Last Updated 19 December 2016
Complaints against lawyers are often the result of miscommunication or a lack of communication between the client and the lawyer, although some complaints involve serious professional conduct breaches. There are a number of ways to complain about a lawyer.
In the first instance, a complaint about a solicitor should usually be raised with the solicitor directly or with the firm in which they work. The costs agreement will list the name of the person at the firm to be contacted about such matters. This allows for the matter to be sorted out at the earliest opportunity. Where possible, a complaint should be made in writing and should specify the reasons why a person is unhappy with the services provided. It should also itemise the costs or outlays that are in dispute.
Where the complaint is one in which the solicitor is alleged to have been dishonest, it may not be appropriate to raise the matter with the solicitor directly. In such circumstances the matter should be promptly referred to the Legal Services Commission (LSC) for assistance and investigation. Criminal conduct should be reported to the police.
Where a direct approach to the solicitor or firm fails, a client should contact the LSC. A complaint about a barrister also can be made directly to the LSC.
Complaints to the Legal Services Commission
All complaints that cannot be resolved directly with the relevant solicitor or law firm should be made to the LSC. Any complaints involving allegations of fraud or dishonesty by a solicitor or barrister should be reported urgently to the commission.
The LSC receives and processes complaints about the conduct of legal practitioners, unlawful operators and law practice employees.
The LSC must assess all complaints lodged (but will dismiss unfounded or baseless complaints), will mediate appropriate consumer disputes and must investigate other conduct complaints. Conduct complaints, if proven, normally would amount to either unsatisfactory professional conduct or professional misconduct. These terms are defined in ch 4 of the Legal Profession Act 2007 (Qld). Unsatisfactory professional conduct includes ‘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 Australian legal practitioner’. Professional misconduct is either unsatisfactory professional conduct that involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, or conduct occurring in connection with providing legal services that would justify a finding that the lawyer is not a fit and proper person to provide legal services.
The Legal Services Commissioner can initiate an investigation of their own accord in cases of possible unsatisfactory professional conduct or professional misconduct. The commissioner also oversees and, where necessary, directs investigations conducted by the Queensland Law Society (QLS) and the Bar Association. They are required to report back to the commissioner, who will then review their findings and recommendations before deciding what action to take on the complaint. Only the commissioner can decide what action to take after investigation.
If, after the initial investigation, the commissioner finds there is a reasonable likelihood of a disciplinary body making a finding against a legal practitioner of unsatisfactory professional conduct or professional misconduct, and it is in the public interest to do so, the commissioner will initiate disciplinary proceedings in one of two forums, either the Legal Practice Committee or, for more serious matters, the Queensland Civil and Administrative Tribunal (QCAT).
Normally complaints must be made within three years of when the relevant conduct occurred. The LSC may accept complaints about conduct that happened more than three years prior if the alleged conduct would amount to professional misconduct, or if there are good reasons for the delay in making the complaint, and if it is fair and reasonable and in the public interest for the complaint to be investigated.
Any person or entity (including the QLS and Bar Association) concerned about the conduct of a legal practitioner or law practice employee can make a complaint. Complaints normally can only relate to the conduct of individuals in the practice of law, unless the conduct in question demonstrates that someone is not a fit and proper person to remain a legal practitioner.
The LSC cannot accept complaints about government legal officers unless the complaint is made by the chief executive officer of the government department or agency that employs or supervises them, the QLS, the Bar Association of Queensland or another legal practitioner. Complaints against a government legal officer should therefore be made to the head of the relevant department first.
Making a complaint
Under the Legal Profession Act, a complaint to the LSC must be made in writing and must be signed. There is no fee for making a complaint, and a solicitor cannot bill a client for the time it takes to respond to a complaint. A complaint form can be obtained from the LSC.
In a written complaint, the person complaining must say who they are and name, if possible, the legal practitioner or law practice employee about whom they are complaining. A complainant needs to describe in as much detail as possible the conduct that is the basis of the complaint. The declaration on the back page of the form must be signed before it is sent, and photocopies of any relevant documentation should be attached.
The LSC can answer questions about the complaints process and can provide you with advice about filling out the form. Complaints can also be made online. The LSC can also arrange telephone interpreters or any other appropriate assistance if required.
The handling of a complaint
The LSC considers all complaints and may ask for further information. If a complaint is accepted, it will be divided into either a consumer dispute or a conduct complaint. In some cases, the commission deals with hybrid complaints, which are a combination of consumer and conduct complaints. This categorisation will determine whether the LSC will try to resolve the matter by mediation or investigation.
In serious cases that later proceed to a hearing before the Legal Practice Committee or QCAT, the person complaining will most likely be required to give evidence by way of a sworn statement (affidavit). A complainant may also be required to give evidence in person at the hearing and to be cross-examined.
Formal disciplinary bodies
The Legal Practice Committee
The role of the Legal Practice Committee is to hear and decide disciplinary applications lodged by the LSC. The committee hears the relevant evidence, decides if the legal practitioner is guilty of unsatisfactory professional conduct and decides the appropriate penalty.
The committee determines less serious cases, which will not end up with the practitioner being struck off the roll or suspended from practice. It also hears and decides disciplinary applications involving the employees of law practices.
The committee of seven comprises a chairperson, two solicitors, two barristers and two laypeople possessing a high level of relevant experience, particularly in the area of consumer protection and other relevant issues.
When hearing and deciding disciplinary responses, three members must participate: the chairperson or deputy chairperson, a solicitor or a barrister and a lay member.
Committee hearings are open to the public unless ordered otherwise due to the nature of the evidence. The committee decides if a legal practitioner is guilty of unsatisfactory professional conduct and whether a law practice employee is guilty of misconduct. Law practice employees found guilty of misconduct can be banned from being employed in legal practices for up to five years. Where a legal practitioner is found to be guilty, the committee can order that the person be publicly reprimanded, be fined, pay compensation and costs, or be allowed to work but be managed and inspected in a particular way in the future.
If parties are dissatisfied with the decision of the committee, they can appeal to QCAT.
The Queensland Civil and Administrative Tribunal
The Queensland Civil and Administrative Tribunal is made up of various appointed tribunal members, which includes judicial members. The president of QCAT is a Supreme Court judge.
A judge of the Supreme Court must be allocated to hear and decide disciplinary applications concerning legal practitioners. In this role, the judge is assisted by a panel, which includes a lay member and a legal member (either a barrister or a solicitor). These panel members (appointed from the practitioners’ panel) and the lay panel sit with QCAT to help hear and decide cases. The lay panel comprises people with a high degree of knowledge and relevant experience. The legal panel is made up of solicitors and barristers with at least five years experience.
Upon application by the LSC, QCAT decides if a legal practitioner is guilty of unsatisfactory professional conduct or professional misconduct.
Tribunal hearings are open to the public unless ordered otherwise. If QCAT finds a practitioner guilty, it can order that the lawyer be struck off (prohibited from practising law), suspended from practice or only be allowed to practise under certain conditions (e.g. in a supervised way). It can also order that the practitioner be publicly reprimanded and/or pay a penalty. The relevant practice of the practitioner may also be ordered to pay compensation. A practitioner who loses a case must also pay the complainant’s and the commissioner’s costs, except in exceptional cases. The Queensland Court of Appeal can hear appeals from QCAT, although strict time limits apply.