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Episode 34 Buy Episode

Managing Complaints against Lawyers

Law as stated: 23 November 2020 What is this? This episode was published and is accurate as at this date.
In this episode, Roger Gimblett from the Office of the Legal Services Commissioner shares his insights on the management of complaints against lawyers, providing suggestions for lawyers on how to manage this process.
Ethics and Professional Responsibility Ethics and Professional Responsibility
23 November 2020
Roger Gimblett
1 hour = 1 CPD point
How does it work?
What area(s) of law does this episode consider?Roger Gimblett, Complaints Manager at the Office of the Legal Services Commissioner, discusses the complaints process at the OLSC and what lawyers can do to avoid having a complaint or disciplinary action made/taken out against them and how best to handle them in the case that one is nevertheless made, meritorious or otherwise.

This episode looks at the Legal Profession Uniform Law 2015 (NSW) and the rules made under it, and the way its provisions are enforced using the disciplinary processes.

Why is this topic relevant?

 

The OLSC receives upwards of 2,500 formal complaints each year, and almost every lawyer will be the subject of a complaint at least once in their professional career – whether the complaint is made by a client, another lawyer, or even another lawyer’s client. It’s important to be aware of the complaints process and the expectations of a solicitor involved in one, so you can be prepared to resolve it quickly and efficiently, and mitigate the stresses that come with it.
What legislation is considered in this episode?The OLSC is an independent statutory authority. Under the Legal Profession Uniform Law 2015 (NSW):

  • anyone has the right to make a complaint against a lawyer;
  • the OLSC must seek to resolve complaints as quickly and as efficiently as possible; and
  • the OLSC can serve solicitors with consumer cautions and notices to respond or produce, even in consumer (i.e. not disciplinary) matters.

Part 5.2 of the Legal Profession Uniform Law 2015 (NSW): covers the complaint process, including who can make a complaint (s 266), the investigation of complaints (division 3), and distinctions between consumer and disciplinary matters.

Section 296 of the LPUL: Defines ‘unsatisfactory professional conduct’, which includes 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.

Section 297 of the LPUL: defines professional misconduct, which 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 and 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.

What are the main points?
  • The role of the Office of the Legal Services Commissioner is to function as co-regulatory body with the purpose of improving and maintaining community satisfaction with the legal services industry.
  • All formal complaints against solicitors or barristers must pass through the OLSC where they will be appraised and either resolved internally or sent to the Law Society Professional Standards Department or to the Bar Association.
  • The OLSC has an inquiry line service which deals with thousands of inquiries a year and is the first point of contact with the Office for many matters before a formal complaint is lodged.
  • The OLSC informs solicitors of any and all complaints concerning them, regardless of the merits of the complaint. The solicitor or barrister in question will always be given the opportunity to respond and is encouraged to respond as quickly as possible.
  • Not every complaint about a solicitor or barrister is made by a client. Under section 266 of the Uniform Law, anyone can make a complaint about a lawyer. Persons other than clients who tend to initiate or co-initiate a complaint include lawyers of opposing parties, self-represented litigants and third parties to a matter.
  • If there is no client-solicitor relationship or exchange of legal services present the OLSC cannot treat the complaint as a consumer matter. It could only possibly be considered if the subject of the complaint is serious enough to raise a disciplinary issue.
  • There are some areas of the law where lawyers are more likely to receive a complaint than others, for example criminal and family matters are more likely to attract complaints. Typically, due to the extended and often emotionally fraught relationships between client, solicitors, and other parties in those areas. However, it is rare for a lawyer to go their whole career without a single complaint, meritorious or otherwise.
What are the practical takeaways?
  • Prevention is always better than a cure. The best way to avoid a complaint being made against you in the first place is to manage your clients’ expectations as best as you can at the outset. Providing a reasonable timeline of events and avoiding the pitfall of overpromising results will help to ensure the client and any other party are in a common understanding for the duration of the relationship.
  • Communication is the number one issue giving rise to complaints against lawyers. While email and instant messaging has revolutionised the legal services industry, it has simultaneously brought about the issue of hasty and sometimes emotionally charged communications between parties. To combat this, it is recommended that lawyers:
    • are mindful of their reliance on these tools; and
    • set a delay send function when sending emails and review text messages prior to sending. This communication is often relied on as evidence in the event of a complaint.
Show Notes 

The Office of the Legal Services Commissioner Annual Report 2019-2020

Guidelines for Dealing with Self-Represented Parties in Civil Proceedings

Equality Before the Law Benchbook – Section 10 – Self-Represented Parties

NCAT: Occupational Division

Hearsay Episode 4 with Jennifer McMillan – ‘Risky Business: Handling Professional Responsibility Complaints and Claims’

OLSC: Online Complaint Portal

David Turner:

 

 

 

 

 

1:00

Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple.

The Office of the Legal Services Commissioner is an independent statutory authority that receives and addresses complaints about solicitors and barristers in New South Wales. The office strives to ensure that lawyers and barristers abide by their ethical and professional obligations when providing services to the public. In doing so, the office raises standards in the legal services industry and improves community satisfaction with the delivery of legal services. The Legal Services Commissioner has the power to both assist in resolving disputes and take disciplinary action arising out of complaints. But it’s considered very rare for a lawyer to have a career in the law without at least one complaint, meritorious or otherwise, made to the office about them. And so it’s important for all of us, both for our observance of our ethical duties and for our own peace of mind, that we understand how the office of the Legal Services Commissioner and its complaint process works. Joining me today on Hearsay is Roger Gimblett, Complaints Manager at the Office of the Legal Services Commissioner to share his insights on the complaints process. Roger thanks so much for joining me today on Hearsay.

