a number of interviewees raised the possibility of the office of the DPP being responsible for prosecuting serious complaints against legal practitioners. The DPP responded favourably to this suggestion when it was put to him;  it was also suggested that an external prosecutor could be brought in to assist with the elimination of the backlog of complaints. However, it was considered that any external prosecutor should work with the office of the DPP to prosecute outstanding complaints and should also have a role in helping to train DPP staff in how to prosecute complaints against legal practitioners. Disciplinary committees  a number of interviewees suggested a process whereby a disciplinary tribunal is established, where necessary, consisting of a lawyer, a layperson and a magistrate as the Chair or President of the Tribunal;

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the Chief Justice noted that a Principal Magistrate would make an appropriate Chair for a disciplinary tribunal because a magistrate would have a comprehensive knowledge of relevant procedures and the skills required to hear evidence; the Chief Justice was strongly supportive of the proposal to restructure the make up of disciplinary committees and suggested that that judgments of such a tribunal should be reviewable by the court; interviewees agreed that there should be provision for the suspension of a lawyer’s practising certificate pending investigation of a complaint of professional misconduct.

Examples  an example was cited several times of a lawyer who remained in practice, despite the existence of a civil judgement against him for trust account anomalies and an ongoing criminal investigation. It was suggested by several parties that the reasons for this include:o an absence of powers permitting a disciplinary committee – or any other authority- to suspend a practitioner pending investigation for serious breaches of professional conduct; o a lack of clear rules of evidence for discipline committees.  in a similar case the lawyer was sentenced to jail, but has now been released.  in neither of the examples given has the lawyer received disciplinary sanctions such as suspension of his practising certificate or “striking off”. Improving the system Interviewees generally agreed that the system could be improved by:    

  

designing and implementing a backlog elimination program; ensuring that complaints against a lawyer are investigated promptly; ensuring that sanctions, remedies and punitive measures for a sustained complaint are unambiguous and strictly enforced; introduce a two-tiered system for the management of complaints against legal practitioners, for example:- ‘unsatisfactory professional conduct’ (less severe matters such as poor communication with clients, discourtesy to the bench, etc) and ‘professional misconduct’ (serious matters which may warrant suspension of a practising certificate or ‘striking off’); providing for the suspension of a practising certificate pending investigation for a serious offence; replacing the roles of the Attorney-General and the Chief Justice in the disciplinary system; increasing the role and responsibility of SIBA in regards to the regulation of the conduct of legal practitioners.

Admission of lawyers Key issues raised by stakeholders relating to the admission of lawyers to legal practice included:

under the current system, it is possible for a newly graduated Solomon Islands lawyer to seek admission in other Pacific Commonwealth countries, obtain a fullpractising certificate, return to the Solomon Islands and then be granted admission as a sole practitioner. By contrast, in New South Wales, a newly admitted practitioner

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 



must undertake 2 years of ‘supervised’ or ‘restricted’7 practice before being eligible to obtain an ‘unrestricted’ practising certificate. Before being eligible to practise as a sole practitioner or a partner of a law firm, the legal practitioner is required to complete an approved course in practice management by an approved provider – for example, the College of Law; ambiguous provisions relating to the eligibility of lawyers to engage in legal practice as sole practitioners; under the existing legislation the only role of SIBA in the admission of lawyers is to receive an invitation for comment by the registrar of the High Court on the admission of lawyers; a strict process for admission of lawyers was proposed by one interviewee:- to impose longer periods of supervised practice, requiring a lawyer to undertake a period of articles for 3-4 years before being eligible for admission as a lawyer on a ‘restricted’ or ‘supervised’ practising certificate for a minimum of 2 years. It was thought that these time periods could perhaps be reduced subject to the completion of approved training courses.

Legal education and professional standards There is a need for greater access to legal education and training in the Solomon Islands, particularly in the areas of trust accounting, professional ethics and practice management. Key issues raised by stakeholders regarding the education of legal practitioners included: 





  

there is a need for training in basic ethics and lawyering as a profession; the need to increase the role of universities, particularly the University of the South Pacific (USP), in legal education, particularly in the nature of ongoing support for lawyers; it was noted by one interviewee that the USP requires more by way of support to elevate the standard of its graduates and in particular to improve the standard of graduates of the Post Graduate Diploma in legal practice in trust accounting and ethics. It was noted that for such vital subjects all graduates should be assessed against the same benchmark (i.e. no scaling);8 the education of lawyers needs to be improved about situations where a conflict of interest arises. Due to the small size of the legal profession, conflicts of interest arise often and there is currently no clear onus of disclosure to clients; unless an opportunity to undertake continuing legal education (CLE) comes along most practitioners will be unlikely to seek out further education and training; most training opportunities are made available to government law officers, but not to the private legal profession; a regular CLE program needs to be introduced with the ultimate aim of making it mandatory for all lawyers;

