Information for Lawyers
The Office of the NSW Legal Services Commissioner takes an active role in working with lawyers to resolve minor complaints. We also offer guidance and support to lawyers in managing the day to day management of their practice. Equally important to the OLSC is for lawyers to be aware of the issues that can lead to potential mental health issues and also to raise awareness of techniques available to positively deal with health issues for lawyers and their peers. The Minds Count Foundation (formerly Tristan Jepson Memorial Foundation) is a Foundation with a focus on reducing the work related physiological ill health within the legal environment, promoting mental health and wellbeing. The Foundation has produced best practice guidelines for the legal profession and the OLSC is a signatory to those guidelines. We encourage lawyers to read them and proactively implement them in the day to day running of their practice. The OLSC shows its commitment to such an important cause by providing in kind support to the Tristan Jepson Memorial Foundation.
When a complaint is made about a lawyer
Any complaint about a lawyer, whether justified or not, provides an opportunity to improve a professional relationship. By responding to the complaint constructively and promptly the lawyer can regain and reinforce the client's confidence and loyalty but also learn how to work with other clients better.
Best practice methods for dealing with complaints
The NSW Legal Services Commissioner (LSC) suggests the following best practice methods for lawyers in dealing with complaints:
- Establish practice management systems that enable efficient responses within the practice to queries and complaints.
- When notified by the LSC that a client is dissatisfied with the legal services provided, take appropriate steps to resolve the client's concerns directly with the assistance of the Office of the NSW Legal Services Commissioner (OLSC) where necessary.
- Be flexible in negotiating the resolution of a costs dispute or consumer matter. Co-operate with the OLSC in finding ways to satisfy client's concerns rather than giving clients further grounds for grievance.
- Don't freeze - doing nothing will only make things worse.
- If referred to the NSW Civil and Administrative Tribunal (NCAT) - Occupational Division (Disciplinary Tribunal) review all aspects of the incident/s that gave rise to the allegations and prepare to demonstrate your position or that a further breach of the required standards is unlikely.
- Use the experience of a complaint in developing new strategies for establishing and maintaining effective client relationships and practice management systems.
How can a lawyer minimise complaints about their office?
To minimise complaints about your practice, you should consider:
- Effective file tracking and checklists for active files, coupled with regular communication to clients. These mechanisms can enable lawyers to ensure that clients understand the progress and to respond promptly to queries about any delays.
- Clear costs disclosure (as required under the Legal Profession Uniform Law). A clear costs disclosure process can enable lawyers to avoid disputes over the payment of accounts.
- Regular communication with clients to ensure that clients receive essential information. Regular communication can assist lawyers understand the client's values and priorities and provide the client with what they see as high quality legal services in accordance with their instructions.
Does the OLSC encourage complainants to resolve their concerns with their lawyer?
Yes. The OLSC encourages complainants to attempt to resolve their concerns directly with lawyers personally.
Sometimes clients will complain to the OLSC rather than to their lawyer, perhaps because the client feels the lawyer is unresponsive or unapproachable. If this occurs, the OLSC will usually suggest the complainant attempt to resolve the matter direct with their lawyer first. This presents the lawyer with a further opportunity to resolve the issue with the client directly, for example, by explaining an unavoidable delay or by clarifying cost items that the client has not understood.
The OLSC is available to assist lawyers in this process.
How does the OLSC assist lawyers in resolving costs disputes and consumer matters?
The OLSC attempts to resolve costs disputes and consumer matters complaints through informal resolution processes. Success depends on both the client and the lawyer being willing to cooperate in finding a satisfactory solution to the problem. When the lawyer accepts that there is value in reaching some agreement with the complainant, outcomes might include:
- The reduction of an account
- A plan for payment by instalments
- A timetable for action
- Work performed without charge
- An explanation of what has taken place
- An apology from the lawyer or the client
- Commitment by the client to a particular course of action
The longer term outcome can be client satisfaction and improvements in the lawyer's client management system. In appropriate cases, LSC can make a determination in a consumer matter, including [see list in LPUL s290].
How should a lawyer respond when a complaint is made?
The OLSC assumes that a complaint is an indication that there is a problem from the complainant's perspective, not that the lawyer has necessarily acted inappropriately. There is therefore no need for lawyers to be defensive when contacted by the OLSC. On the contrary, it is in their interests to overcome the natural urge to ignore the issue or deny the problem in the hope that it will go away.
What should a lawyer do if issued with a Section 371 Notice?
A lawyer must respond to a Section 371 Notice issued by the OLSC seeking information relevant to a complaint. Failure to respond within a reasonable time can escalate into a complaint initiated by the LSC regarding the Section 371 breach and obstructing/misleading an investigation. This can be unnecessarily expensive and time consuming for all parties.
What happens if allegations of unsatisfactory professional conduct or professional misconduct are substantiated?
Allegations of unsatisfactory professional conduct or professional misconduct are investigated by the LSC or referred to the Councils of the Law Society of New South Wales or the New South Wales Bar Association. If the allegations are substantiated, the lawyer can be subject to disciplinary action.
What should a lawyer do if referred to the NSW Civil and Administrative Tribunal (NCAT) - Occupational Division?
A lawyer whose conduct has been referred to the NSW Civil and Administrative Tribunal (NCAT) - Occupational Division should seek assistance in presenting their case and in improving their performance. One appropriate source of assistance for solicitors is the Law Society of New South Wales Professional Conduct Advisory Panel (formerly Senior Solicitors Scheme).
What should a lawyer do once a complaint has been finalised?
After a complaint has been finalised, the lawyer and other members of the practice should review the policies and procedures implemented within the practice. In addition, lawyers should use feedback from clients to help identify the perceived strengths and shortcomings of the practice. This can be the basis of a program of continuous improvement which will reduce the likelihood of further complaints.
What makes a successful practice?
The OLSC assists lawyers in the development of strategies for building successful client relationships, which are the basis of a successful practice.