Roger Gimblett:Thanks David it’s great to be here.
DT:Now I’d like to start with more of a personal question about your background as a lawyer. Tell me a bit about your intro to practice and how you came to be employed at the OLSC.
RG:

2:00

 

Well I’m originally from New Zealand so I graduated from Otago University in Dunedin and I then worked in private practice for a small firm doing mainly legal aid with criminal law appearances, family law matters so it was a really good introduction to some of the stresses involved in a small general practice. I then went and lived in London for two years and worked out of the law for a West-End Theatre company, of all things, before coming back to live in Sydney and I worked slightly before Trans-Tasman Mutual Recognition at that stage. So I was working basically doing paralegal work for some of the larger firms. which is a really good introduction to that larger firm environment as well. Then I got a job with the private health insurance Ombudsman basically working in dispute resolution in health insurance matters, before I joined the professional standards Department at the Law Society of New South Wales and I was with the Law Society for well over 10 years in the regulatory department doing professional misconduct, unsatisfactory professional conduct matters. And then in 2016 I moved to the Office of the Legal Services Commissioner and obtained my current position, so that’s briefly, you know, quite a few years.
DT:

3:00

It sounds like you’ve had some experience in, well really, the entire regulatory landscape for lawyers in Australia both at the Law Society NSW and at the Office of the Legal Services Commissioner, but I think also interestingly in the environment of a small practice where you’re working with criminal and family law which, as we’ll come to a little later in the episode, presents some unique challenges for dealing with complaints. But I was speaking to another guest earlier today about the value of non-legal skills for lawyers, I’d love to know what you learned at the West End Theatre company that helps you out in your legal career today.
RG:

 

Ah, well we’re all actors, and I think– or frustrated actors, look I don’t know I think, you know, certainly public presentations and things of that nature are important. The West End Theatre company was full of very interesting characters and the law is full of interesting characters and I think, you know, everything is a slice of life and working in the complaints environment, that is also very much a slice of life. So I think the two things are not dissimilar in some ways.
DT:

4:00

Now we’re here today to talk about the complaints process through the Office of the Legal Services Commissioner. Can you give me a brief overview of the steps in the process?
RG:

 

 

 

 

 

5:00

Sure. Well as a lot of those people listening will know, we do have a co-regulatory system in New South Wales but all complaints have to come into the Office of the Legal Services Commissioner. A percentage of those will be shifted out basically to the Law Society Professional Standards Department or to the Bar Association. Often they will be complex matters, matters involving trust account issues and so forth. But really, we are the sort of the start of the process; we offer an inquiry line service that deals with thousands of complaints each year, well, sorry probably thousands of inquiries that could potentially lead to complaints. We don’t take any record of those really. They’re just an informal contact with our office and often that will result in us referring the caller back to the solicitor or to the barrister so that they can resolve the matter themselves. So we get about two and a half thousand formal complaints each year. When a complaint comes into our office it has to be in writing under the provisions of the legislation and we have a sort of team of allocators and they will determine on a preliminary view whether it is a consumer matter which might be capable of resolution and that would include a costs dispute, or whether it does potentially raise issues of unsatisfactory professional conduct or professional misconduct. And we actually have two teams within the Office of the Legal Services Commissioner, one who’s sort of the mediation and investigation team which deals with the sort of consumer matter, cost dispute matters where we hope that we might be able to assist in resolution. And then we have the LIO’s (Legal Investigation Officers) who deal with the potentially disciplinary matters.
DT:

6:00

Now a lot of lawyers are listening, and any members of the community who aren’t lawyers who are listening, might assume that your office really only receives complaints from clients about their lawyer, those consumer matters I suppose. But the Office of the Legal Services Commissioner’s annual report indicates that there’s actually quite a substantial number of complaints that originate from the opposing party in litigation…
RG:That’s right.
DT:…a third party to the engagement, often litigants in person, can you tell us a bit about those complaints?
RG:

 

 

 

 

 

7:00

 

 

 

 

 

8:00

Yes well under the legislation anybody in New South Wales can make a complaint about a barrister or solicitor so it is unrestrained from that point of view. Unless there are legal services involved then it can’t really be a consumer method so it can only be considered if it could go so far as to raise a disciplinary issue, if there’s no client solicitor relationship.

TIP: Now as Roger’s mentioned, there’s different types of complaints, and they’re usually broken up into two categories. The first of these are consumer matters. These involve complaints against a solicitor or barrister that don’t involve those two scary phrases: professional misconduct or unsatisfactory professional conduct. Consumer matters might be about delays, cost or poor communication. Disciplinary matters on the other hand, concern conduct which may amount to professional misconduct under s 297 of the Legal Profession Uniform Law or unsatisfactory professional conduct under s 296 of the Legal Profession Uniform Law. Complaints raising disciplinary matters have to be investigated, and these types of complaints generally result in disciplinary action being taken against the solicitor or barrister, if they’re made out.

So we do frequently get complaints from opposing parties for instance about a solicitor who’s not their own solicitor, complaints about the independent children’s lawyer in family legal situations, quite often complaints from beneficiaries about the executor’s solicitor who of course also isn’t providing legal services directly to them. So those matters are difficult because under the legislation they do have the right to complain and in some instances, you know, there may actually be something to the complaint. But it is one of the, you know, the difficulties of having the great privilege and honour of being a barrister or solicitor; that you are open to having a complaint made against you. And as you correctly say, or said at your opening, very few solicitors will get through their entire career without a complaint at some stage. Although it is a little dependent on the area of law that you work in.

