Ethics FAQs - Complaints and Disciplinary Matters
All formal complaints have to be made to the Legal Services Commission (LSC) in writing. The LSC refers some conduct complaints to the QLS for investigation, and the QLS reports back to the LSC. In all cases it is the LSC that decides whether to prosecute, and is the prosecutor.
The LSC also deals with public enquiries and, when contacted by a solicitor’s client with concerns, may attempt to resolve minor matters on an informal basis.
Information on the complaints process, and the complaint form, are available from the LSC website:
• Complaints includes the complaint form
• Fact Sheet No 2 - Making a Complaint
• LSC Annual Report 2008-09 in particular Appendix 1 summarises the complaints process.
Yes, please refer to Legal Services Commission Factsheet Avoiding complaints.
Many complaints relate to, or have arisen from, poor communication, so read Legal Services Commission Factsheet Communicating with your client.
Also you can contact an Ethics Guidance Solicitor in the QLS Ethics Centre, if you have an ethical dilemma, or a difficult client.
Complaints mainly arise due to:
- poor communication
- failing work systems or practice management
- unethical conduct
Further reading:
- QLS Practice Management Guide: Practice Support
- QLS Practice Management Guide: Client Care
- QLS Practice Management Guide: Do's and Don'ts of Client Care
- QLS Practice Management Guide: Costs, Billing and Profitability
Further Contacts:
- Queensland Law Society Ethics Guidance Solicitor on 3842 5843 or ethics@qls.com.au
- QLS Practice Management Specialist, Giles Watson on 3842 5853 or g.watson@qls.com.au
Queensland Law Society members can obtain Free Legal Advice or may consult a Senior Counsellor. Confidential expert legal advice is available from one of a panel of solicitors, and up to three [3] hours of this is paid for by the Society. Importantly, inform colleagues.
Penalties apply to failures to reply, or provide documents as requested within the time specified (Legal Profession Act 2007 ss 443(1), (2)). Failure to comply with notices issued under s 443(3) are taken to be professional misconduct unless there is a reasonable excuse – s 443(4). Even if the original complaint is dismissed.
Contacting the complainant about the complaint may be seen as an attempt to interfere with the investigation, and is to be avoided. Similarly, if you are involved in a resolution of a civil claim related to a pending disciplinary complaint, refrain from negotiating terms of settlement which would potentially discourage material witnesses from voluntarily assisting the regulator.
The Legal Services Commission’s approach to minor incompetence, mistakes, errors of judgement, delays, discourtesy or other poor standards of service that give clients less than a fair deal is to:
- require an apology to the client or
- re-do the work or
- waive some or all of the fees or
- remedy the faults in the service provided
in order to learn from the mistakes by fixing the office systems or undertaking some further training. The LSC doesn’t have the power to require you to take any such steps but can prosecute you before the Legal Practice Committee or QCAT.
Further reading:
LSC Fact sheet Responding to a complaint.
Gino Dal Pont ‘How should lawyers respond to complaints?’ July 2008 NSW Law Society Journal p 44.
Gino Dal Pont ‘An attitude of cooperation’ (2008) 82(7) Law Institute Journal p 84.
Case Studies:
- Legal Services Commissioner v Slipper [2008] LPT 8, paragraphs 15-22
- Council of the QLS v Whitman [2003] QCA 438
- Legal Services Commissioner v Richardson [2009] LPT 17
The first point to make is that the QLS has no jurisdiction to intervene in these circumstances, and as a matter of policy will not do so, even informally. The second point is that complaints about a solicitor’s conduct can only be made to the Legal Services Commission.
More generally, this question raises similar issues to the last FAQ. Section 28.3 of the Solicitors Rule 2007 is again relevant. Take care not to threaten the institution of disciplinary proceedings. You should be sure that the circumstances are such as to warrant a complaint, and you might usefully confirm this with colleagues or a Senior Counsellor from the QLS panel.
You should also appreciate that there may be no action the LSC can take. The other solicitor may be acting on instructions, or there may be some other reason for this lack of response. Such matters may be confidential or privileged and the other solicitor may not be able or willing to provide details, even to the LSC.