7

Supervision must be by a lawyer who holds an ‘unrestricted’ or ‘unconditional’ practising certificate in an eligible workplace for example, a law firm, a government legal branch or department, law reform commission, or in-house legal branch. The Supervisor must have practiced on an unrestricted/unconditional basis for at least 5 years. It was noted that some current firms have Principals with less than 5 years unrestricted/unconditional practising experience employing and supervising new law graduates. 8 The interviewee clarified that these comments arise from a personal perception that the competence of graduates appears to vary greatly from year to year and that some graduate lawyers appear to lack even a basic understanding of ethics and accounting in practice.

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  

a proper CLE program coordinated by SIBA was considered by many interviewees as being the best model for delivering training to legal practitioners; in seeking to facilitate training opportunities, it was noted that around 98% of the legal profession are based in Honiara; a webinar format was considered by many interviewees as being an excellent format to provide CLE opportunities in the Solomon Islands.

Solomon Islands Bar Association (SIBA) The role and function of SIBA was discussed with all interviewees. It was noted that while SIBA has a Constitution and many delegated functions under legislation, its actual role is poorly defined under existing legislation. Some of the key issues raised include:

 



Membership;o mandatory versus voluntary membership; o tiering of membership fees for private and government/in-house lawyers; Value of membership (i.e. member services); Administration;o several interviewees noted that it is not realistic to expect a volunteer executive of busy legal practitioners to carry out all of the functions of a peak legal professional body secretariat without any administrative support; o RAMSI noted that it has previously funded an administrative assistant for SIBA and that this arrangement was ultimately ineffective. A variety of reasons for this were given by RAMSI and SIBA; o it was agreed by many interviewees that to function effectively, SIBA requires a permanent administrator to facilitate member services such as organising legal education events, preparing and distributing information to members, complaints file management, responding to inquiries from members; o SIBA noted that needs an administrator who is experienced enough to administer the functions of SIBA, including the provision of member services, under minimal supervision. Funding;o SIBA lacks a stable and sufficient source of funding; o the Review Team suggested that a ‘specialist accreditation’ system which exists in most Australian jurisdictions could enable lawyers with particular training and skills to distinguish themselves (i.e. as litigators, ADR practitioners, family law specialists, property law specialists, etc). Such an accreditation system carries a high value for practitioners and if properly established could also provide a source of revenue for a peak legal professional association. o it was agreed by SIBA representatives that specialist accreditation would be a good system to introduce, but that there may be some restrictions under the current legislation; o it was considered that practising certificate fees should be paid to SIBA and be set at a more realistic rate for both private and government lawyers; o financial membership of SIBA should be compulsory, should include government lawyers and government lawyers should be subject to the same rules of conduct as private practitioners.

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Trust accounting There are currently no regulations providing for the keeping of trust accounts, auditing of trust accounts, or the protection of client monies held in trust. The Review Team received conflicting reports on the operation of trust accounts by law practices in the Solomon Islands. It seems as if most practitioners operate trust accounts although some firms operate joint trust accounts. It was noted that these joint trust accounts are usually ordered by the Court and are typically ordered in cases involving a dispute over the ownership of customary land on which there is a logging operation. Key issues raised by stakeholders relating to trust accounting included: 

the lack of regulation for the keeping of trust accounts, auditing of accounts and the protection of client money; the mixing of trust with personal or firm monies in a single account;

Training and expertise in the handling of trust monies  there is an urgent need for training for lawyers in accounting and book-keeping. No formal training is received by lawyers in trust and office accounting from any source unless it is sought privately;  there is a significant lack of training of lawyers in proper procedures for the handling of trust money;  the interviewees identified that one of the major challenges for a practitioner who starts a new practice is in dealing with money. Without detailed guidance for practitioners on managing trust accounts and the unavailability of basic training, it is difficult for practitioners to learn the right way. Auditing of trust accounts  the Review Team raised the issue of mandatory annual auditing of legal practitioners’ trust accounts. Interviewees agreed that there is a need to impose an ‘active system’ such as mandatory annual auditing and it was noted that if a ‘routine process audit’ indicated a problem then a more thorough audit could be conducted;  it was suggested that the cost of an audit for a sole practitioner may be quite burdensome and that if there is a cut-off point for audit costs mandatory audits paid for by the practitioner or firm being audited could be very effective;  Several interviewees held the view that the penalty for failing to provide an audit certificate in a given year should be to prevent the practitioner from being re-issued with a practising certificate;  the Review Team was advised that most practitioners would rarely deal with transactions of more than $100,000 (SBD). While not a reason against the keeping and auditing of trust accounts, this may have implications in considering whether transactions are ‘reportable transactions’ under anti-money laundering laws;  it was suggested that audits of trust accounts should be conducted only by accountants on an ‘approved’ list;  the possibility of establishing a public purpose fund from the interest earned on trust accounts was raised for discussion by the Review Team and met with enthusiasm by most interviewees;  interviewees noted that access to the public purpose fund could be strictly controlled by requiring the signature of a nominee of the Attorney-General, Chief Justice, the President of SIBA and a respected public figure. Any funding obtained in this way could be used for regulatory purposes; 15 | P a g e

Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report



it was agreed that a regulator should have the authority and resources to conduct spot audits.

Professional Indemnity Insurance (PII) The issue of professional indemnity insurance was raised by the Review Team with some interviewees. The Review Team was advised that some practitioners carry PII, but that PII was likely to be unavailable to the majority of practitioners because most insurers are reluctant to issue PII to Pacific Island countries. PII is an area which should be examined further. Young lawyers A few issues were raised by interviewees relating to young lawyers, including:  

lack of employment opportunities in private law firms for young lawyers to undertake supervised practice; lack of mentoring and support from senior practitioners; there are no services for young lawyers to seek advice in relation to ethical or tactical issues, let alone to do so confidentially or anonymously.

Conclusions It can be seen from the above discussion of issues raised during the consultation process that the provisions of the Legal Practitioners Act 1987 are outdated and deficient when compared to a modern system for the regulation of legal practitioners. Some of the difficulties identified above could be remedied by developing a more appropriate, comprehensive and modern regulatory regime for the conduct of legal practitioners. The deficiencies in relation to trust account regulation in the current Act have already been identified and it is considered critical that steps be taken to introduce a comprehensive package of reforms in this area. This Report proposes a dual strategy to address the deficiencies in the regulation of the legal profession in the Solomon Islands:  

the elimination of the backlog of outstanding complaints against legal practitioners; and a comprehensive review and revision of the Legal Practitioners Act in consultation with all relevant stakeholders.

The consultations reveal an urgent need for training and professional development in the legal sector in the Solomon Islands in a range of areas. While beyond the scope of the Review, the Law Council nevertheless believes that this issue is intrinsically linked to the outcomes of the Review and should be pursued separately and in consultation with SIBA and RAMSI.

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Elimination of the Backlog of Outstanding Complaints against Legal Practitioners As previously mentioned it is understood that there are approximately 40-45 outstanding complaints against legal practitioners. No break-down of these complaints has been made available and therefore it is unknown how many of these complaints raise substantial issues and how many raise less serious issues. Estimates ranged from 4 to 10 ‘serious’ complaints. It is understood that in recent years, Parliament has not been sitting regularly and it is therefore desirable that any attempt to expedite the elimination of the backlog of complaints against legal practitioners should be carried out using the current legislative framework if possible. The Law Council believes that this will be possible by exercising the power of the Chief Justice to make rules under the Legal Practitioners Act 1987. It is essential that the legal practitioners of the Solomon Islands understand that any complaint made against them for unprofessional or inappropriate conduct will be taken seriously, investigated appropriately and prosecuted expeditiously. In this regard, it is suggested that one of the important outcomes of the examination of the outstanding complaints is that an appropriately serious matter be taken promptly to a Disciplinary Committee for action.

Existing legislation Before making any suggestions for processes to deal with outstanding complaints, it is necessary to summarise the existing provisions of the current legislation governing the discipline of legal practitioners. Part III of the Legal Practitioners Act 1987 deals with discipline of legal practitioners. The Act was amended by the Legal Practitioners (Amendment) Act 2003 and the current process and procedures for dealing with complaints against legal practitioners may be summarised as follows:

 

  

