Duty of Care and Negligence

Legal practitioners have a duty of care to their clients. This includes a duty to provide professional services with reasonable care and skill. Where a legal practitioner fails to do this, they may have breached their duty of care to their client.

A breach of a duty of care may mean the legal practitioner has been negligent.

Negligence is a failure to exercise the degree of care considered reasonable in the circumstances, resulting in financial or other loss.

Legal practitioners who fail to provide legal services to their client with reasonable care and skill, causing the client to suffer financial or other loss, may have breached their duty of care. The breach of that duty may amount to negligence and the client may be entitled to compensation for any loss suffered as a result.

A failure of the legal practitioner to achieve or give their client a desired outcome is not negligence.

The Legal Services Commission cannot decide whether a legal practitioner has failed in their duty of care or has been negligent.  Only a court of law can make a finding of negligence against a legal practitioner.

If you believe your legal practitioner has failed in their duty of care towards you, and you are seeking compensation for any loss you may have suffered, you should seek independent legal advice about your options to make a claim.

Complaints of negligence can be lodged with the Legal Services Commission if there is a belief the legal practitioner has been negligent.

The Legal Services Commission is the sole body responsible for receiving and investigating complaints about the conduct of legal practitioners, law practice employees and unlawful operators in Queensland.

The Commissioner is authorised to investigate any complaint of conduct that would, if proved, amount to unsatisfactory professional conduct or professional misconduct.

The Commissioner is also authorised to start disciplinary proceedings against a lawyer before a disciplinary body when the Commissioner is satisfied the evidence obtained during the investigation is sufficient to establish a reasonable likelihood the disciplinary body will find the lawyer’s conduct to amount to either unsatisfactory professional conduct or professional misconduct

Unsatisfactory professional conduct:

“Conduct 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.

Professional misconduct:

A substantial or consistent failure to reach the standard of competence and diligence a member of the public can expect from a reasonably competent Australian legal practitioner. This is generally more serious conduct and less likely to be a ‘one off’ or an accidental oversight.

The Commissioner may also start disciplinary proceedings against a legal practitioner before a disciplinary body if the Commissioner is satisfied there is enough evidence to establish a reasonable likelihood of a finding by the disciplinary body of unsatisfactory professional conduct or professional misconduct.

The same conduct that may amount to negligence may also amount to unsatisfactory professional conduct or professional misconduct for example:

  • inadequate supervision by a lawyer of the way their law firm deals with a client’s money
  • serious delays completing work on a client’s behalf including, for example, missing a statutory timeframe so that a client’s claim becomes statute barred
  • failing to keep a client informed of the progress of their matter.

Complaints of negligence to the Legal Services Commissioner will be assessed. The Commissioner will then decide what action to take. The Commissioner may:

  1. Take no further action

The Commissioner may not take further action on a complaint because:

  1. The conduct being complained about occurred more than three years ago and it is not just and fair to deal with the complaint having regard to the extent of, and reason for, the delay.
  2. The conduct complained about was the subject of a previous complaint that was dismissed or has been dealt with, and the complaint does not provide any new reasons to reconsider the matter.
  3. The complaint requires no further investigation.
  4. The Commissioner does not have the power to investigate.
  5. Start an investigation into some or all of the issues raised in the complaint
    1. The Commissioner may decide to investigate some or all the matters raised in the complaint if there is reliable evidence capable of supporting a finding on the balance of probabilities that a legal practitioner’s conduct may amount to unsatisfactory professional conduct or professional misconduct.
    2. The complaint is within the Commissioner’s powers to investigate.

Complaints alleging negligence often involve complex and contentious questions of opinion and fact. Even after exhaustive investigation, it may be unlikely the Commissioner can be satisfied there is a reasonable likelihood a disciplinary body would find that the legal practitioner’s conduct amounted to unsatisfactory professional conduct or professional misconduct.

As a general rule, complex and contentious questions of opinion and fact can only be properly decided by a court of law. The Commissioner can then deal with disciplinary issues after a court has made a decision.

Only a court can decide if a lawyer has been negligent.

The Commissioner cannot award compensation. Only a disciplinary body can decide whether to award compensation for any loss suffered as a result of the legal practitioner’s conduct, but only if the disciplinary body finds:

  1. The conduct of the legal practitioner amounts to unsatisfactory professional conduct or professional misconduct, and
  2. You suffered financial loss as a direct result of that unsatisfactory professional conduct or professional misconduct.

The disciplinary body can only award compensation for the amount of $7,500.00 unless both parties agree to a higher amount.

The disciplinary body cannot make a compensation order for damage to your reputation or stress or psychological injury.