The Legal Profession Act 2007 (the Act) establishes the Legal Services Commissioner as the sole body responsible for receiving complaints about the conduct of lawyers and law practice employees.
A complaint can be made to the Commissioner by a legal consumer (this includes a person who is not your client, e.g. a person who is represented by another lawyer in a transaction or litigation), other lawyers, the Queensland Law society (QLS) or Bar Association of Queensland (BAQ). The Commission may also initiate its own investigation in the absence of a formal complaint if it is considered warranted – these are called investigation matters.
The Commission only investigates conduct that may amount to either unsatisfactory professional conduct or professional misconduct.
It is important to understand the complaints process so you:
- know what to do
- are aware of your responsibilities
- understand the potential ramifications of a complaint on your staff and your business.
When a complaint is received by the Commission it is assessed for its eligibility under the Act before it is accepted. The Commissioner has the power to dismiss complaints if they:
- do not disclose conduct that is covered in the Act
- present as ‘frivolous, vexatious, misconceived or lacking in substance’
- have already been dealt with and there is no reason for further consideration
- are over three years old.
If the complaint contains sufficient information and clearly falls under the jurisdiction of the Act, the Commissioner is obliged to investigate the conduct. The Commission can carry out investigations itself or refer them to the QLS or BAQ, to be carried out under the Commission’s direction and control.
However, the final decision as to whether a discipline application is pursued rests with the Commissioner. However as from 1 September 2015 by agreement with the Queensland Law Society all complaints will now be investigated by this office. We do however continue to refer matters at our discretion to the Bar Association of Queensland.
Note: Neither the QLS nor BAQ has the power to decide how investigations should be concluded or to initiate disciplinary proceedings. These bodies report their findings and recommendations to the Commissioner. The Commissioner is responsible for final review and any decision.
You will be informed in writing when an investigation is commenced into a conduct complaint or an investigation matter.
It is important to understand that when an investigation is commenced this does not imply that the complaint is justified or that there has been any impropriety on the part of the practitioner.
Often a prompt and detailed response from the lawyer will assist the matter to a swift conclusion.
The Act requires the investigating body to inform you of:
- the nature of the matter(s) raised in the complaint now subject to investigation
- the identity of the person who made the complaint:
- for conduct complaints, a legal consumer, other legal practitioner, QLS or BAQ
- for investigation matters, the Commission
- anything the complainant has done in relation to the complaint before writing to you.
You will be provided with a reasonable time and opportunity to reply to the complaint or to otherwise make your submissions
The investigation will often be conducted via correspondence, however on occasions you may be called upon to produce your file or other documents, or the Commission may contact other witnesses and take statements.
All investigations must demonstrate procedural fairness. For that reason, a practitioner’s response will usually be provided to the complainant.
The Commission has substantial powers of investigation, including (but no limited to) the power to demand:
- a full explanation of the matter(s) subject to investigation, in writing or in person, although lawyers can refuse to disclose information that might incriminate them or that would contradict or invalidate a professional indemnity insurance policy.
- that you may produce any document in your ‘custody’, possession or control’ that you are required at law to produce.
We strive to make requests in a courteous and respectful manner. However, the Commissioner may take disciplinary action if you do not provide a response as directed or if the response you provide is inadequate.
The Act requires you to provide the Commission with ‘reasonable help’ throughout the course of the investigation. It also states it is an offence to ‘obstruct an investigator in the exercise of a power [without] a reasonable excuse’.
The courts and disciplinary tribunals have reinforced the point. 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’. The Court of Appeal observed in that same matter on appeal that ‘neither the investigation [nor any subsequent disciplinary] hearing is criminal in nature – it is a process directed towards protection of the public. Recognising that, a practitioner is duty bound to cooperate reasonably in the process.’ Both judgements can be accessed via the Commission’s discipline register.
Note: Failure to comply with a notice of this kind within fourteen days is prima facie evidence of professional misconduct.
When the Commission or one of its representatives is undertaking an investigation you are required to cooperate.
- Your first written notice is not an accusation, but a request for your side of the story.
- Do not ignore letters or phone calls from the Commission. In itself, that failure to act may amount to misconduct.
- When we receive your response we can decide whether a complaint has merit.
- Respond as fully and frankly as possible. It is rarely constructive or helpful to respond in anger, particularly as any letter may be seen not only by the complainant but by the Queensland Civil and Administrative Appeals Tribunal or Legal Practice Committee. The Commission does expect courteous communications from lawyers.
- Respond quickly and within the stated timeline. However, should an extension of time be necessary contact the Commission promptly requesting the extension.
- We are an independent investigator.
Important: If you don’t know what to do, or you are confused or concerned, or relevant staff involved with your complaint are unavailable, or you are time-constrained, contact the Commission’s investigator as soon as possible.
Why do clients complain to the Commission?
A client will take their complaint to the Commission when they feel they have run out of options to rectify their issues with you or your law firm. By this stage the client is likely to have had enough and no longer wants to retain a relationship with your firm.
The majority of complaints stem from common misunderstandings regarding business practice and client communication.
How will I know if there is a complaint against me?
You will be informed in writing when a conduct complaint or an investigation matter is accepted by the Commission against you. The written notice is issued by the Commission, the QLS or the BAQ, depending on who is handling the complaint.
You will generally not be informed in writing in the case of a consumer disputes, however we will call you to discuss the matter and to give you greater opportunity to negotiate how best to proceed.
You will not usually be informed if the Commission dismisses a complaint without investigation.
Can I contract out of the Act?
No. The Act provides that a provision in any agreement aimed at preventing a person from making a complaint or disclosing information to the Commission about practitioner conduct, is unenforceable.
Can I charge my client for my response to the complaint?
How can I safeguard my business from complaint?
We urge you, whatever the complaint, to learn from your experience and the experiences of others. Ask yourself if there was anything you might have done differently to avoid the complaint, or to prevent the issue from escalating to a formal complaint (see Factsheet 9 Avoiding Complaints)