MAKING A COMPLAINT

2.2 A complaint must:

• be in writing;¹
• identify the complainant and the practitioner complained against;² and
• provide particulars of the conduct complained of.³

2.4 In 1998/9, 2,869 written complaints were received by the LSC. There were 2,668 complaints about solicitors, 167 against barristers and 13 against licensed conveyancers. In addition to this 7,402 telephone enquiries were dealt with by legal staff of the Office of the Legal Services Commissioner (OLSC).⁵

2.5 Complaints must usually be made within three years of the date on which the conduct is alleged to have occurred.⁶ However, a complaint may be received outside the three year period provided a determination is made that:

(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay, or

(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.⁷

2.7 In 1998/9, 32 out of a total of 2,869 written complaints received by the LSC were rejected as being out of time.¹⁰ In 1997/8, 83 out of 2,709 written complaints were rejected on this basis.¹¹ In 1996/7, 3,139 complaints were received by the LSC. One hundred and fourteen of these were out of time complaints. Of these, 94 were rejected.¹²

2.8 Complaints must disclose one or more of the following:

• unsatisfactory professional conduct;¹³
• professional misconduct;¹⁴ and
• a consumer dispute which need not necessarily amount to professional misconduct or unsatisfactory professional conduct.¹⁵

2.9 The Legal Profession Amendment (Complaints and Discipline) Act 2000 (NSW) establishes a procedure for complainants to withdraw complaints.¹⁶ The withdrawal of a complaint must be in writing. Complaints cannot be withdrawn once proceedings have been instituted in the Legal Services Division of the Administrative Decisions Tribunal (the Tribunal). The LSC or Council to whom the complaint was referred may reject the withdrawal of the complaint if satisfied that it may involve misconduct. The withdrawal of a complaint does not preclude a further complaint with respect to the same allegations.

Compensation

2.10 A complainant may also seek compensation. This must be sought in writing within six years of the conduct which caused the alleged loss and the claim may be made at any time before the “disposal of the complaint” but not once proceedings have been instituted in the Tribunal unless the Tribunal grants leave.¹⁷

PARTIES TO A COMPLAINT

Complainants

2.11 Any person (including a Council and the LSC) may make a complaint relating to the conduct of a legal practitioner.¹⁸

2.12 People who make complaints fall into a wide variety of categories. The greatest number of complaints are lodged by current clients of the legal practitioner complained against (42% of complaints against solicitors; 31% of complaints against barristers; and 50% of complaints about licensed conveyancers). The next largest category is complaints lodged by opposing clients (10% of complaints against solicitors; and 15% of complaints against barristers) followed by those lodged by previous clients (7% of complaints against solicitors and 3% for complaints against barristers). Other complainants include other legal practitioners (either on their own behalf or on behalf of clients), the LSC, judicial officers, the Law Society, people associated with the administration of a deceased estate and witnesses.¹⁹

2.13 Of the telephone enquiries received by the OLSC, approximately 70% came from clients of legal practitioners, 7.5% came from a friend or relative of a client and 6% from an opposing client.²⁰

Whistleblowers

2.14 “Whistleblower” is a popular term used to describe a member of an organisation (usually a public sector body) who discloses to an investigating body that another member of that organisation has engaged in, or proposes to engage in, corrupt conduct.²¹ The Protected Disclosures Act 1994 (NSW) currently governs whistleblowing in the public sector and ensures certain protections for whistleblowers, for example, anonymity. Conceivably a whistleblower could be a complainant under Part 10. The Professional Standards Council has published a consultative paper which proposes incorporating whistleblowing principles into the regulation of professions generally, including the legal profession.²²

Persons complained against

2.15 Persons whose conduct may be complained against under Part 10 include solicitors, barristers,²³ licensed conveyancers²⁴ and public notaries.²⁵ Judicial officers cannot be the subject of a complaint under Part 10 even in relation to conduct that occurred when they were legal practitioners,²⁶ although it is not clear where acting judges stand in this regard.²⁷ Some legal practitioners cannot currently be the subject of complaints under Part 10 in relation to conduct that took place when they were acting in a number of what could be termed “quasi-judicial” positions. These include:

• arbitrators;²⁸
• commercial arbitrators;²⁹
• mediators;³⁰
• referees;³¹ and
• costs assessors.³²

Complaints against individual practitioners only

2.17 The current system deals only with complaints against individuals. Barristers can only be sole practitioners, so this does not present a problem in their case. However, despite being treated as individuals for the purposes of the complaints system, many solicitors are part of partnerships or employees of firms.

