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Where am I now? Lawlink > Office of the Legal Services Commissioner > Frequent Questions
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Frequent Questions
How independent are you?
What will happen to my lawyer and my case if I make a complaint?
Can I arrange a personal interview?
Can the OLSC meet with me and my lawyer to sort out the problem?
Can I get a quick answer from your inquiry line as to whether or not my solicitor is guilty of misconduct?
What is the difference between “unsatisfactory professional conduct” and “professional misconduct?
What is the difference between negligence and issues of misconduct?
Do you provide interpreters?
How long does it take from the time I lodge a complaint to the time I find out whether or not my lawyer will be disciplined?
Can I have my complaint reviewed if I believe that my complaint has not been properly dealt with and I am unhappy with the decision of the professional association?
Can my lawyer sue me?
Can my lawyer charge me for the time it takes to answer letters I write in trying to resolve my complaint?
What is a lien?
Why can’t I always get everything from my file?
My lawyer pressured me into settling and I regret it. What can I do?
My lawyer made a mistake – why can’t s/he be disciplined?
If I have a complaint about a Judge or Magistrate, where do I go?
How independent are you?
The Office of the Legal Services Commissioner is an independent statutory authority. The decisions of the Legal Services Commissioner on complaints are not subject to review by the Attorney General, the Director General of the Department of Justice and Attorney General or Parliament. They can be appealed to the Supreme Court.
The Office of the Legal Services Commissioner is funded by the Public Purpose Fund (PPF) and not from State Treasury or Commonwealth taxation revenue. The PPF is established from interest on lawyers’ Trust Funds.
Each complaint or inquiry is dealt with entirely on its merits. Staff members are obliged to acknowledge any potential conflict of interest.What will happen to my lawyer and my case if I make a complaint?
Theoretically, there should be no adverse affect for you or your case if you make a complaint to this office about your lawyer. We encourage you to complain if you are aggrieved and will do what we can to promote good relationships between lawyers and clients.
However, lodging a complaint with us can alter your relationship with your lawyer – especially when you are in the middle of your matter. There have been times when lawyers have stopped acting for clients who have complained – while their matter is in progress - on the grounds they believed the client had lost confidence in them.
Actions by this Office cannot and do not influence court proceedings or the outcomes of court proceedings.
Can I arrange a personal interview?
Interviews at our offices can be organised with OLSC inquiry line staff. However, due to limited time and resources, interviews are generally only arranged for those who have difficulty reading or writing English or have some other problem that causes difficulty lodging a complaint.
Can the OLSC meet with me and my lawyer to sort out the problem?
A mediation session can be arranged to resolve the dispute. Many matters can also be resolved over the telephone without the need for a formal meeting.Can I get a quick answer from your inquiry line as to whether or not my solicitor is guilty of misconduct?
Not generally. We can’t give you this advice as we would first need to receive your complaint in writing and give your lawyer a chance to respond to your allegations. Our staff can talk generally about previous disciplinary decisions by the Administrative Decisions Tribunal, the Commissioner, the Law Society or the Bar Association and perhaps indicate the relative seriousness of any alleged misconduct.
What is the difference between “unsatisfactory professional conduct” and “professional misconduct?
The Legal Profession Act 2004 (“Act”) defines “unsatisfactory professional conduct” as:
- Conduct (whether consisting of an act or omission) occurring 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 practitioner.
The Act states that “professional misconduct” includes:
- Unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence;
- Conduct (whether consisting of an act or omission) which, if established, would justify a finding that a practitioner is not a fit and proper person to remain on the roll of legal practitioners;
- Conduct that is declared to be professional misconduct by any provision of the Act; or
- A contravention of a provision of the Act or the Regulations, being a contravention that is declared by the Regulations to be professional misconduct.
The following may also constitute unsatisfactory professional conduct or professional misconduct under the Act:
- charging of excessive legal costs;
- conduct for which there is a conviction for a serious (criminal) offence, a tax offence or an offence involving dishonesty;
- conduct in becoming an insolvent;
- conduct in becoming disqualified from managing a corporation;
- conduct consisting of a failure to comply with the requirements of a notice under the Act.
Additionally, the common law defines professional misconduct to be conduct in pursuit of the practice of law which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency.What is the difference between negligence and issues of misconduct?
A legal practitioner has a duty to provide professional services with reasonable care and skill. A legal practitioner who fails to do this may have breached their duty of care to a client and have been negligent. The Tribunal and superior courts have determined that negligence is a form of unsatisfactory professional conduct or professional conduct only when it goes beyond “mere carelessness” or “mere negligence”. Complainants who want compensation from a legal practitioner usually have to take private legal action against the practitioner for professional negligence.
Misconduct falls into one of two categories – “unsatisfactory professional conduct” or “professional misconduct”. Both forms of misconduct can lead to disciplinary action being taken by the Commissioner eg a caution or reprimand, or referral to the Administrative Decisions Tribunal. The purpose of disciplinary action is to protect the public, correct the professional conduct and ensure that breaches do not occur again.