 

section 8 of the Act provides for the establishment of a panel of legal practitioners appointed by the Chief Justice from which a Disciplinary Committee may be constituted to investigate any complaints about the conduct of a legal practitioner; once a complaint is received by SIBA concerning the conduct of a legal practitioner, its Executive Committee is empowered to investigate the complaint; if the Executive Committee of SIBA consider that the complaint merits further investigation, it may refer the matter to the Chairman who must then constitute a Disciplinary Committee to investigate the complaint; the Chief Justice may also refer any complaint to the Chairman to establish a disciplinary committee to investigate; where an investigation is conducted by a Disciplinary Committee, SIBA is required to appoint one of its members to prosecute the complaint before the committee; the Committee shall constitute the Attorney-General as Chairman of the disciplinary Panel and four other members of at least five years’ good standing drawn equally from practitioners holding public office and in private practice, one of whom shall be appointed as Deputy-Chairman; if the Chairman (Attorney General) is not to act in a particular matter, then the Deputy Chairman shall act as Chairman; the Chief Justice may refer any complaint concerning the conduct of a legal practitioner to the Chairman for investigation by the disciplinary panel;

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

 

 

 

when a complaint is referred to the Chairman, he shall appoint three members of the Panel to constitute the Disciplinary Committee; under Section 9 and 10 the Disciplinary Committee has wide powers to make investigations, make orders as it deems appropriate and to compel witnesses and the production of evidence; hearings before the Disciplinary Committee are to be adversarial; under Section 11, striking-off or suspension from practice may only be ordered where the practitioner has been convicted of a crime involving dishonesty or in the opinion of the committee the practitioner is not a fit and proper person to practise; under Section 12, a right of appeal against the decision of the Committee lies in the High Court; section 13 empowers the Chief Justice to make rules in respect of the making, hearing and determination of inquiries or investigations under ‘Part III Discipline’ of the Act.

As noted previously, there are two draft legislative instruments intended:- one dealing with the incorporation of SIBA; and the other providing a comprehensive set of disciplinary rules made by the Chief Justice. Neither of these drafts has been finalised or enacted, but they provide an excellent starting point for the consideration of these matters.

A way forward Given the current issues in both convening Disciplinary Committees and the failure of established Committees to conduct investigations and hearings, it would seem that a new approach needs to be taken if complaints are going to be dealt with under existing legislation. This new approach should include the following:



 



the Chief Justice should be asked to appoint a Committee with a judicial officer as the Deputy-Chairman who will act as Chairman if and when the Attorney-General does not so act. Consideration should be given to the type of judicial officer appointed to such a position and it is suggested that it would be appropriate for this appointment to be at a Principal Magistrate level; the other three members of the Committee should include one other public officer and two senior members of SIBA, after discussions between the Chief Justice, Attorney-General and the President of SIBA; an officer of the Director of Public Prosecutions should be appointed to prosecute any such complaints before the disciplinary committee; the Chief Justice should be requested to make Rules in relation to the procedure to be adopted in respect of complaints and disciplinary proceedings and the Legal Practitioners (Disciplinary Procedure) Rules 2010 should be an appropriate starting point for the making of these Rules; SIBA and the Attorney General should make a thorough examination of all outstanding complaints against legal practitioners. This examination should aim to eliminate complaints that are too old, trivial or vexatious and provide a means whereby the serious complaints can be considered for referral to a disciplinary committee.

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Assistance required To implement this ‘way forward’, the following assistance would be necessary:1.

provision of support, possibly through technical assistance, to the Chief Justice and Legal Draftsmen within the Attorney-General’s Chambers to develop and finalise an appropriate set of procedural rules, as discussed above;

2.

confirmation and agreement for a Principal Magistrate9 to be appointed as Deputy Chairman of the Disciplinary Committee and for the Director of Public Prosecutions to undertake the presentation of disciplinary matters to the Committee;

3.

provision of support, possibly through technical assistance, to the SIBA Executive Committee to develop appropriate processes and procedures for the appraisal of complaints against legal practitioners and to engage with the Attorney-General to collate and examine outstanding complaints against legal practitioners;

4.

provision of support, possibly through technical assistance, it may also be necessary to provide some training to officers of the Director of Public Prosecutions in the conduct and presentation of disciplinary proceedings.

Resources required for the elimination of the backlog of outstanding complaints There was a strong consensus that the backlog elimination program should be commenced as soon as possible and not wait for the introduction of a new regulatory system. It would be possible to provide ‘technical experts’ to implement and manage the backlog elimination process. However, this solution is not sustainable. A better solution would be to develop the capacity of agencies in the Solomon Islands to carry out their role in the complaints and discipline system. Such support could take the form of ‘twinning arrangements’ between key agencies in the Solomon Islands and equivalent bodies in an Australian jurisdiction, for example New South Wales. These twinning arrangements could initially have a narrow scope directed to supporting Solomon Island agencies in respect to the backlog elimination program and be expanded to general areas of need over time. To facilitate the necessary support, technical experts could be provided by twinned organisations with funding for travel, accommodation and ‘in-country expenses’ provided through the RAMSI Law and Justice Program. The Law Council would be happy to further investigate the establishment of twinning arrangements between Solomon Islands stakeholders and appropriate Australian stakeholders. the purpose of these twinning arrangements would be to establish long-term relationships with the Solomon Islands authorities, with the aim of both providing immediate assistance and providing ongoing support and capacity building over a longer term. Further to this, the Law Council would be happy to liaise with the RAMSI Law and Justice Program to develop applications to support proposed activities. The Law Council believes that the backlog elimination program should be separate to the Review and should be completed before the finalisation of the Review. A proposed timeframe for conducting the backlog elimination exercise is set out below:-

