Types of complaints
The
Legal Profession Uniform Law (NSW) 2014 (LPUL) 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."
Select a link below for more information about the types of complaints that the OLSC can assess.
Consumer matters
Consumer matters involve complaints about the conduct of a solicitor or a barrister which do not involve issues of "unsatisfactory professional conduct" or "professional misconduct", and are assessed at being capable of resolution.
A consumer matter may be about:
- Delays
- Costs
- Poor communication or rudeness
- Release of a client's documents or property (liens)
What is a disciplinary matter?
Disciplinary matters concerning solicitors or barristers are those capable of amounting to "unsatisfactory professional conduct" or "professional misconduct".
What is unsatisfactory professional conduct?
Unsatisfactory professional conduct is defined under the LPUL 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
- Minor breach of the Solicitors Conduct or Practice Rules or confidentiality
What is professional misconduct?
Professional misconduct is defined under the LPUL 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 happening 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 eg 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.
What are the differences between a consumer matter and a disciplinary matter?
Consumer matters do not involve an issue of unsatisfactory professional conduct or professional misconduct.
Disciplinary matters 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.
When will negligence be a disciplinary matter?
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 [PDF, 86Kb] provides more information.