The dividing line between “mere negligence” or “mere carelessness” and misconduct under the Act is not clear. However, in the OLSC’ experience, very few complaints of negligence amount to professional misconduct or unsatisfactory professional conduct.
Do you provide interpreters?
Telephone interpreters can be arranged if necessary. You need to book this through the OLSC. A time will be made for you to come in for an interview with an OLSC staff member who will have the Telephone Interpreter organised.How long does it take from the time I lodge a complaint to the time I find out whether or not my lawyer will be disciplined?
We take some action on complaints generally within three weeks of receiving them. Any urgent matters will be dealt with more promptly.
In the 2009-2010 financial year, nearly 60 per cent of complaints were finalised within three months. However, investigations can be more complex and usually take about six months to finalise, but sometimes much longer. We cannot guarantee a time frame or make a proper estimate until we have examined all the information from both sides.
If your complaint has been referred to the professional body (Law Society or Bar Association) for investigation, the professional body attempts to conduct your investigation as expeditiously as possible. The OLSC plays a monitoring role during the investigation process, is regularly informed of progress and advised of the professional body’s determination of your complaint.
Can I have my complaint reviewed if I believe that my complaint has not been properly dealt with and I am unhappy with the decision of the professional association?
Refer to Reviewing Investigations conducted by the Law Society or Bar Association.
Can my lawyer sue me?
Making genuine complaints about the conduct of a lawyer cannot form the basis of a civil action by the lawyer, such as defamation, as it is made confidentially to this Office.
Can my lawyer charge me for the time it takes to answer letters I write in trying to resolve my complaint?
No. We take the view that lawyers have an obligation to respond to this Office. Any time spent talking to us or writing to us should not be charged to the client who has lodged the complaint.
What is a lien?
It is a lawyer’s right to keep any property lodged with the lawyer until you have paid all their fees and relevant expenses (disbursements).
Lawyers can claim a lien over documents and property that you gave them while they were representing you (in this or any other matter), including things for which you have paid. They can also claim a lien over money they are holding on your behalf.
Your lawyer can’t claim a lien over title deeds of your property, once the property has passed to another owner. They are also unable to claim a lien over your will or passport.
Files or documents can be released from a lien when you pay the costs.
The Legal Services Commissioner can order the documents to be released as a compensation order.
Solicitors can also be ordered to release documents from a lien by the Supreme Court.
For further information please see the OLSC Fact Sheet on Liens. Why can’t I always get everything from my file?
Most documents in a file belong to the client but some belong to the lawyer. Ownership depends on when the document came into existence and for what purpose.
Documents that the lawyer prepared for their own use and for which you are not expected to pay, belong to the lawyer. Examples of this include, notes taken in conference to aid a lawyer’s memory.
A lawyer must return documents to which the client is entitled or keep them for seven years.My lawyer pressured me into settling and I regret it. What can I do?
Settlement decisions are final unless an appeal to the court is possible.
Your lawyers should not apply undue pressure on you to settle. Your lawyer cannot make the final decision to settle. It is you who decides whether or not to settle or to pursue court action. However, if you choose to go against the advice of your lawyer, they may decide not to continue acting for you.
There are certain things that your lawyer must consider when advising you about settlement.
Accepting a settlement offer can sometimes be advantageous because it reduces legal costs that would be incurred if the case went to hearing and it can take the risk out of a case, enabling you to see exactly how much you will receive after your legal costs and disbursements are paid.
Sometimes it is not in your interests to settle, for example when the amount being offered is too small.
A lawyer advises you to settle or not based on the strengths of your case, the risks you face if the case goes to hearing and the range of damages the court is likely to award you. A lawyer is obliged to fully inform you of their opinion. You may feel pressured by a lawyer making efforts to make their opinions known.
My lawyer made a mistake – why can’t s/he be disciplined?
Your lawyer has a duty to provide you with reasonable care and skill in the provision of legal services. Failure to correctly calculate the amount of stamp duty payable would probably be a mistake that would not constitute disciplinary action. Failing to know that a contract for the sale of land needs to be stamped before it can be registered, however, may be negligent to the extent that disciplinary action can be taken.
Compensation is only available from the Tribunal in cases where the lawyer has been found guilty of unsatisfactory professional conduct (UPC) or professional misconduct (PM) and where you as the client have suffered a direct loss and you can’t receive compensation from another source. (For example, from the Fidelity Fund, Professional Indemnity Insurance or in civil proceedings in court)
Compensation may be awarded by the Commissioner to a maximum sum of $10,000 and by the Administrative Decisions Tribunal to a maximum sum of $25,000.
If I have a complaint about a Judge or Magistrate, where do I go?
If you have a complaint about a judicial officer being a Judge or Master of the Supreme Court, a Judge of the Land and Environment Court, Industrial Court, or District Court, or a Magistrate of the Local Court, you will need to contact the Judicial Commission of NSW.
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