Office of the NSW Legal Services Commissioner

FAQs

Select a question from the list below for further information about the role and practices of the Office of the NSW Legal Services Commissioner.

     

    How independent are you?

    The Office of the NSW Legal Services Commissioner (OLSC) is an independent statutory authority. The decisions of the NSW Legal Services Commissioner about complaints are not subject to review by the Attorney General, and Minister for the Prevention of Domestic Violence, the Secretary of the Department of Communities & Justice or Parliament. 

    The OLSC is funded by the Public Purpose Fund (PPF) and not from State Treasury or Commonwealth taxation revenue. The PPF is established from interest on law practices' Trust Funds.

    Each complaint or inquiry is dealt with entirely on its merits. Staff members are obliged to acknowledge any potential conflict of interest.

    Can I get a quick answer from your inquiry line as to whether or not my lawyer is guilty of misconduct?

    Not generally. We can' t give you this advice as we would first need to receive your complaint in writing and give your lawyer a chance to respond to your allegations. Our staff can talk generally about previous disciplinary decisions by the NSW Civil and Administrative Tribunal (NCAT) - Occupational Division, the NSW Legal Services Commissioner, the Law Society Council or the Bar Council and perhaps indicate the relative seriousness of any alleged misconduct.

    Can I arrange a personal interview?

    Interviews at our office can be organised with OLSC inquiry line staff. However, due to limited time and resources, interviews are generally only arranged for those who have difficulty reading or writing English or have some other problem that causes difficulty lodging a complaint.

    Do you provide interpreters?

    Telephone interpreters can be arranged if necessary. You need to book this through the OLSC. A time can be made for you to come in for an interview with an OLSC staff member who will have a Telephone Interpreter organised, or arrangements can be made over the phone.

    What will happen to my lawyer and my case if I make a complaint?

    Theoretically, there should be no adverse effect for you or your case if you make a complaint to the OLSC about your lawyer. We encourage you to complain if you are aggrieved and will do what we can to promote good relationships between lawyers and clients.

    However, lodging a complaint with us can alter your relationship with your lawyer - especially when you are in the middle of your matter. There have been times when lawyers have stopped acting for clients who have complained - while their matter is in progress - on the grounds they believed the client had lost confidence in them.

    Actions by this Office cannot and do not influence court proceedings or the outcomes of court proceedings.

    Can my lawyer sue me?

    Making genuine complaints about the conduct of a lawyer cannot form the basis of a civil action by the lawyer, such as defamation, as it is made confidentially to this Office.

    Can I make a complaint anonymously?

    The NSW Legal Services Commissioner may accept anonymous information, however s. 267(2(a) of the Legal Profession Uniform Law (NSW) requires that a formal complaint must identify the complainant. If you have concerns regarding the lawyer being notified of your complaint you can discuss these with our staff. 

    How long does it take from the time I lodge a complaint to the time I find out whether or not my lawyer will be disciplined or when my complaint will be resolved?

    We take the first step on complaints within three to six weeks of receiving them. Any urgent matters will be dealt with more promptly.

    Your complaint will either be treated as a disciplinary matter or as a consumer matter, or as a mixed complaint. Complaints will be assessed as consumer matters when it appears that a disciplinary outcome is unlikely and the matter may be capable of an informal resolution facilitated by the OLSC.

    In the 2020-2021 financial year, about 55 per cent of complaints were finalised within three months, with the majority of these being consumer matters. However, investigations can be more complex and usually take about six months to finalise, but sometimes much longer. We cannot guarantee a time frame or make a proper estimate until we have examined all the information from both sides.

    If your complaint has been referred to the professional association (Law Society Council or the Bar Council) for investigation, the professional association attempts to conduct your investigation as expeditiously as possible. The OLSC plays a monitoring role during the investigation process and is regularly informed of progress and advised of the professional association' s determination of your complaint.

    Can my lawyer charge me for the time it takes to answer letters I write in trying to resolve my complaint?

    No. We take the view that lawyer have an obligation to respond to this Office. Any time spent talking to us or writing to us should not be charged to the client who has lodged the complaint.

    What is the difference between "unsatisfactory professional conduct" and "professional misconduct"?

    The Legal Profession Uniform Law (NSW) (LPUL) defines "unsatisfactory professional conduct" as:

    • "Conduct of a lawyer 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".

    The LPUL states that "professional misconduct" includes:

    • Unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence;
    • Conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice;
    • Conduct that is declared to be professional misconduct by any provision of the LPUL 

    The following is capable of constituting unsatisfactory professional conduct or professional misconduct under the LPUL: 

    • A contravention of a provision of the LPUL or the Regulations or Rules;
    • Charging more than a fair and reasonable amount for legal costs;
    • Conduct for which there is a conviction for a serious (criminal) offence, a tax offence or an offence involving dishonesty;
    • Conduct in becoming insolvent;
    • Conduct in becoming disqualified from managing a corporation;
    • Conduct consisting of a failure to comply with the requirements of a notice under the LPUL.

    Additionally, the common law defines professional misconduct to be conduct in pursuit of the practice of law which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency.

    What is the difference between negligence and issues of misconduct?

