Complaint Process
We suggest that you first try to resolve your complaint about a solicitor or a barrister by talking to, or writing to the practitioner. However, if you have already taken such action, or you feel that talking or writing to the practitioner is inappropriate, then we suggest that:
1. you telephone our inquiry line on (02) 9377 1800 or toll free 1800 242 958 to discuss the complaint with OLSC staff; and
2.if appropriate, you complete and lodge with the OLSC a Complaint Form, or forward to us a letter of complaint.
The OLSC will usually only accept complaints about conduct which has occurred within the last three (3) years. However, if you would like to complain about a practitioner’s conduct which occurred more than three years ago, you must explain to the OLSC your reasons for your delay in making the complaint and why you think it is in the public interest for the OLSC to pursue the complaint.
Prior to commencing an investigation, or during an investigation, a complaint may, under Section 511 of the Legal Profession Act 2004, be summarily dismissed by the Commissioner (or the Councils to which it is referred for investigation), if:
(a)further information about the complaint is not given as required by the Commissioner or Council;
(b)the complaint or further information is not verified as required by the Commissioner or Council;
(c)the conduct complained of occurred more than 3 years ago;
(d)the conduct has been subject of a previous complaint or another complaint;
(e)it is in the public interst to dismiss the complaint;
(f)the practitioner's name has already been removed from the Roll; or
(g)it is vexatious, misconceived, frivolous or lacking in substance.
Common questions and answers about the complaint process, include:
Who can I make a complaint about?
Is there a time limit in which I need to lodge a complaint?
How do I lodge a formal complaint?
What happens after my complaint is received?
What hapens if the OLSC refers my complaint to the Professional Association?
What is the distinction between a consumer dispute and an investigation of misconduct?
How long does it take to finalise a complaint?
What happens during an investigation?
What determination can the Legal Services Commissioner make after investigating a complaint?
Can the OLSC award compensation?
Is there a time limit in which to request a compensation order?
Can I withdraw my complaint?
What if I am unhappy with a decision of the investigation?
Who can I make a complaint about?
The OLSC can only accept complaints about individual solicitors and barristers in NSW. We cannot take complaints about law firms. Complaints about para-legals, law clerks and individuals practising without a certificate should be forwarded to the Law Society of NSW.
We cannot take complaints about judges or magistrates. Furthermore, complaints against lawyers acting as arbitrators or mediators can only be dealt with when the conduct complained of is conduct which cannot be appealed (eg gross delay).
Is there a time limit in which I need to lodge a complaint?
A complaint must be lodged within three (3) years of the conduct that is alleged to have occurred. However, the Commissioner may accept a complaint "out of time" if he considers:
- it is just and fair to do so having regard to the delay and the reason for that delay; or
- the complaint concerns an allegation of professional misconduct and it is in the public interest to investigate the complaint.
A copy of the complaint will usually be forwarded to the practitioner to seek the practitioner’s submissions as to whether the Commissioner should accept the complaint out of time. The Commissioner will take these submissions into consideration when making a final determination.
How do I lodge a formal complaint?
You should first telephone the OLSC and speak to one of our inquiry staff on (02) 9377 1800 or toll free 1800 242 958 before submitting a formal complaint. The inquiry line staff will let you know whether the OLSC is the appropriate body to investigate your complaint, and if necessary, assist you in lodging a formal complaint.
To lodge a complaint, please complete and sign a Complaint Form or simply write to us. You will need to identify the practitioner about whom you wish to complain. If you are making a complaint on behalf of another person, such as a relative or friend, you will need to tell us who you are making the complaint for.
With your complaint you will need to provide evidence of the practitioner’s wrong-doing. For example, include a copy of a bill that you think is unfair or a letter that includes a significant mistake. Please attach photocopies of any relevant documents. Do not send originals.
What happens after my complaint is received?
When new complaints are received by the OLSC they are assessed by senior staff. After an initial assessment has been made, an acknowledgment letter will be sent to you informing you that your complaint has been received.
If the complaint is regarded as a consumer dispute, the OLSC staff member allocated to your complaint will try to resolve the dispute. If, however, the complaint raises serious issues with respect to a practitioner's conduct, the complaint may be investigated by the OLSC or referred to the Law Society or the Bar Association for investigation. In such case, the OLSC will write to you advising that your complaint has been referred to the appropriate body for investigation.
What happens if the OLSC refers my complaint to the Professional Association?
Once your complaint is received by the professional body eg Law Society, you should receive correspondence from them advising you of their file number and contact details. The OLSC monitors all investigations by the Law Society and the Bar Association and the professional body provides regular updates about your complaint’s progress and determination to the OLSC.
What is the distinction between a consumer dispute and an investigation of misconduct?