DT:

 

In terms of those complaints that are made by third parties, I use the term ‘third parties’ broadly to mean anyone who’s not the client, is there a correlation between who makes that third party complaint and whether the complaint ultimately results in a disciplinary file being opened? For example, do complaints made by solicitors against other solicitors tend to result in disciplinary proceedings more often than complaints made by litigants in person?
RG:

 

9:00

 

 

 

 

 

 

10:00

Well one would anticipate that a solicitor who is complaining about another solicitor would have understood or looked at the conduct rules which suggest that you should not raise allegations of unsatisfactory professional conduct or professional misconduct about a fellow colleague unless there’s a solid basis for doing so. So from that point of view, one would anticipate that that is the case whether that always is reflected in reality, or whether it can just arise from a bitter dislike or perhaps a lack of comity within the profession. But certainly, you know, we try to ask solicitors and barristers wherever possible to resolve their differences between themselves, but you know we do get a lot of complaints about unpaid barristers bills, unpaid medical experts, things of that nature. So that will be a situation where of course there’s no solicitor-client relationship but there is still potentially a disciplinary issue.

TIP: The Office of the Legal Services Commissioner’s Annual Report for 2019 – 2020 indicated that of the phone calls made to the OLSC Inquiry Line, 56.2% were made by the client. 12% of calls were made by the solicitor on their behalf and 6% were made by the opposing client. Only 2.6% of calls were made by a solicitor on someone else’s behalf, other than their client that is. A similar pattern is seen with respect to written complaints – with client complaints accounting for 52% of written complaints, followed by opposing clients next. You can find a link to this report in our show notes.

DT:And when you have a matter like that, where a third party has made the complaint, what’s the first step in the complaints process to resolving it?
RG:

 

 

 

11:00

Well it’s like everything, we conduct a preliminary assessment on pretty much every complaint that we get and we may well go back to the proponent and ask for additional documentation and support, you know, we tend not to just approach a solicitor or a barrister and say well here’s a complaint, you know, without having done at least a preliminary analysis of it. So that would be the, you know, the first step. They basically would be provided with a copy of the complaint except in utterly exceptional circumstances and they’d be asked to provide their response. And quite often it can be a very straightforward process, particularly in the circumstances where the person who is the subject of the complaint is cooperative and doesn’t delay in responding. It means that we can often wrap those matters up very very quickly.

TIP: Around 30% of complaints are generally resolved within 3 months. Only a small percentage of cases take over 12 months to resolve. OLSC complaints that are closed may result in reprimanding the solicitor or barrister in question, issuing fines, issuing a caution or demanding an apology, making a consumer matter determination, or a compensation order, or commencing NCAT disciplinary proceedings for some of the really serious ones.

DT:

 

12:00

For the conscientious respondent to a complaint, I imagine even if they are cooperating fully and even if the complaint is vexatious or unmeritorious, it can be an extremely distressing experience for a profession populated by people who are consummate perfectionists perhaps. I want to ask you about some of the types of complaint that are commonly resolved at an early stage or are resolved quickly, but before I do I’ll just make a quick disclaimer that all of the examples that we discuss here today are general examples not drawn from any particular case and they’re not representative of any complaint file that’s active or closed at the Office of Legal Services Commissioner.
RG:

 

 

 

13:00

Thank you. Yes, well the matters that tend to resolve very very quickly are often matters that have been under the supervision of the court. It is not the role of our office to act as a review of a decision of the court or necessarily of the conduct of the solicitors or barristers who were involved in that matter before the court. That’s particularly in the matters where there’s an opposing rep matter, or an independent children’s lawyer matter. We get those a lot, but generally it would be inappropriate for us, not having sat in court and observed the conduct unless there was clear evidence of some form of misconduct. Those matters are supervised by the court and it’s appropriate for those unique concerns to be put before the court and those things to be dealt with. So we can’t act, if you like, as some sort of review over a matter that should have been raised before the court and wasn’t. So those examples are matters which, you know, we can deal with relatively quickly. Often beneficiaries complaining about executors, they are matters that unless there’s evidence of misconduct, that’s pretty clear we’re not going to be able to assist because again there’s no solicitor-client relationship. So those matters we tend to turn around relatively quickly.
DT:

 

Are there any other kinds of complaints, I suppose I’m thinking of the classes of substance of complaint, if you like, what the behaviour or action that’s the subject of the complaint are, are there any that tend to be resolved very quickly?
RG:

14:00

 

 

 

 

 

 

15:00

 

 

 

 

 

 

 

16:00

Sometimes with lack of communication, I mean that is, I think having worked in a law firm I’m fully aware of this, that always the client expects you to be more responsive than you sometimes are able to be. So where that’s drawn to our attention that would be classified generally as a consumer matter – that you’ve got an unhappy client effectively and we would go back to the solicitor with the view to resolving it.

TIP: The OLSC’s report for the years 2019-2020 found that poor communication was the most common complaint of all, followed by negligence and overcharging. Now poor communication is typically an example of a consumer complaint, but if it’s bad enough, it can result in disciplinary proceedings, such as in the 2019 Queensland Civil and Administrative Tribunal case of Legal Services Commissioner v Cruise ([2019] QCAT 182).  In that case the Queensland Legal Services Commissioner brought proceedings against a solicitor, for failing to maintain reasonable standards of competence and diligence while acting for his clients. The solicitor, who was acting for defendants in legal proceedings, repeatedly failed to correspond with the plaintiff’s solicitors or file an amended defence for his clients after a finding that the first one was ‘grossly deficient.’ The Tribunal found that this behaviour amounted to unsatisfactory professional conduct and Cruise was public reprimanded and ordered to pay the applicant’s costs.

However, this case is also significant in highlighting the intersection between mental health and the capacity to meet expectations of a legal professional. The decision noted that the solicitor suffered from so much pressure in his practice that he, quote, ‘stopped properly functioning mentally.’ The solicitor said that ‘he kept going into the office because he felt he needed to show up to work because he had people who relied on him’ but recalls not being able to engage mentally with his work. The Tribunal made an order for continuing consultation with a psychologist as a condition to the solicitor’s continued practice.