2.18 The majority of complaints made against solicitors are made against sole practitioners. In 1998/9, 46.5% of complaints were made against sole practitioners (who comprise only 18% of the practising profession). Nearly 25% of complaints in the same period were against partners (who comprise 20% of the practising profession), while 12.7% of complaints were against employed solicitors (who comprise 33% of the profession).³⁴ The Professional Standards Department of the Law Society (PSD) has offered some suggestions as to why sole practitioners attract proportionately more complaints:

This may be explained by the fact that more people tend to procure the services of smaller suburban firms. It also highlights particular problems often faced by the sole practitioner including cost and time pressures, increasing specialisation, changes to technology in the workplace and constant changes to the law.³⁵

Complaints against partnerships and firms

2.20 At present there is no mechanism for dealing with complaints against law firms, as opposed to complaints against individual practitioners. Despite this fact, and notwithstanding advice to complainants to this effect, 3.3% of complaints in 1998/9 were against firms generally rather than against particular solicitors.³⁷ The fact that there is no mechanism to deal with complaints against firms may have particular implications for legislation currently before Parliament to allow solicitors’ practices to incorporate.³⁸ It is assumed that individual members of incorporated law firms will continue to be subject to professional regulation.³⁹

SCOPE OF COMPLAINTS

2.21 The following tables, published in the OLSC’s Annual Report, illustrate, in broad terms, the scope of complaints received by the LSC and dealt with by the Councils.

Table 2.1: Percentage of complaints and consumer disputes that refer to a specific type of complaint, 1998/9⁴⁰

complaint type†	solicitors	barristers	licensed conveyancers
Communication	18%	12%	12%
Compliance matters	1%	0%	0%
Costs agreement	6%	3%	6%
Costs/bills	23%	12%	6%
Documents	6%	3%	0%
Ethical matters	26%	49%	59%
Quality of service	34%	53%	29%
Trust fund	6%	2%	12%
TOTAL (numerical)	2,668	167	13

† One complaint may cover more than one complaint type.

Consumer disputes and disciplinary matters

2.22 The tables derived from the OLSC Annual Reports do not distinguish between complaints in relation to unsatisfactory professional conduct and professional misconduct on the one hand, and consumer disputes on the other. Certainly at the initial stage of receiving a written complaint no distinction is made. It is only in the process of investigating and dealing with written complaints that an identification is ultimately made. In some cases a complaint that on its face discloses a consumer issue may turn out, on investigation, to involve issues of unsatisfactory professional conduct or professional misconduct. In others, a matter identified as a conduct issue by a client may, on investigation, turn out to be a consumer dispute. Some matters will, inevitably, involve both conduct and consumer issues. Issues relating to the consumer aspect are dealt with in Chapter 3.

Complaints against barristers and complaints against solicitors

2.23 It has been suggested that, despite the fact that Part 10 essentially makes no distinction between barristers and solicitors, the conduct issues that must be dealt with by the Bar Council are substantially different to those dealt with by the Law Society. This is said to lead to different perspectives as to what is required from the disciplinary system, particularly in terms of procedural fairness. For example, the Bar Association argues that the fact that solicitors usually operate trust accounts, while barristers are precluded from operating them, may lead to differences in the usual course of action against solicitors.⁴¹ For example, it is argued that:

disciplinary allegations against a solicitor often emerge in the ordinary course of the Law Society’s conduct of its affairs (eg as a result of a routine trust account inspection) whereas allegations against a barrister usually arise only in, and by reason of, a discrete complaint by a “lay complainant”.⁴²