    A lawyer has a duty to provide professional services with reasonable care and skill. A lawyer who fails to do this may have breached their duty of care to a client and have been negligent. The NSW Civil and Administrative Tribunal (NCAT) - Occupational Division (Disciplinary Tribunal) and superior courts have determined that negligence is a form of unsatisfactory professional conduct or professional misconduct only when it goes beyond "mere carelessness" or "mere negligence". 

    Unsatisfactory professional conduct or professional misconduct can lead to disciplinary action being taken by the NSW Legal Services Commissioner eg a caution or reprimand, or referral to the Disciplinary Tribunal. The purpose of disciplinary action is to protect the public, correct the professional conduct and ensure that breaches do not occur again.

    The dividing line between "mere negligence" or "mere carelessness" and misconduct is not clear. However, in OLSC'S experience, very few complaints of negligence amount to professional misconduct or unsatisfactory professional conduct.  The NSW Commissioner has limited power to order payment of monetary compensation, up to $25,000. However, complainants who want compensation from a lawyer usually have to take private legal action against the lawyer for professional negligence.

    Further information can be found on the OLSC Fact Sheet on Negligence [PDF, 86Kb].

    I think my lawyer made a mistake -  can she/he be disciplined?

    Your lawyer has a duty to provide you with reasonable care and skill in the provision of legal services. Failure to correctly calculate the amount of stamp duty payable would probably be a mistake that would not attract disciplinary action. Failing to know that a contract for the sale of land needs to be stamped before it can be registered, however, may be negligent to the extent that disciplinary action can be taken.

    Compensation is only available from the NSW Civil and Administrative Tribunal (NCAT) - Occupational Division (Disciplinary Tribunal) in cases where the lawyer has been found guilty of unsatisfactory professional conduct (UPC) or professional misconduct (PM) and where you as the client have suffered a direct loss and you can' t receive compensation from another source. (For example, from the Fidelity Fund, Professional Indemnity Insurance or in civil proceedings in court.)

    I think my lawyer has overcharged me, what can I do?

    OLSC will assist the parties in attempting to resolve the costs dispute. If the dispute cannot be resolved, the Commissioner has power, in appropriate cases, to make a determination about costs, including a binding determination specifying the amount payable, up to $14,940 from 1 July 2022.  

    Further information can be found on the OLSC Fact Sheets on Costs Disputes [PDF, 88Kb]​ and Costs Dispute Resolution [PDF, 86Kb].

    What is a lien?

    It is a lawyer' s right to keep any property lodged with the lawyer until you have paid all their fees and relevant expenses (disbursements).

    Lawyers can claim a lien over documents and property that you gave them while they were representing you (in this or any other matter), including things for which you have paid. They can also claim a lien over money they are holding on your behalf.

    Your lawyer can' t claim a lien over title deeds of your property, once the property has passed to another owner.

    Files or documents can be released from a lien when you pay the costs.

    The NSW Legal Services Commissioner can discharge a lien in respect of specified documents but cannot order the documents to be delivered. Solicitors can be ordered to deliver documents by the Supreme Court.

    Further information can be found on the OLSC Fact Sheet on Liens [PDF, 55Kb].

    Why can't I always get everything from my file?

    Most documents in a file belong to the client but some belong to the lawyer. Ownership depends on when the document came into existence and for what purpose.

    Documents that the lawyer prepared for their own use and for which you are not expected to pay, belong to the lawyer. Examples of this include notes taken in conference to aid a lawyer' s memory.

    A lawyer must return documents to which the client is entitled or keep them for seven years.

    Further information can be found on the OLSC Fact Sheet on File Ownership, [PDF, 77Kb].

    My lawyer pressured me into settling and I regret it.  What can I do?

    Settlement decisions are final unless an appeal to the court is possible.

    Your lawyer should not apply undue pressure on you to settle. Your lawyer cannot make the final decision to settle. It is you who decides whether or not to settle or to pursue court action. However, if you choose to go against the advice of your lawyer, they may decide not to continue acting for you.

    There are certain things that your lawyer must consider when advising you about settlement.

    Accepting a settlement offer can sometimes be advantageous because it reduces legal costs that would be incurred if the case went to hearing and it can take the risk out of a case, enabling you to see exactly how much you will receive after your legal costs and disbursements are paid.

    Sometimes it is not in your interests to settle, for example when the amount being offered is too small.

    A lawyer advises you to settle or not based on the strengths of your case, the risks you face if the case goes to hearing and the range of damages the court is likely to award you. A lawyer is obliged to fully inform you of their opinion. You may feel pressured by a lawyer making efforts to make their opinions known.

    Further information can be found on the OLSC Fact Sheet on Settlement [PDF, 81Kb].

    If I have a complaint about a judge or a magistrate, where do I go?

    If you have a complaint about a judicial officer such as a Judge or Associate Judge of the Supreme Court, a Judge of the Land and Environment Court, or District Court, or a Magistrate of the Local Court, you will need to contact the Judicial Commission of NSW.

    If I have a complaint about a licensed conveyancer, where do I go?

    Complaints about licensed conveyancers who are not lawyers should be referred to NSW Fair Trading.

    If your complaint is about a lawyer who acted on a conveyance, you should contact the OLSC.

    If I have a complaint about a Migration Agent, where do I go?

    Complaints about migration agents who are not lawyers should be referred to the Office of the Migrations Agents Registration Authority. If your complaint is about a lawyer who acted as a migration agent you should contact the OLSC.