9

It was suggested by some interviewees that an Expatriate Magistrate should be appointed at first instance and train other magistrates in dealing with disciplinary cases.

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Date

Activity

December 2011 to February 2012

SIBA and Attorney-General to consolidate outstanding complaints, note necessary action and identify ‘priority’ complaints.

December 2011 to February 2012

Law Council to engage with Solomon Islands and Australian stakeholders to establish twinning arrangements for SIBA and the Solomon Islands DPP.

January to February 2012

Finalisation and approval by Chief Justice of revised complaints and discipline procedural rules.

March 2012

Establishment of Complaints Panel and appointment of Disciplinary Committees under new rules to address priority complaints.

March to July 2012

Disciplinary Committees to establish a timetable for dealing with complaints in accordance with the rules. Support and assistance to be provided by twinned organisations with input from the Law Council.

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Review of Legal Profession Regulation in the Solomon Islands – Scoping Study Report

Review – Next Steps The Law Council submits that the Review should continue on the basis of the proposed Terms of Reference and Review Schedule set out below. The Law Council believes that the proposed Terms of Reference will enable a comprehensive review to be conducted and that the Schedule will enable widespread consultation with stakeholders of the Solomon Islands law and justice sector for what will be the most substantial reform to legal profession regulation in the Solomon Islands since the introduction of the Legal Practitioners Act 1987.

Terms of Reference for Review I JAMES REMOBATU, Permanent-Secretary, Ministry of Justice and Legislative Affairs, having regard to:    

the desirability of having comprehensive, consistent and practical laws in relation to the practice of law; the need to establish a sustainable system for the regulation and discipline of lawyers; the need to amend existing legislation and/or to draft new legislation; and the obligations of the legal profession to clients, the courts and the rule of law

REFER to the Ministry of Justice and Legislative Affairs in partnership with the Law Council of Australia (the Review Team) the conduct of a comprehensive review of the regulation of the legal profession in the Solomon Islands. In conducting the review the Ministry and the Law Council of Australia will consider:        

relevant existing laws and practices; client protection; matters pertaining to the establishment of a self-funding, or substantially self-funding, system for the regulation of the legal profession; the role of the Solomon Islands Bar Association in the regulation and representation of all lawyers; the path to practice for graduate lawyers; the regulatory implications of a small legal profession; regional opportunities and impacts of legal profession reform in the Solomon Islands; any related matters.

The Review Team will identify and consult with relevant stakeholders, including the courts, government law and justice agencies, the SIG/RAMSI Support Facility and the private legal profession. The Review Team will provide a Final Report, including drafting instructions to me no later than 31 May 2012.

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Proposed Review Schedule Date

Activity

Responsibility

February 2012

Publication of Discussion Paper.

Law Council of Australia

March 2012 to April 2012

Submissions from stakeholders consultation where requested.

May 2012

Submission of Final Report and drafting instructions for Legal Practitioners Bill 2012 and Legal Practitioners Law Council of Australia Regulations 2012 to Permanent Secretary, MJLA.

June 2012

Consideration of Final Report drafting instructions by MJLA.

August 2012

Publication of Draft Legal Practitioners Bill 2012 and Legal Practitioners Law Council of Australia Regulations 2012.

September to October 2012

Submissions from stakeholders consultation where requested.

November 2012

Final Draft Legal Practitioners Bill 2012 and Legal Practitioners Regulations Law Council of Australia 2012.

and

and

and

Stakeholders, Law and Justice Sector, Solomon Islands

Permanent Secretary, MJLA

Stakeholders, Law and Justice Sector, Solomon Islands

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Recommendations That the Permanent Secretary, Ministry of Justice and Legislative Affairs note this Report and endorse: 1. the proposed program to reduce the backlog of complaints against legal practitioners as set out on pages 17-20 of this Report; 2. the proposed Terms of Reference for the Review as set out on page 21 of this Report; and 3. the proposed Review Schedule as set out on page 22 of this Report.

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