Table 2.2: Number of complaints opened by Law Society, by type of complaint, 1995/6 to 1998/9⁴⁴

complaint type	1998/9	1997/8	1996/7	1995/6
Unethical conduct	261	249	338	419
Negligence	131	129	279	275
Failure to account	80	64	43	71
Delay	45	48	113	152
Overcharging	44	46	180	304
Failure to carry out instructions	40	65	101	93
No communication	39	27	55	82
Conflict of interest	38	21	64	39
Consumer dispute	31	88	124	n/a
Not complying with undertaking	21	22	29	47
Failure to transfer documents	21	16	22	52
Act without/contrary to instructions	21	19	31	47
Fail to pay third party	17	10	12	37
Transfer costs without authority	11	14	5	9
No client advice	11	6	12	24
Review re-investigation	10	8	0	0
Discourtesy	9	8	23	37
No advice on progress	7	2	8	8
Lack of supervision	7	7	14	18
Communicating with a client of another solicitor	6	11	13	12
Failure to provide a detailed account	6	5	11	20
Client funds at risk	6	0	0	0
Liens	5	0	0	1
Arising from a trust account inspection	3	14	27	9
No statement available	1	0	1	0
Not complying with cost agreement	0	0	0	1
Mediation	0	0	0	1
Loss of documents	0	2	0	1
Intermingling money	0	0	0	1
Total complaints opened	871	881	1,505	1,760

Table 2.3: Number of complaints opened by Bar Association, by type of complaint, 1996/7 to 1998/9 complaint type 1998/9⁴⁵ 1997/8⁴⁶ 1996/7⁴⁷

complaint type	1998/9. OLSC, Annual Report 1998/9 at 59.	1997/8. OLSC, Annual Report 1997/8 at 60.	1996/7. OLSC, Annual Report 1996/7 at 19.
Acting contrary to/failure to carry out instructions	5		8
Acting without instructions	3	1
Alleged breach of Bar Rules 18 & 59		1
Breach of confidentiality	2		3
Breach of s 25 of LPA		1	1
Breach of undertaking		1
Breached Bar Rule 48	1
Breached Bar Rule 54	3
Breached Bar Rule 66	1
Breached Bar Rule 75	1
Breached Bar Rule 80		2
Conflict of interest	1	4	6
Conspiracy to pervert course of justice	5	4	5
Delay			3
Delay/failure to provide chamber work	1	2
Dishonesty/misleading conduct	3	2	3
Ethics inquiry/complaint			12
Exerted undue pressure			9
Failure to adduce available evidence	5	5	6
Failure to advise		2
Failure to advise properly or at all		2
Failure to appear	3	6	6
Failure to carry out instructions		2
Failure to comply with Part 2 of LPA	3
Failure to comply with undertaking		1	1
Failure to cross examine competently		1	3
Failure to respond to s 152 notice		1	1
Failure to return brief	1
Failure to use interpreter		1
Fees dispute	1
Improperly applied provisions of Motor Vehicle Accidents Act		1
Incompetence (in court)	4	5
Incompetence (outside court eg advice)	2	1	22
Incompetence (outside & inside court)	1
Intoxicated when appearing or seeking to appear		2
Mislead		1
Misleading the court	6	6	7
Obstruct/delay proceedings	1
Other unethical conduct	3	7
Otherwise negligent			1
Over zealous cross-examination	2
Overcharging/overservicing	5	10	4
Personal conduct	1	1	3
Pressure to change plea	1
Pressure to plead guilty		1
Pressure to settle	5	2
Rudeness/discourtesy	2	1	4
Total complaints opened	72	78	108