Working as a legal practitioner can be a very stressful job, which is why it’s so important to understand how to manage your mental health. If you’d like to hear more about mental health in the legal profession, why not try Episode 2 of Hearsay with Michael Tooma, a pre-eminent work health and safety lawyer and Managing Partner of Clyde & Co.

So the mere fact that a complaint is made is not necessarily the end of the solicitor-client relationship. And I think solicitors and barristers have to be aware of that distinction between the consumer matters that our office might refer and the more serious disciplinary matters. Because previously of course if you got a letter from the Office of the Legal Services Commissioner, or prior to our establishment the Law Society Professional Standard Department, you know, that was deeply, as you suggest, deeply concerning. But nowadays it could be as simple as just trying to resolve a minor costs dispute and really, you know, if the person involved can cooperate and can get back to us quickly, we can try to deal with that and sometimes allow the solicitor-client relationship to continue.

DT:

 

Let’s start with those consumer complaints, the ones that the Office of the Legal Services Commissioner offers a kind of dispute resolution process for.
RG:Yep.
DT:Can you tell me a bit about that dispute resolution process?
RG:

17:00

 

 

 

 

18:00

 

Sure, we’re actually obliged under the legislation to try to affect as quickly and equitably as possible a resolution where we’re able to do so. And we do resolve a reasonably significant number of those matters. Obviously, they’ll involve things like communication quite often as I’ve mentioned previously, liens are often difficult, obviously you know a solicitor will be looking for security for costs but sometimes we can assist in getting in a mutually acceptable resolution. And then of course we have the costs dispute aspects of consumer matters. We can resolve those but there are various monetary limits and time limits under which we can act in assisting to resolve consumer matters. But the commissioner is restricted to really an amount of just over $10,000 in terms of determinations. So we’re really, you know, what we offer is more for the minor cost dispute. Occasionally we can resolve a larger matter if the parties are cooperative and that of course avoids them having to go to a formal assessment. But in situations where we can’t resolve a costs dispute, we are obliged to inform the parties that they have the right to seek a Supreme Court costs assessment.
DT:And what does the Commissioner’s role in that dispute resolution process look like? Is there a conciliation or a mediation?
RG:

 

 

 

19:00

 

 

 

 

 

 

20:00

It is pretty much done in writing or by phone, it tends to be more in writing I think nowadays because we just found that attempting to ring solicitors in the middle of the day and say “oh by the way Joe Bloggs is complaining about your, you know, $500 bill”, they weren’t really prepared to respond. So we tend, albeit that it is a slightly lengthier process, to deal with it in writing now but we just find that we probably get more sensible responses. And so, we’ll write and explain the dissatisfaction and you know the reasons why the client might consider that they had been overcharged. Sometimes that will come as no surprise at all to the solicitor, other times they are a bit blown away by it, particularly in circumstances where they’ve already offered a significant discount which happens quite often. And of course, you know, key to all of this are disclosure issues in costs disputes. I would say that some clients have a rather optimistic view that if the solicitor hasn’t adequately disclosed that means they don’t pay a cent. We do believe that where the solicitor has done, you know, work to the benefit of a client it is generally fair that the client should pay. But by the same token there has been, you know, since 2015 under the current legislation a pretty well-known regime for costs disclosure and, you know, we’re always disappointed where we have to continually remind a solicitor about their obligations to disclose costs. So that is an area, and the new legislation since 2015 Legal Profession Uniform Law allows for ‘consumer cautions’ which is a new thing. Previously you had to be found guilty of unsatisfactory professional corner or professional misconduct to receive a caution. But now there is that ability for the Commissioner to caution in consumer matters. Now that’s not something that we would generally do, we would much prefer to resolve a matter. But it is a reflection I think of the fact that, you know, the legislation pathway to disclosure is pretty clear and has been in place for five years. So, you know, we would anticipate that solicitors are taking notice of that for the benefit of their clients and for the benefit of the reputation of the profession as a whole I think.
DT:Let’s move on to disciplinary matters now, I suppose the process for resolving those is less discretionary, less consultative, tell me a bit more about how those are dealt with.
RG:

 

21:00

 

 

 

 

 

22:00

Sure, they are dealt with more formally there’s no doubt about that. The evidential standards, you know, are high and we always have to look at whatever we’re dealing with the possibility that this might end up in the tribunal or going further. So it is a more formal requirement. Solicitors will be told what we have diagnosed as the significant disciplinary issues generally. It’s sometimes not that clear cut, sometimes you can have a consumer matter which will raise a disciplinary issue, they’re referred to as mixed complaints under the legislation. So our aim in those instances would be to try to resolve the consumer matter, but there could still be a disciplinary matter hanging over the head of the solicitor that does need resolution. Obviously, you can’t negotiate away a disciplinary matter if you’re guilty of unsatisfactory professional conduct or professional misconduct. That is something that has to be established by evidence and strong evidence. So, solicitors would get a lot of opportunities to provide responses; unfortunately in some instances they don’t. We do have the ability under the legislation to issue notices requiring their responses and a failure to respond to those notices can in itself be unsatisfactory professional conduct or professional misconduct. So, you know, we are talking often quite serious conduct and we do have, you know, some tools in our locker to help us to deal with those matters.
DT:I imagine, just coming back to that idea of the mixed complaint, I imagine where there’s a bit of animus between a consumer of legal services and a provider of legal services there’s likely to be a lot of mixed complaints. That…I was overcharged and also, well they did this and also they did that.
RG:

 

 

 

23:00

The perception for a lot of aggrieved clients is that they do have a mixed complaint, however, it’s really at the end of the day within our discretion to determine that. And often the things they are potentially raising as disciplinary matters may be matters of negligence for instance. Now there is a fairly limited role for our office in matters of negligence unless it can be established that it’s gross negligence because obviously solicitors hold insurance and clients have their own ability to pursue civil action in relation to matters of negligence. So the disciplinary area tends to shy away from that unless there is clear evidence of gross negligence.

