Chapter 6: Complaints

Since 1994, there has been a system for complaints against lawyers in NSW. The Office of the Legal Services Commissioner (OLSC) was established as an independent body with the power to investigate complaints and to assist in the resolution of disputes. The OLSC works in conjunction with the Law Society and the Bar Association. Lawyers may be disciplined if there is evidence of misconduct.

Office of the Legal Services Commissioner (OLSC)

The Office of the Legal Services Commissioner (OLSC) is responsible for overseeing all complaints against legal practitioners in NSW. It was set up under the changes introduced under the Legal Profession Reform Act 1993 in response to recognition of the need to establish an independent body to investigate complaints. It deals with complaints against solicitors and barristers. The OLSC cannot investigate complaints against judges or how the courts operate.

The OLSC works in conjunction with the relevant professional associations: the Law Society (for solicitors) and the Bar Association (for barristers). All complaints must initially be made to the OLSC, which makes a decision to either deal with the complaint itself or to refer it to the relevant professional association. The investigation of complaints by the OLSC is also governed by the relevant sections of the Legal Profession Uniform Law (NSW) (LPUL).

The majority of the complaints received are ‘consumer matters'. Consumer matters usually involve issues of delay, poor communication or client dissatisfaction with costs. These disputes will be resolved using informal resolution methods where possible (section 287). Often this will entail an officer from the OLSC writing or calling the complainant and the practitioner to get both sides of the story and to bring about a practical solution if possible. Other matters are classified as ‘disciplinary matters' where the conduct alleged is so serious that disciplinary action may be required.

The OLSC encourages people to contact them by phone to discuss their complaint prior to making it. You need to make your complaint in writing and within three years of the problem occurring (excecpt in costs disputes), unless the OLSC considers:

• there to be good reasons for the delay
• it is just and fair to deal with the complaint having regard to the delay
• the conduct complained of involves an allegation of professional misconduct
• it is in the public interest to deal with the complaint.

For costs disputes, the complaint must be made within 60 days after the legal costs become payable or, if an itemised bill was requested, 30 days after the request was complied with (section 272 (3)).

This time limit may only be waived if:

• the complaint is made within four months after the required period referred to in section 272 (3)
• it is just and fair to deal with the complaint
• the lawyer or law firm has not commenced proceedings in respect of the legal costs (section 272(2)).

Staff at the OLSC can assist you in lodging your complaint in writing.

If your dispute is over a consumer matter rather than serious professional misconduct, the OLSC may refer you and your lawyer to mediation (section 288). This is an informal meeting where you can both talk about and try to resolve the dispute with an independent mediator appointed by the OLSC. The mediation is confidential. If mediation fails, the OLSC may investigate the complaint further and proceed to a determination of the consumer matter (section 288 (4)).

Investigations

If the Office of the Legal Services Commissioner considers that your complaint is serious, it will conduct an investigation or may refer the matter to the Professional Standards Division of the Law Society (for solicitors) or the Professional Conduct Department of the Bar Association (for barristers) for investigation. No matter where the investigation is conducted, the lawyer will be given an opportunity to respond to the complaint.

Decisions after the investigation

Once the investigation is completed, a decision will be made about whether or not disciplinary action is warranted. Where there is sufficient proof of misconduct a decision may be made to:

• issue a caution, reprimand the lawyer, make a compensation order and/or a practising certificate condition, or
• refer the matter to the NSW Civil and Administrative Tribunal (NCAT) (section 300).

If there is not sufficient evidence, or where the lawyer's record is otherwise unblemished, the complaint will be dismissed. The decision of the OLSC is final.

NSW Civil and Administrative Tribunal

If the OLSC, the Law Society Council or the Bar Council is satisfied that there is reasonable likelihood that a lawyer will be found guilty of unsatisfactory professional conduct or professional misconduct (see below), it must refer the barrister, solicitor or conveyancer to the Occupational Division of NCAT (section 300). However, if it is satisfied that there is reasonable likelihood that the lawyer will be found guilty of unsatisfactory professional conduct (but not professional misconduct), the OLSC, Law Society Council or the Bar Council may instead, among other things:

• caution the lawyer
• reprimand the lawyer
• impose a practising certificate condition (section 299).

If NCAT finds the lawyer guilty of either professional misconduct or unsatisfactory professional conduct, it can impose a range of penalties ranging from striking the lawyer’s name from the Roll of Legal Practitioners to attending a nominated course of legal education and paying a fine (section 302).

In consumer matters, a compensation order can also be made, either by the OLSC, the Law Society Council, Bar Council or NCAT, where loss has been suffered by a complainant because of the conduct the subject of a complaint. A compensation order can only be made up to an amount of $25,000, except when it is made by NCAT and where both the complainant and lawyer agree (section 308(2)).

The prerequisites for a compensation order are that, the complainant suffered loss because of the conduct concerned, and it is in the interests of justice that the order be made. A compensation order cannot be made where the complainant has received or is entitled to receive compensation under an order that has been made by a court (section 309).

Negligence

If your lawyer has been negligent in handling your case and caused you financial loss or damage, you may decide to take legal action in the courts to claim compensation. Negligence can involve a wide range of possible action (or lack of action) which will vary across situations. Generally, you will need to consult another lawyer for advice before suing a lawyer.

If the loss a client has been caused is less than $40,000, the dispute can be taken to the Consumer and Commercial Division of NCAT, which deals with a range of consumer complaints. If the loss is more than $40,000 you will need to take action in the District Court.

