I am somewhat horrified by the varying degrees of knowledge, experience and expectations encountered daily in practice.
Everyone seems to do it a different way, has a different understanding of the process or wants it done ‘their way’.
As an example, one of our clients was recently charged by the police for a traffic matter. As it was an honest mistake on our client’s part and our client did not have any prior convictions, the informant also recommended our client as being suitable for a diversion program.
I was told to organise for our client to attend court for a diversion hearing. The specific instruction I was provided from the instructing solicitor was; call the diversion co-ordinator at the Magistrates Court and tell him/her that our client will like to attend a diversion hearing. Further, our client would require an interpreter for the hearing. Whilst this seemed simplistic, what turned out was that the co-ordinator does not take requests via phone. I was told to send it in via email. On explaining this to the lawyer managing the file, I was told to send it in via fax.
Why would the instructing solicitor specifically do something different to what the co-ordinator requested?
Considering I was keen to ‘get it right’ for my future reference, I spoke to another lawyer about it the next day just to clarify as to why a fax may be preferable over an email? After all, an email seems quicker and just as ‘recordable’ in this day and age?
Unfortunately this made things worse as this other lawyer highlights that this is not how a diversion hearing is organised. This lawyer explained to me that we should have written back to the police officer (informant) recommending the diversion alternative. He/she would then organise for a diversion hearing. When our client is informed of the diversion hearing date, we can then contact the diversion co-ordinator and request for an interpreter; by email if I prefer and the co-ordinator was happy with that.
Well at least now I know that emails are fine…
Until today, I cannot say for sure what the ‘correct’ procedure is. I might have to wait for the next diversion hearing I organise to take a poll amongst the lawyers at work.
Is a lawyer’s ‘professional standards’ really just a bottom catching safety net? If you fail to meet the ‘minimum criteria’ of our professional standards, you have done the wrong thing? It seems that knowledge and procedure is a constant state of ‘flux’ with a high level of variability between practitioners. I however have learnt some lessons for myself distilling this realisation. I think keeping an open mind is important. Certainly, my limited experience clearly demonstrates that not everything an experienced lawyer knows is always true.
I am now having to take everything I am taught with a pinch of salt…
Is it me or is this abnormality ‘normal’?
A few years ago I managed a Diversion Facilitation Program that employed volunteer law students so I feel that I have some capacity to answer the question about what the correct procedure is. But I won’t and for good reason. You will be a lawyer soon and you will have to, at some stage, come to terms with the horrifying reality that you are the one that has to have the answers and when you don’t have the answers you have to learn them, sometimes the hard way.
You start – always – with the legislation and the rules. In your case, s59 of the Criminal Procedure Act 2009 and any relevant rules and protocols of the court in which the diversion is listed. You will know just from looking at the Act that you need the consent from the accused, the prosecution and the court itself. A quick search of the court website and you will know that there is a particular registrar who handles the diversion matters. If the information is not sufficient on the website you will need to call them and make sure you get the correct procedure from them. All requests should be in writing for obvious reasons – whether it is by fax or email will depend on the particular court. Sure, ask experienced lawyers what they do but that cannot be the end of your inquiry. Moreover, if I was mentoring you and you asked me that question I would want to know what you had already done to discover the answers yourself. Not because I am mean but because I know very shortly you will be in a position where that is what is required of you. Best to get used to it.
You cannot just ask other lawyers for answers because, as you already note, the law is in a constant state of flux – lawyers cannot and will never ‘know everything’. There is no shame in asking questions providing we have made some effort to find the answer ourselves and there is no shame in making mistakes – mistakes are how we learn.
Lastly, ‘professional standards’ is a very broad concept. At its bare minimum – it means acting with competency and diligence and complying with the rules of professional conduct. That is the bare minimum! And yes, professional standards do act as a safety net to ensure that people who come in contact with lawyers can expect to receive a reasonable degree of service. Personally, I aim for a little higher than that. I don’t always meet my own standards though. Roughly, that’s because I am human, pretty much like the lawyers I know. I am guessing you are human too so try to relax into this process, know that it will be difficult as you learn the various (and different) procedures of the courts but make sure you keep uppermost in your mind that the moment you are admitted to practice the responsibility for finding the answers becomes yours and it’s not a responsibility that you can delegate to others.