TIP: Between 2019-2020, the OLSC received a total of 2,705 written complaints. Of these, only 5 complaints couldn’t be classified as either a consumer or disciplinary matter. Roger has mentioned negligence, which was the second highest category of complaints made against lawyers, following communication issues. A key component of the discussion surrounding complaints against lawyers, is of course, professional indemnity insurance. Having it is a mandatory component of legal practice and a key reason why, as Roger mentioned, the OLSC plays a limited role in the complaints concerning negligence. For an insightful and in-depth discussion on managing professional indemnity claims against lawyers, be sure to check out our episode with Jennifer McMillan from Lawcover on episode 4 of Hearsay.

DT:

24:00

Now in terms of disciplinary matters or in terms of the kind of conduct that might give rise to a disciplinary matter, can you give us an idea of what that might be? Obviously it’s not negligence, and obviously it’s not the sort of things that give rise to a consumer complaint.
RG:

 

Sure, I think most of your listeners will have a fairly good idea, obviously ripping money out of the trust account would be a fairly good place to start. But even minor trust irregularities because they are set forth in legislation that a failure to comply with those can represent as certainly unsatisfactory professional conduct or professional misconduct. But it can go to, well there’s a variety of things, there’s misleading the court obviously could be something, misleading your client, deliberately misleading you client obviously would raise questions. So it is that more serious side of things where it isn’t something you can just resolve by negotiations. It is something that reflects on the fitness and properness of the person to be practising.
DT:

25:00

Now we were talking earlier about your experience as a lawyer before joining the Office of the Legal Services Commissioner and how the nature of the work that you do can have an impact on your likelihood of receiving a complaint or the kinds of complaints you receive. And as I understand it especially in the family and criminal areas you’re far more likely to receive a complaint, is that right?
RG:

 

 

 

 

26:00

 

 

 

 

 

27:00

 

 

 

 

 

 

 

28:00

Exactly, I think you could work for one of the larger firms in Sydney and never receive a complaint at all in your entire practising career. But if you are working in personal injury, family law, criminal law, those areas are more likely to end up with a complaint, particularly, well family law has been, you know, the area where it is more likely to happen. Often that’s because there’s a long ongoing relationship between the solicitor and the client over a period of time. Often of course it’s a very emotional area and sometimes, you know, family lawyers say to us it’s very difficult for us to estimate costs at the start of a family law matter because of course it’s all, you know, it just depends quite largely on the attitude of the other party which sometimes is an unknown factor. So there have been problems in terms of disclosing or disclosure of costs in that area. Often problems too where large, large bills sort of mount up based on the fact that it will all be sorted out when the matrimonial home is sold for instance, and that can obviously lead sometimes to a breakdown in the solicitor-client relationship when the solicitor has to then say “well, you know, the money we’ve been carrying – we want it now.” So it’s an emotionally fraught area and having done it I admire practitioners who work in that area and in criminal law as well to an extent. And I understand the pressures and the emotions that having those clients who are often in a fraught position can create. So certainly I think our office, you know, recognises, and particularly for sole practitioners or practitioners in small firms and regional firms, that often there is very little support. And that you can feel you know that every client has unreasonable expectations and certainly, you know, we aren’t there to add to people’s stress. But, you know, that’s why I always ask practitioners if they respond quickly to our office and can deal with these matters then that will reduce their stress of having these things hanging over their heads.

TIP: Family and de facto matters was the number one legal matter giving rise to complaints against lawyers between 2019/2020, it made up almost 20% of the complaints. One such example is the 2016 case of the Legal Services Commissioner v Byrne. The applicant was a former client of Byrne’s, who complained that his solicitor commenced proceedings which had no prospects of success, prepared consent orders containing false representations, attempted to mislead the Law Society, prepared an assessment of costs in which claims were made in relation to work which was not done, all sorts of things. Disciplinary proceedings were commenced against Byrne and his conduct was found to be professional misconduct. The practitioner was publicly reprimanded, ordered to pay a fine of $3,000, and his practice was subject to inspection at 3 monthly intervals at the expense of the practitioner.

DT:I’m glad you mentioned the position of regional and remote practitioners and how they deal with complaints because being in a small firm perhaps it’s just yourself, or yourself and one other, or two others. I imagine it’s far harder emotionally to deal with the complaint but there are probably a whole other range of dimensions that impact on complaints in that environment – there might be a much longer relationship with clients in a smaller town or location, it might be much longer relationship with other practitioners. Do you see a higher number of complaints against suburban, regional, remote firms?
RG:

 

29:00

I couldn’t actually tell you if we do. I’m not sure we’ve done an analysis of that. There was research done which suggested for a long period that it was sort of the sole practitioner in their 50s or 60s and often in those days male, who was most likely to receive complaints. That is now, the females are catching up on that so it’s not, it’s not quite as clear cut as it was but certainly a lot of those regional areas and as you say often long-standing family involvement with a firm and sometimes quite unreasonable expectations can create problems. And also potential for conflict of interest where you’ve only got one or two law firms in the town, it can create some issues dealing with that. So again, you know, we’re alive to all of these issues that practitioners are having so, you know, we try not to place an unreasonable, unachievable standard. We simply are looking for a reasonable level of compliance with professional obligations.
DT:

 

 

We’ve talked about the kinds of complaints that come in, we’ve talked about how they might be discerned between disciplinary complaints and consumer complaints and how those are initially notified to the solicitors that are subject to them including the dispute resolution process for consumer complaints and mixed ones. What happens next? Is the solicitor given an opportunity to respond? They have their say?
RG:

