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Ordering Apologies

Submitted by Francesca Bartlett on Mon, 07-21-2014
Long title
Ordering Lawyers to Apologise for their Misconduct: What's the Benefit?
Bartlett, Francesca
Carroll, Robyn
Author(s)' contact information
University of Queensland, Australia
University of Western Australia
Conference title
International Legal Ethics Conference VI
Conference location
City University London
United Kingdom
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An apology is an uncommon legal remedy. Apologies are often agreed upon as a term of settlement in defamation cases where reputational interests are at stake. Apologies are available as a remedy under anti-discrimination legislation for a combination of compensatory, vindicatory and educative purposes. Judicial views of the value of an ordered apology are deeply divided with some courts dismissing them as having no value. Opinions are similarly divided amongst practitioners, academics and other commentators. Against this background, this paper examines laws recently enacted in Australia, New Zealand and the UK in which legal profession regulators are empowered to order a lawyer to apologise. This paper will set out what is currently known about how, when and why regulators are likely to use apology orders in regulating lawyer conduct.
In the UK, the Legal Ombudsman’s power in consumer disputes is expressly remedial. We consider whether apologies ordered here, given that they are coerced and often ‘not accepted’ by complainants, achieve their legislative purpose. In New Zealand and Australia, a regulator may make an apology order in the context of formal discipline with no regard to compensation or exercise a summary power to resolve a consumer matter. From 2014, in parts of Australia, legal organisations may also be ordered to apologise. We raise questions as to how regulators should approach exercising these new powers and for whose benefit.
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