Types of complaints
The Legal Profession Act 2007 requires the Commission to assess complaints about the conduct of legal practitioners and law practice employees as either consumer disputes or conduct complaints.
There is often a fine line between a consumer dispute and conduct complaint. We must sometimes make a judgement call based on the available evidence.
- What is a consumer dispute?
- What is a conduct complaint?
- What is unsatisfactory professional conduct?
- What is professional misconduct?
- How does the Commission deal with disputes and complaints?
Consumer disputes are complaints about conduct that does not involve an issue of unsatisfactory professional conduct or professional misconduct.
Consumer disputes might be about:
- lack of communication or rudeness
- liens (a legal practitioner’s right to keep a client’s property until he or she pays the legal practitioner’s fees and disbursements)
Conduct complaints are complaints that allege unsatisfactory professional conduct or professional misconduct.
There is often a fine line between unsatisfactory professional conduct and professional misconduct and, once again, we must sometimes make a judgement call based on the available evidence.
Unsatisfactory professional conduct is conduct ‘happening 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 Australian legal practitioner’.
Unsatisfactory professional conduct complaints might be about:
- a failure to comply with an undertaking
- a failure to adequately supervise an employee such as a conveyancing clerk
- threatening, abusive or offensive language
- failure to follow instructions (due to poor communication, for example)
Professional misconduct is 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 practitioner is not a fit and proper person to engage in legal practice’.
Professional misconduct complaints might be about:
- consistent or substantial unsatisfactory professional conduct
- fraud or misappropriation
- gross overcharging
- gross negligence
- conflicts of interest
- acting contrary to instructions
- misleading or dishonest conduct whether in or outside court.
Professional misconduct can also include 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.
The Commission mediates consumer disputes or refers them to the Queensland Law Society or the Bar Association of Queensland for mediation. Mediation involves talking to both parties to see if the issue can be resolved by negotiation and mutual agreement.
The Commission investigates complaints that allege unsatisfactory professional conduct or professional misconduct or refers them to the Queensland Law Society or the Bar Association of Queensland for investigation.
The Commissioner oversees and, where necessary, directs investigations conducted by the Queensland Law Society and Bar Association of Queensland. These professional bodies are required to report back to the Commissioner who reviews their findings and recommendations before deciding what action, if any, to take on the complaint.
The Commissioner initiates disciplinary proceedings and prosecutes legal practitioners if, after investigation, there is a ‘reasonable likelihood of a finding by a disciplinary body of unsatisfactory professional conduct or professional misconduct’ and ‘it is in the public interest to do so’.