30:00

Always. A solicitor will, well look, if nothing is going to happen with the complaint then quite often you will receive a letter from us saying “Dear Mr so and so, Mrs so and so” we’ve received a complaint about you, the Commissioner has closed it, we attach a copy, this is for your information only.” That’s in clearly unmeritorious matters, you know, we’ve sort of come to the view that solicitors probably should be told about these complaints albeit that they, you know, they’re not going anywhere. But certainly anytime there was going to be any disciplinary outcome a solicitor is entitled to make submissions, and often what will happen is that the solicitor will be sent a preliminary view saying “this is the Commissioner’s preliminary view” and will have an opportunity to make further submissions prior to that final decision being made. Because obviously these things can be on your practising record and they are important, it’s important from a natural justice point of view that you get to have a say or even to seek representation in making your submissions to our office.
DT:

31:00

We’ve talked a bit about the kinds of complaints that smaller practises receive and the kinds of complaints that family and criminal lawyers in particular receive and some of the reasons why they might receive them. And although they’re rarer it’s certainly possible for solicitors in much larger practises to receive those complaints. Can you give me an idea of what usually drives those complaints? Perhaps especially from a disciplinary perspective.
RG:

 

 

 

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33:00

Sure, I mean generally conflict of interest is one that might come up in a corporate sort of area, you know, involving a big firm; charging issues, but again they’re likely to exceed our, you know, the extent of our abilities to deal with them. Still liens, transfer of files between firms, they can create a degree of angst because firms are looking to, understandably, looking to ensure they’ve got security for their costs. So those are some of the key ones, you know, and there are instances where practitioners from one firm just do not get on with practitioners from another firm. And that unfortunately, particularly with the advent of email and social media, we’ve had a number of disciplinary matters that have arisen from really quite unwise communications that solicitors are engaging in late at night after a few drinks but still with their work email address on the communication. And unfortunately it’s a bit hard to argue that that’s not within the practise of law. So I would caution people generally that people seem to write things in emails that they would not write in a formal letter to an opposing representative and party. And, you know, we haven’t really touched on unrepresented litigants, but I would certainly encourage solicitors to read the New South Wales guidelines if you are dealing with an unrepresented person on the other side because we do get complaints about bullying or perceived bullying or, and unreasonable expectations. And you look at some of that correspondence and you do wonder what the solicitor was thinking in writing something quite as aggressive. Again, you know, a couple of those have been in the family lawyer area and you think pretty unhelpful in writing to an unrepresented person in that way.

TIP: Solicitors acting in a matter that involves a self-represented client should always explain to them that they act in the best interests of, and advise, their own client, not the self-represented party. Solicitors should be really clear that they are neither acting for nor providing advice to the self-represented party. The Law Society has some really useful guidelines on their website for dealing with unrepresented litigants and we’ll leave a link to those helpful resources in our show notes.

DT:I’m glad you mentioned the effective instantaneous communication, that the way we write in email is very different to the way we write in letters. It’s certainly something that’s been mentioned to me before that we’re kind of at a disadvantage these days that we don’t have the time between writing the letter, signing it and posting it to really reflect on whether that’s something that we want committed to writing.
RG:

34:00

 

 

 

 

I think you are absolutely right and the other thing that you’ve got to remember is every time you send a text message to a client that may well end up on my desk, it may well end up in tribunal proceedings. So I would urge solicitors who, you know, tend to write things in text messages when they’re frustrated to their client or to their opposing party that you just think about where your text messages, where your emails, you know even your remarks on social media, which that’s been something that’s come before our office as well. All of these things are new challenges for the profession that didn’t exist when you sat down and wrote a formal letter and sent it and that was all you did. So we’ve got to, you know, imagine how we use this technology to the benefit of the profession. But I remember an old practitioner saying to me that he was appalled by the lack of comity, you know. which was sort of collegiality, that now existed in the profession. And I think if we lose that entirely we perhaps lose the sense of what the profession should all be about.
DT:

35:00

I couldn’t agree more, and I feel as someone who does a fair bit of litigation in their practise, I don’t think there’s anything quite more satisfying than having a good relationship with one’s counterparty. To know that there’s really only one issue to resolve and that’s the main issue and there shouldn’t be any interpersonal issues or irrelevant stoushes along the way, but I’m sure that desire for a good fight that comes out of some people gets them into trouble.
RG:I think that’s right and whether that’s the pressure of clients now, perhaps less respect for the profession, maybe, then it was held in some years ago. And you know, the pace of everything these days, just that requirement to get things done more quickly. And we see this all the time that it is creating errors because the time and thought is not able to be given to things that are required overnight or, you know, within the hour and it can cause problems.
DT:

36:00

Do you have any advice for this news on how to manage those pace issues? I’m sure a lot of errors that result in complaints whether they’re disciplinary complaints, whether they ultimately result in negligence proceedings or something else entirely, I’m sure a lot of those happen in the early hours of the morning when someone’s exhausted and not at their best. But it sometimes seems like those late hours, that quick turnaround is just inescapable, it’s just part of what we have to do. Do you have any tips for how to manage that pressure?
RG:

 

 

 

 

I think one of the main tips, and it’s not at all easy to do and very easy for me to say, , when I’m not in practise, but it’s managing clients’ expectations. I think, you know, if you can do that and also give them a reasonable sort of timetable because it’s when you over promise and under deliver that your client is going to go “well, you know, they’re not doing what they said they were going to do and I’m upset” and so on. So I think giving them a realistic understanding of where they’re going with this and a realistic understanding of how much it’s going to cost. It’s not always easy but it just saves you so much stress in the long run.
DT:

37:00

 

 

 

 

 

 

 

 

After the solicitor has been given their opportunity to respond to the complaint, I assume it’s then for the commissioner to dispose of the complaint, resolve it one way or the other. What are some of the tools that the commissioner has to do that?

