Ethics Check for Lawyers Series – What to do if you receive a complaint

Given the sheer number of disciplinary complaints that are made against solicitors and barristers every year, it would not be surprising if almost all legal practitioners have the unfortunate experience of receiving a complaint at some point in their legal career. 

Dealing with a complaint can be a major source of stress and anxiety, not to mention a significant distraction from day-to day practice. In this bulletin we briefly explore the complaints process and the resources on hand to help you.

Which bodies investigate disciplinary complaints?

The majority of legal practitioners (namely those registered in New South Wales, Victoria and Western Australia) are now governed by the Legal Profession Uniform Law (Uniform Law) which contains provisions relating to the complaints process.

In New South Wales, all complaints are received by the Office of the Legal Services Commissioner (OLSC). The OLSC investigates some complaints and others are delegated by the OLSC to the Law Society of NSW or the Council of the NSW Bar Association for investigation. These regulatory authorities have quite wide investigation powers, including the power to compel the production of documents and provision of information.  

Common types of complaints

According to the OLSC’s annual report for 2021-2022, the most commonly made complaints in NSW were:

• poor communication

• negligence

• overcharging

Other common types of complaints include:

• delay or failure to pay counsel’s fees

• discourtesy in verbal or written communications

• misappropriation of trust funds or other trust money irregularities

• acting in conflict of interest

• dishonesty/ misleading conduct

Steps in the complaint process

In summary the complaints process under the Uniform Law involves:

• The legal practitioner being notified of the complaint and being given an opportunity to provide submissions in response to it.

• The matter being investigated and the legal practitioner being notified of the outcome.

• If disciplinary action is proposed then the legal practitioner is given another opportunity to make submissions before a final determination is made.

The outcomes can include:

• The complaint being closed.

• Action being taken under s299 of the Uniform Law to make a finding of unsatisfactory professional conduct and to issue, for example, a reprimand, caution, fine, requirement for an apology and/or requirement for further education.

• For more serious conduct, proceedings being initiated against the legal practitioner in the Tribunal. The most serious sanction in the Tribunal is a recommendation for removal of the legal practitioner’s name from the roll.

Immediate suspension

It is important to note that there is a power to immediately suspend a legal practitioner from practice, whether or not an investigation of a complaint has begun or been completed if it is considered that immediate suspension is warranted in the public interest on the grounds of the seriousness of the alleged conduct.

Duty to assist

Legal practitioners have a duty to assist the regulatory authority with the investigation of complaints and must respond to complaints fully and frankly and in a timely manner. Failure to do so can itself result in disciplinary action. It is therefore essential not to procrastinate or ignore the complaint.

It is also important to note that the OLSC, Law Society or Bar Council may extend the scope of a complaint investigation so as to include conduct of the legal practitioner that has been revealed during the complaint investigation.  

Client privilege when responding to complaints

If a client complains about a legal practitioner, the client is taken to have waived privilege or the benefit of any duty of confidentiality to enable the law practice or lawyer to disclose to the OLSC, Law Society or Bar Council (as the case may be) any information necessary for investigating and dealing with the complaint. Care must be taken if a third party has complained because there is no such waiver in those circumstances.

The process is protective not punitive

When responding to a complaint it is important to keep in mind that the disciplinary process is concerned with protecting the public and the reputation of the profession including the public’s confidence in the high standards of the profession. It is not concerned with punishing the legal practitioner, even though it may feel that way. 

Resources available to help you navigate the process

Some of the resources available include:

• Professional Conduct Advisory Panel

• Professional Support Unit at the Law Society of NSW

• For confidential psychological counselling:

  • Solicitor Outreach Service (for solicitors) https://www.lawsociety.com.au/sos or

  • BarCare (for barristers) https://nswbar.asn.au/practice-support/wellbeing

Conclusion

If you receive a complaint, it is important that you do not ignore it or procrastinate as matters can soon escalate. It is also important to remember your audience and not be retaliatory. Give some thought to whether you can be objective in acting for yourself. Use the opportunity to reflect and consider whether things could have been done better. Consider obtaining independent advice and developing and implementing a strategy from the outset.

If you have any questions or require any assistance please do not hesitate to contact Jennifer Shaw. She is a panel member of the Law Society’s Professional Conduct Advisory Panel and she has in-depth experience in acting for and advising solicitors and barristers who are subject to disciplinary complaints, show cause events, suspensions and related proceedings.

Author: Jennifer Shaw