All solicitors are required to have compulsory professional indemnity insurance against claims of negligence, which is taken out by the Law Society through a company called LawCover. Barristers cannot be sued for negligence in the conduct of a court case, but they can be sued for other areas of their work.

Although some forms of professional negligence might also be considered to be unsatisfactory professional conduct or professional misconduct, it is not always the case that negligent conduct breaches the standards under the LPUL. Only a very few cases of professional negligence will amount to professional misconduct or unsatisfactory professional conduct.

The courts and the tribunal have decided, that for a lawyer's conduct to attract disciplinary action, the conduct must go beyond ‘mere carelessness’ or ‘mere negligence’. For example, a lawyer who doesn’t know that a contract for the sale of land must be stamped before it can registered shows a lack of professional competence and diligence and may be open to disciplinary proceedings. On the other hand, a lawyer who does know that a contract needs to be stamped but makes a simple mistake in the calculation of the amount of stamp duty paid is probably guilty of mere negligence but not of a breach of the Act. This is because no more than mere negligence or mere carelessness has occurred.

For this reason, very few complaints of negligence against lawyers result in disciplinary action being taken against the lawyer.

What type of conduct?

Unsatisfactory professional conduct is defined under the LPUL to include ‘conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer' (section 296).

Professional misconduct is defined under the LPUL as unsatisfactory professional conduct which involves a substantial or consistent failure to reach or maintain a reasonable standards of competence and diligence, or conduct that would justify a finding that the lawyer is not a fit and proper person to engage in law practice. The behaviour must be serious, grave and weighty. It is distinguished from unsatisfactory professional conduct in that it is more serious (section 297).

Case study: professional misconduct

Mr Nikolaidis had been found guilty of creating a false letter to a client, which appeared to be a copy of an agreement about fees. The document was intended to create the impression that it was genuine which would be prejudicial to the client. At the time the document was created, a costs assessor had been appointed by the Supreme Court to assess the contested costs. The assessor was intended to find the letter (as he did) and to act on it in the assessment.

In a later decision, the Court of Appeal declared Mr Nikolaidis guilty of professional misconduct and found that he was not a fit and proper person to remain on the Roll of Local Lawyers of the Supreme Court of New South Wales. The Court referred to sections 25 and 42 of the (then applicable) Legal Profession Act 2004(NSW) which deal with the ‘suitability matters’ for admission and for the issuing of a practising certificate. The Court noted that section 9 of the Act defined ‘suitability matters’ to include ‘whether a person has been convicted of an offence ... and, if so, the nature of the offence, how long ago the offence was committed and the person’s age when the offence was committed’.

The Court also made the declarations based on the evidence received in the agreed the statement of facts and an affidavit of the Prothonotary. The Court stated:

‘The evidence here and the agreed facts reveal that the respondent engaged in a deliberate and planned course of action involving third parties to deceive a costs assessor appointed by the Supreme Court in order to advance his position against a former client. The remarks of the sentencing judge in relation to the criminality of the respondent were warranted. The conduct does not bear the hallmark of a one-off lapse of judgment not reflective of underlying character. The conduct reflects deeply upon the respondent. It reveals a willingness to engage in dishonest conduct and a willingness to undertake it in a planned fashion. The matter is made worse by involving a trusted employee and by the conduct being part of an attempt to disadvantage a former client by deceiving someone appointed by the Court to carry out a function under the Rules.’

Prothonotary of the Supreme Court of NSW v Nikolaidis[2010] NSWCA 73; available at here.

Case study: solicitor cautioned

After an acrimonious relationship breakdown, a client engaged a solicitor to negotiate with the former spouse about how their property should be divided. The client wanted the solicitor to demand certain money and property from the client’s former spouse, otherwise the client would report the former spouse to the police for theft. The solicitor wrote to the former spouse and stated, ‘To resolve these matters, our client proposed that you pay $20,000, should you not agree, I have been instructed to proceed with making a complaint to the police and you will be charged. This will result in a criminal record which may impact on your earning capacity’. The former spouse received this letter and made a complaint to the Legal Services Commissioner.

The (then applicable) Solicitors’ Rule 34.3 (now section 34 of the Legal Profession Uniform Law Australia Solicitors' Conduct Rules 2015) prohibits a solicitor threatening the institution of criminal proceedings, in default of a person satisfying a concurrent civil liability. The criminal and civil jurisdictions have a very distinct and separate purpose in our legal system. To threaten the institution of criminal proceedings in default of someone satisfying a concurrent civil liability shows a fundamental misunderstanding of the objectives of both. The civil jurisdiction involves a dispute between two or more parties and the primary remedy is monetary compensation. The criminal jurisdiction involves conduct by a person that the State has deemed to be of such relative seriousness that it can involve consideration of imprisonment. It follows that only law enforcement and criminal prosecution authorities can make a decision on whether to institute criminal proceedings. It is inappropriate to use the criminal jurisdiction as a form of leverage for a civil purpose, hence the reason why this conduct is expressly forbidden by Solicitors’ Rule 34.2 and 34.3.

When the OLSC sought a response from the solicitor, the solicitor stated that they let the emotion of their client cloud their professional judgment when drafting the letter. The solicitor accepted the conduct was wrong and in breach of the Solicitors’ Rules and drafted a written apology to the former spouse.

When deciding on an appropriate penalty, the Commissioner took into account the solicitor’s admission and accepted the solicitor’s contrition as genuine. The Commissioner decided to caution the solicitor.

The Office of the Legal Services Commissioner, Annual Report 2009-2010