TIP: Now Roger’s about to explain the different enforcement tools that are available to the commissioner or another relevant authority when making a determination on a complaint. Section 299 of the LPUL outlines the different orders available. These might include:

  • Cautioning or reprimanding the lawyer;
  • Requiring an apology;
  • Requiring the lawyer to redo the work that is the subject of the complaint at no cost or at a reduced cost;
  • Requiring the lawyer to undertake training or counselling;
  • Requiring the lawyer to pay a fine; or
  • Imposing conditions on the practising certificate of the lawyer.

As we’ve already mentioned, the commissioner may choose to initiate and prosecute disciplinary proceedings in NCAT instead. So the Commissioner has a whole range of tools at their disposal to deal with different kinds of complaints.

RG:

38:00

Okay well they vary a little bit between consumer matters and disciplinary matters. In a disciplinary matter obviously the Commissioner can determine to close a matter or he can caution a practitioner, that’s a private caution. He can reprimand a practitioner, that appears on our public disciplinary register, or he can refer the matter to the tribunal where he considers the conduct is serious enough to warrant that. In the consumer sphere, there are other things available, he can order an apology for instance which is not something that we generally do. You know, certainly my view is that an apology is better if the person actually means it rather than is being forced to provide one.
DT:Yes it’s a strange situation to order one.
RG:It is somewhat unusual, so…
DT:It’s a bit like being pulled by your ear by your mother to give an apology.
RG:

39:00

 

 

 

 

 

 

40:00

 

 

 

 

 

 

 

41:00

 

 

 

 

 

 

42:00

 

 

 

 

 

 

43:00

Yes it would tend to probably only be used in matters where we consider that one solicitor’s communication with another solicitor was outside the bounds. But again, it would be much better if the solicitor offered that of their own accord. But again now in consumer matters a solicitor can be cautioned and that’s often happening in relation to a failure to appropriately disclose costs or particularly a failure to disclose a large increase to costs. One thing I would say too is that still we get disclosures within a range, I mean if you get given, you know, “your costs will be somewhere between $5,000 and $50,000” is that really an adequate disclosure of what this is going to cost you? I mean certainly, you know, we’re not blind to the fact that disclosures can change and alter but, you know, it is our view that the regime has been in now for five years and solicitors should have developed tools to help them to disclose costs appropriately and to meet those obligations. So where there’s been a pretty blatant failure to do so, the Commissioner has the ability to issue a consumer caution against the person.

TIP: Costs disclosure is most commonly a kind of consumer complaint, however failure to provide appropriate costs estimate can result in a finding of unsatisfactory professional conduct or professional misconduct, as the 2020 Victorian Supreme Court case, Shi v Mills Oakley [2020] VSC 498, shows. Mr Shi retained Mills Oakley to represent him in a shareholder dispute case in a period over some years. In November 2016, a solicitor told Mr Shi said that it was difficult to estimate the costs of the litigation but that it could potentially be around $100,000. The following day Mills Oakley sent a costs agreement to Mr Shi that listed the total fee estimate as ‘$50,00 (+ disbursements + GST).’  Following an unsuccessful mediation between Mr Shi and the other party, Mills Oakley informed Mr Shi that the costs would be approximately $60,000, which included counsel’s fees and fees associated with trial preparation.

However, in October 2019 when the trial concluded, Mr Shi was told that the total cost of the proceedings totalled $267,888, which comprised $74,000 in disbursements and $169,500 in fees. Mr Shi argued that his lawyers did not provide a valid costs agreement, nor a valid estimate of his legal costs, and failed to disclose the basis on which costs were to be charged. Now Mills Oakley claimed that Mr Shi failed to properly analyse the costs agreement, but the court disagreed, ruling that they had failed to comply with their requirements under the Legal Profession Uniform Law.  The Supreme Court determined that Mills Oakley didn’t produce disclosure of the hourly rate increases for partners and senior associates over the course of the case and didn’t provide a reasonable estimate of disbursements and total legal costs.

The Commissioner also has powers to require a solicitor to redo work. Again that tends not to be something we do a lot, largely because often the confidence level is broken down. It has happened occasionally that we might resolve the matter by suggesting that the solicitor do work again, but it’s unusual for us to order that. So those are the sort of the main areas, I mean often we do get requests for compensation. Again, often they arise in negligence issues and matters where it would be more appropriate for a client to pursue their civil remedies because it’s a mere negligence matter, if you like.

TIP: Negligence cases in connection with litigation are difficult to prosecute due to the principle of advocates’ immunity which protects lawyers from being sued by their clients for negligence. The key authority on advocate’s immunity in Australia is D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1, a 2005 High Court case that determined that this immunity applies to both barristers and solicitors, and to work both in and out the court room, so long as that particular work ‘is intimately connected with the conduct of a case in court.’ In that case, a client facing criminal charges sought out legal advice from Victorian Legal Aid who recommended that he plead guilty to the charges, which he did at the committal proceeding. Later, however, he decided to plead not guilty and stood trial where he was convicted and sentenced to three years’ imprisonment. The accused successfully appealed his conviction; the verdict was set aside, the conviction quashed and a new trial was directed. And at that second trial, he was acquitted. Now following this result, he commenced actions against Victoria Legal Aid and his barrister in connection with that advice that he received initially. However the High Court ultimately ruled that advocates’ immunity applied and that the legal professionals were immune from the suit.

