Types of Complaints

The Uniform Law empowers the Office of the NSW Legal Services Commissioner (OLSC) to assess complaints about the conduct of solicitors and barristers as either "consumer matters" or "disciplinary matters."

Disciplinary Complaints

These are complaints that allege conduct that, if established, would amount to unsatisfactory professional conduct and professional misconduct.

Unsatisfactory Professional Conduct

Unsatisfactory professional conduct is defined under section 296 of the Uniform Law as "conduct (whether consisting of an act or omission) occurring in connection with the practice of law 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".

Conduct that may be capable of being unsatisfactory professional conduct includes:

• Threatening or abusive behaviour
• Failure to comply with an undertaking
• Poor advice and representation
• Serious delay
• Non-disclosure of costs
• Breach of the Uniform Law Australian Solicitors’ Conduct Rules 2015

Professional Misconduct

Professional misconduct is defined under section 297 of the Uniform Law as either "unsatisfactory professional conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard or competence and diligence or conduct occurring in connection with the practice of law or otherwise that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice".

Conduct that may be capable of being professional misconduct includes:

• Gross overcharging
• Conflicts of interest
• Acting contrary to instructions
• Misleading or dishonest conduct in or outside court
• Misappropriation of trust money

Professional misconduct can also include conduct outside the practice of law for example being convicted of a serious criminal offence, a tax offence or an offence involving dishonesty or being disqualified from managing or being involved in the management of a corporation under the Corporations Act.

Consumer complaints

A consumer matter is a complaint about a lawyer or law practice that relates to the provision of legal services. They are complaints that do not involve issues of “unsatisfactory professional conduct” or “professional misconduct.” In a complaint that is a consumer matter, the OLSC can assist the parties to come to a resolution regarding the issues contained in the complaint.

A consumer matter may be about:

• Delays
• Costs
• Poor communication or rudeness
• Release of a client's documents or property (liens)

Costs complaints

Complaints about legal costs are known as costs disputes.

A costs dispute is a consumer matter involving a dispute about legal costs payable on a lawyer-client basis where the dispute is between a lawyer or law practice and a person who is charged with those legal costs or is liable to pay those legal costs (other than under a court or tribunal order for costs), whether as a client of the lawyer or law practice or as a third party payer.

Our role in dealing with a costs dispute is to try and help you and your lawyer or the law practice resolve the dispute. Generally, we can only deal with a costs dispute if:

• The total bill for legal costs is less than $185,460, or
• The total bill for legal costs equals or is more than $185,460 but the total amount in dispute is less than $18,550. Please call us on (02) 9377 1800 if you wish to discuss these circumstances

A complaint about costs must also be made within 60 days of the date that the costs become payable or, if you requested and received an itemised bill, within 30 days after the request was complied with.

In some circumstances, we can deal with a costs dispute outside these time frames if you have lodged your complaint within four months after the 60 or 30 day time limit and you have provided a sufficient reason for the delay in making your complaint. The time limit cannot be extended if the lawyer has issued proceedings to sue you for the unpaid costs. Such proceedings may also prevent us from further dealing with your complaint.

If the costs dispute is unable to be resolved, the NSW Legal Services Commissioner will only be able to make a binding determination about the costs in circumstances where the amount in dispute is less than $18,550.00.

What is the difference between a consumer complaint and a disciplinary complaint?

Consumer complaints do not involve an issue of unsatisfactory professional conduct or professional misconduct.

Disciplinary complaints raise issues of unsatisfactory professional conduct or professional misconduct.

A complaint may involve a consumer matter and an issue of unsatisfactory professional conduct or professional misconduct (disciplinary matter).

When will negligence be a disciplinary complaint?

The Tribunal and superior courts have determined that not all negligent acts of a lawyer amount to unsatisfactory professional conduct or professional misconduct warranting disciplinary action.  For example:

• A lawyer who does not know that a contract for the sale of land must be stamped before it can be registered shows a lack of professional competence and diligence.  This could lead to disciplinary action.
• A lawyer might know that a contract needs to be stamped but makes a simple mistake when calculating the amount of stamp duty due.  This may be negligent - but not a breach which would lead to disciplinary action.

The dividing line between acts that may be negligent but not unsatisfactory professional conduct or professional misconduct is not clear.  In the experience of the OLSC, very few complaints of negligence amount to unsatisfactory professional conduct or professional misconduct.

Our fact sheet on Negligence provides more information