What to do if you receive a complaint

The Legal Services Commissioner

The Legal Services Commissioner is obliged to conduct an investigation if a complaint is made and she believes the conduct is capable of amounting to unsatisfactory professional conduct (section 418) or professional misconduct (section 419).

A thorough assessment of the complaint is conducted prior to an investigation commencing  The Commissioner may decline to investigate where the complaint is “frivolous” or “vexatious” or in circumstances where the complaint is about conduct more than three years old.

The Legal Services Commission adopts a non-adversarial and consultative approach to investigations and strives to make requests for information in a courteous and respectful manner.

Where a legal practitioner fails to cooperate, the Commissioner has coercive powers under the Legal Profession Act 2007 (the Act) to deem the uncooperative conduct professional misconduct.

Under the Act, the Commissioner has coercive power of entry into a law practice, and coercive power to require attendance for an examination. These powers will generally be used as a last resort when attempts to secure a response, or the production of documents, have failed.

The Act does not abrogate the privilege in relation to self-incrimination or legal professional privilege.

Legal Practitioner's Obligations

Legal practitioners have a legal obligation to comply with requests from, and provide responses to, the Legal Services Commission.

A  failure by a legal practitioner to co-operate with an investigation may amount to unsatisfactory professional conduct or professional misconduct.

Remember:

  • The first written notice of the complaint is not an accusation, but a request for the other side of the story.
  • Do not ignore letters or phone calls from the Commission. In itself, that failure to act may amount to a conduct issue.
  • It is only when the Commissioner receives a response to a complaint, can she decide whether the complaint has merit.
  • Respond as fully and frankly as possible.
  • Correspondence may be seen by the complainant, the Queensland Civil and Administrative Tribunal (QCAT), or the Legal Practice Committee (LPC).
  • At all times use courteous communications when interacting with the Commission.

See also Complaints and the Legal Profession

Lawyers should be frank and completely honest in all dealings with the Commission.

The Solicitors Complaints Tribunal commented in the matter of Whitman in 2003 that:

“...a solicitor has a duty to be truthful even to his own detriment, and not just a duty to be truthful but a positive duty to be full and frank and for his answers to be candid as well as truthful”.

If you are the subject of complaint you should notify your principal.

Your principal may be able to assist you to respond to the complaint, and where necessary, take steps to identify potential issues within the practice that may need to be addressed.

The investigator may also inform your principal about the complaint.

Responding

Take the opportunity to provide a full and frank response to the conduct subject to investigation. Failure to do so may lead to unnecessary costs being incurred by you.

In the Court of Appeal case LSC v Bone [2014] QCA 179, the Court was critical of a respondent practitioner for failing to provide sufficient information prior to a discipline application being filed.

In that case, despite some charges being withdrawn and others dismissed, the Court of Appeal found the Commission was not responsible for the costs incurred by the respondent practitioner in responding to the discipline application. This was due to the respondent’s failure to provide a full response prior to the commencement of proceedings.

In the event a disciplinary application is filed but is subsequently withdrawn or dismissed as a result of evidence or submissions which you did not provide in response to the investigation, the Commissioner will seek an order for costs pursuant to section 462(2) of the Act.

Communication with the Legal Services Commission in a way that breaches the professional rules, may result in disciplinary action. See Legal Services Commissioner v Thomas [2009] LPT 013, Mullins J.

The standard time frame allocated for a response is generally two to three weeks.

If you believe inadequate time has been given, or you need additional time, please contact the investigator.

A failure to respond to requests from the Commission may amount to a conduct issue under the Legal Profession Act 2007.

The first written notice

When the Legal Services Commission or one of its representatives are conducting an investigation, legal practitioners and their staff must cooperate.

Remember:

  • The first written notice is an opportunity for you to tell your side of the story.
  • A failure to respond to a request for information from the Legal Services Commission may in itself, amount to misconduct.
  • Once a response has been received, the Legal Services Commissioner can then decide whether a complaint has merit.
  • Be full and frank when responding to a request for information.
  • The Commissioner expects courteous communications from legal practitioners.
  • Respond quickly and within the stated timeline.
  • Contact the Legal Services Commission promptly should an extension of time be required.
  • The Legal Services Commission is an independent statutory body and does not take sides in a dispute and does not provide legal advice.

If you don’t know what to do, are confused or concerned, time constrained, or the relevant staff involved with your complaint are unavailable, contact the Commission’s investigator as soon as possible.

FAQs

While there are no set time frames for conducting an investigation, the Legal Services Commissioner aims to conduct all investigations as thoroughly and efficiently as possible. The Commissioner may spend six to nine months investigating a complaint depending on the nature and complexity of the matter. Where the investigation is complex, the time frame may be longer.

In conducting an investigation, the Commissioner will decide the scope and extent of the investigation.

See also The Complaint and Investigation Process.

On completion of an investigation, the Investigator will prepare a report to the Commissioner.

The Commissioner will either dismiss the complaint or may decide to commence disciplinary proceedings in either the Queensland Civil and Administrative Tribunal (QCAT) or the Legal Practice Committee (LPC).

For further information on the relevant factors on which the Commissioner will base her decision, please see the Discipline Application Guidelines.

See also Complaints and the Legal Profession.

Additional Information

It is standard practice for a copy of the response and any additional correspondence to be provided to the complainant for comment.

The Commissioner will give consideration to a request for non-disclosure from either party where good reason is required for nondisclosure to occur. The Commissioner’s investigation must not lack procedural fairness.

It is preferable for correspondence to be provided in a format that will allow appropriate comment on the material from the other party.

See also Complaints and the Legal Profession.

The Legal Services Commission may provide procedural assistance about the complaint and investigation process, but it does not provide legal advice.

The Queensland Law Society (QLS) Free Legal Advice Panel will end on 30 June 2020. For further information please contact the QLS on: (07) 3842 5888

Other Resources

Protection of Information

It is an offence to use or disclose information provided or obtained during the investigation and complaint process for any purposes except those outlined in the Legal Profession Act 2007.

The Legal Services Commission collects, receives, uses, stores and discloses your personal information in accordance with its obligations under the Legal Profession Act 2007 and the Information Privacy Act 2009.

For the purposes of assessing, negotiating or investigating a complaint, the Commission may disclose your personal information to the person named in the complaint, their legal representative and the legal profession’s regulatory authority, either the courts, Queensland Law Society (QLS) or the Bar Association of Queensland (BAQ).

If a complaint proceeds to a disciplinary hearing, your personal information will usually be disclosed to the disciplinary body. A disciplinary body includes the Queensland Civil and Administrative Tribunal (QCAT), and the Legal Practice Committee (LPC). Disciplinary hearings are open to the public.