Consumer disputes are disputes between legal practitioners and users of legal services. Examples of “consumer disputes” are complaints about poor communication, costs, mistakes, delays, handling of documents and poor service. Consumer disputes do not involve “professional misconduct” or “unsatisfactory professional conduct” as defined by Section 496 of the Legal Profession Act 2004.
The OLSC has the power to resolve consumer disputes by way of mediation under Part 4.3 of the Legal Profession Act 2004. Mediation & Investigation Officers of the OLSC, who are trained in mediation, use a range of informal dispute resolution processes to resolve the majority of consumer disputes received by the OLSC.
The Commissioner may direct a legal practitioner to participate in the mediation process.
An investigation is conducted where a complaint includes evidence that a legal practitioner might have breached the rules with respect to professional conduct. Some investigations are referred to the Law Society or the Bar Association. The balance are handled by OLSC staff.
After an investigation, a small number of complaints are referred to the Administrative Decisions Tribunal for more serious disciplinary action against a practitioner. Such referrals can only occur where there is a reasonable likelihood that the Tribunal will find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct.
How long does it take to finalise a complaint?
The OLSC receives approximately 3,000 written complaints each year. Of the complaints handled, half are finalised within three (3) months but sometimes matters can take longer.
There are many reasons for delays, for example:
- waiting for people to respond to our letters and phone calls
- seeking further information from both sides
- ongoing court proceedings which must first be finalised
Investigations generally take longer than consumer disputes. In certain circumstances an investigation may take many months. The process is quicker and easier if the complainant provides full details of all relevant aspects of the complaint at the beginning and responds promptly to OLSC inquiries.
If your complaint has been referred to the professional body (Law Society or the Bar Association) for investigation, the professional body attempts to conduct your investigation as expeditiously as possible. The OLSC plays a monitoring role during the investigation process, is regularly informed of progress and advised of the professional body’s determination of your complaint.
What happens during an investigation?
The aim of the investigation process is to gather information and evidence to determine whether there is a reasonable likelihood that the practitioner will be found guilty by the Tribunal of either professional misconduct or unsatisfactory professional conduct.
During an investigation the Commissioner, the Law Society or the Bar Association may require written information and/or documentation from the legal practitioner, and the practitioner must cooperate and assist with the investigation of the complaint. The submissions of the practitioner and complainant will usually be forwarded to each other for comment. Face-to-face interviews may be required.
A small number of complaints are referred to the Administrative Decisions Tribunal for disciplinary action against the practitioner. Such referrals can only occur if there is a reasonable likelihood that the Tribunal will find the practitioner guilty of either unsatisfactory professional conduct or professional misconduct, as defined by the Legal Profession Act 2004.
If the complaint cannot be resolved and there is not enough evidence for disciplinary action, the complaint must be dismissed.
What determination can the Legal Services Commissioner make after investigating a complaint?
Refer to Disciplinary Action.
Can the OLSC award compensation?
The OLSC can award compensation in certain circumstances up to a maximum sum of $10,000.00. Those circumstances are where:
- the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty of unsatisfactory professional conduct by the Tribunal;
- the complainant has suffered a direct loss as a result of the conduct complained of;
- the complainant has not received and is not entitled to compensation from another source (eg from a court or from the Fidelity Fund); and
- it is just and fair to order compensation.
Additionally, a complainant who has suffered a loss because of a practitioner’s conduct may request the OLSC to seek a compensation order in the Tribunal if the case is prosecuted.
A request for compensation should be made in the original complaint and must be made in writing to the Commissioner before the disposal of the complaint. The complainant will also need to describe and quantify the loss they have suffered.
Under Section 573(1) of the Legal Profession Act 2004, the Tribunal may grant a compensation order of up to $25,000 where:
- the lawyer is found guilty of unsatisfactory professional conduct or professional misconduct; and
- the complainant has suffered a loss as a result of that conduct, and
- the complainant has not received or is not entitled to receive compensation from a court, or from the Fidelity Fund.
Awards of compensation by the Tribunal are relatively rare.
Is there a time limit in which to request a compensation order?
A request for a compensation order may only be made within 6 years after the conduct that caused the loss is alleged to have occurred.
Can I withdraw my complaint?
Yes. The withdrawal should be made in writing to the Commissioner or, if appropriate, the organisation to which the complaint was referred for investigation. However, even if the complainant has withdrawn their complaint, the Commissioner or the Law Society or the Bar Association may decide to investigate issues raised by the complaint in any event, when those issues involve questions of professional misconduct and it is therefore in the public interest to pursue the investigation.
What if I am unhappy with the decision of the investigation?
If the Law Society or the Bar Association makes a decision to dismiss a complaint or reprimands the practitioner, a complainant may seek a review of the decision by the OLSC. However, if the initial investigation was conducted by the OLSC, the Commissioner’s decision is final and the only avenue of appeal is through court proceedings alleging that the Commissioner’s decision was not made in good faith.
|
|