DT:And of those matters you mentioned earlier, the matters that end up before the tribunal, how does that begin and I suppose how does that end?
RG:

 

44:00

 

 

Well it’s really not my area – actually it’s the other team now. It’s interesting ‘cause when I was at the Law Society I was dealing with those unsatisfactory professional conduct, professional misconduct matters but at the Office of the Legal Services Commissioner I deal with the consumer team basically. But again, it’s pretty much like you would take any tribunal proceedings. Obviously it’s done on the evidence, people appear, they give evidence. The complainant can apply to be joined to those proceedings if they’re seeking compensation. So there’s a number of rules and as I say I don’t tend to deal with that area and there are not a huge number of practitioners who end up before the tribunal, you know, more than we would like. But when you think there’s, you know, well over 30,000 lawyers now in New South Wales and in fact there’s probably more than that now, and we get two and a half thousand complaints, it’s not bad when you think of the, you know, hundreds and hundreds of thousands of transactions that are going on, you know, the profession I think really does pretty well all things considered.
DT:

 

Now of course prevention is better than a cure, I imagine by now you’ve seen a few techniques that might help some of our listeners to avoid a complaint, meritorious or not, being made about them. One I can immediately think of when it comes to sending correspondence that you might regret later is a delay send function on your email.
RG:Yes.
DT:Can you think of any others?
RG:

45:00

 

 

 

 

 

46:00

Well I think that would be a great help. Look you know, again I think it is setting expectations with your client but it’s very difficult because you want your client to engage you, you know, so if you sit there going “well don’t expect this and don’t expect that” it is difficult. But I think, and look, it depends on the client and it depends on the matter somewhat. Some clients are going to make a complaint about you at the end of it, you know, regardless of whether you’re the most brilliant solicitor, you know, that could ever have been engaged it is just the nature of the beast. And sometimes of course the complaint arrives at the same time as the bill, you know, has been delivered. So the two things go hand in hand. But communication is important, file noting is so important. Occasionally a client will turn up and say “oh I didn’t receive any cost disclosure, this is appalling, I had no idea what the costs were going to be.” And then when you actually put the complaint to the solicitor they come back and go “well here is my signed cost agreement with the client, here is my letter advising them of the change in the estimate of costs, here’s my letter advising them of what our proposed plan of attack is in their matter.” All of those things, you know, file notes, letters, cost disclosure documents properly completed just means that it’s so much easier for a complaint to A be avoided and B if it is made at all to be dealt with very quickly often in the solicitor’s favour. Because, you know, it’s fair enough, if the solicitor has done the right thing, they’re entitled to be paid properly and appropriately.
DT:And if you can’t avoid a complaint, if one’s been made about you despite your best intentions, do you have any parting tips for our listeners about how they can handle that complaint in the least stressful way possible for them?
RG:

 

47:00

 

 

 

 

 

 

48:00

 

Well I think it depends a little bit on the type of complaint that it is. Obviously if you get consumer matter complaints I mean you may roll your eyes and think ‘well here we go again,’ because as I say some people working in particular areas will have much more to do with our office than others. But again, if you can reply speedily, and occasionally we can actually help to remove the angst from, you know, your staff having to deal with aggrieved punters who yell down the phone about how annoyed they are. I mean, you know, some people are just very difficult customers to deal with. So, you know, if you can respond quickly, and look, we get some solicitors who are great, they come straight in, a lot of solicitors want to resolve a matter and will be proactive in trying to resolve that matter. They might agree that their performance on this matter has not been as good as it should have been and they’ll offer a reduction in their costs to show that or to reflect it. So, you know, if solicitors are proactive then it just means that A the client often goes away thinking that “oh well, you know, actually that firm’s not as bad as I thought they were, so I won’t tell everyone how awful they were” and also it just gets the stress off their shoulders quicker. Disciplinary matters again, particularly burying your head in the sand if you have a discipline matter complaint made against you is the worst possible thing you can do. Basically it means that we then have to start issuing and serving you with formal notices requiring your responses that, you know, can lead to delays. The Law Society has the ability to pull your practising certificate until you comply with those section 371 notices. So, you know, again, putting your responses off to the OLC or the Law Society or the Bar Council Association if it’s been referred to those bodies is the worst possible thing you can do. It’s not going to go away, you’re better just to face it and deal with it. And if you can’t because of the pressure that you may be under, I would remind your listeners that the Law Society offers some fantastic support. And also ultimately you can obtain representation to deal with the matter if you think you are in a bit of bother. That is sometimes not a bad idea, there are a lot of people who are experienced in working in the professional discipline area and it’s often worth talking to them.
DT:

49:00

I’m glad you mentioned the Law Society’s assistance schemes for solicitors who are experiencing mental health issues and distress. But it sounds like the very clear advice is if you receive a complaint whatever it is, deal with it early.
RG:Absolutely, yes that’s right.
DT:Roger thanks so much for joining me today on Hearsay.
RG:It’s been a pleasure thanks so much.
DT:

 

 

 

 

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You’ve been listening to Hearsay The Legal Podcast. I’d like to thank my guest today Roger Gimblett from the Office of the Legal Services Commissioner for coming on the show. Now as I said during the episode, you might give our episode with Jennifer McMillan from Lawcover a go after this one for some content on the closely related topic on professional indemnity insurance. Or if all this talk of complaints and PI claims is making you a bit nervous, bring your heart rate down a bit by listening to ‘Stop Collaborate and Listen’, my interview with Leona Bennett and Shelby Timmins about how collaborative law is changing the way we resolve disputes. If you’re an Australian lawyer, you can claim 1 continuing professional development point for listening to this episode. Now whether an activity entitles you to claim a CPD unit is, as you know, self-assessed, but we suggest that this episode constitutes an activity in the ethics and professional responsibility field. If you’ve claimed 5 CPD points for audio visual content only already this CPD year, you might need to access our multimedia content on our website to claim further points from listening to Hearsay. Visit our website htlp.com.au, for more information on claiming and tracking your points on our platform. The Hearsay team is Tim Edmeades, Kirti Kumar, Araceli Robledo, Zahra Wilson and me, David Turner. Nicola Cosgrove is our executive producer and she conducts the orchestra. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions – making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au and it’s probably where you’re listening to this. Thanks for listening.