THE INITIAL ROLE OF THE LEGAL SERVICES COMMISSIONER

2.25 Once a complaint is received by the LSC it undergoes a process of refinement where the issues are identified and parts of the complaint are ultimately characterised as relating to unsatisfactory professional conduct, professional misconduct or a consumer dispute. First, the LSC may request further particulars or a statutory declaration to verify the information already provided.⁴⁸ If these requests are not complied with, the LSC may dismiss the complaint.⁴⁹ In 1998/9 185 complaints (170 against solicitors and 15 against barristers) were dismissed because further particulars were not provided.⁵⁰

2.26 The LSC may then decide to:

• investigate the complaint – in 1998/9 this occurred with respect to 62 complaints (or 2.2% of all complaints): 51 against solicitors, 5 against barristers and 6 against licensed conveyancers;⁵¹
• refer the complaint to the appropriate Council (if this is done the complaint must be referred “so far as practicable” within 21 days of the receipt of the complaint or further particulars requested by the LSC)⁵² – in 1998/9 this occurred with respect to 849 complaints (or 29.6% of all complaints): 788 against solicitors, 59 against barristers, and 2 against licensed conveyancers;⁵³
• dismiss the complaint on the grounds that it is “vexatious, misconceived, frivolous or lacking in substance”⁵⁴ – in 1998/9 this occurred with respect to 197 complaints (or 6.9% of all complaints): 177 against solicitors, and 20 against barristers;⁵⁵ or
• if the complaint involves a consumer dispute, refer the consumer dispute to mediation⁵⁶ – in 1998/9 this occurred with respect to 1,382 complaints (or 48% of all complaints): 1,320 against solicitors, 57 against barristers, and 5 against licensed conveyancers.⁵⁷

INVESTIGATION OF COMPLAINTS

2.28 Formal investigation is most often carried out by the relevant Council once a complaint has been referred. The Councils have the ability to delegate their powers under Part 10.⁶⁰ Some investigations are carried out by the OLSC when the LSC decides to retain some complaints. Of the 752 complaints referred to the Law Society Council in 1998/9, 698 were referred for investigation by the Council, and, of the 59 complaints referred to the Bar Council,

57 were referred for investigation.⁶¹ The OLSC handled 2,057 files in the same period, but only 62 involved investigation as opposed to some type of formal or informal mediation.⁶²

2.29 At the initial stage the LSC, or the Councils (on receipt of a complaint from the LSC) may:

• if the matter is a consumer dispute, refer it to mediation;⁶³
• dismiss the complaint if further particulars are not supplied or the particulars are not verified;⁶⁴
• refer matters to a costs assessor;⁶⁵ or
• investigate the complaint.

2.31 Complaints referred to the Bar Council for investigation are distributed by the Professional Affairs Director to one of four Professional Conduct Committees established by the Bar Council. Each Committee is chaired by a Senior Counsel who is a member of the Bar Council and usually consists of around a dozen barristers, two lay members and an academic member. Each committee investigates complaints referred to it and ultimately produces a report which usually includes a recommendation to the Bar Council as to what action it should take.⁶⁷

Supervisory role of the Legal Services Commissioner

2.32 The LSC may take over the investigation of a complaint from a Council.⁶⁸ While the OLSC’s Annual Reports do not provide statistical information on the use of this power, in 1998/9 27 complaints at the Law Society were “referred to, or finalised by” the LSC.⁶⁹

DETERMINATIONS

2.33 The Councils or LSC must ultimately form a view whether there is a “reasonable likelihood” that the Tribunal will be “comfortably satisfied” that the practitioner is guilty of either unsatisfactory professional conduct or professional misconduct.

2.34 If there is no “reasonable likelihood” of a finding of unsatisfactory professional conduct or professional misconduct, the complaint must be dismissed.⁷⁰ In 1998/9, 465 complaints were dismissed for this reason.

2.35 If there is a “reasonable likelihood” of a finding of professional misconduct, the complaint must be referred to the Tribunal.⁷¹

2.36 If there is a “reasonable likelihood” of a finding of unsatisfactory professional conduct, the Council or LSC may:

• dismiss the complaint because of the practitioner’s previous good record – 22 such dismissals occurred in 1998/9;⁷²
• reprimand the practitioner with consent – 45 such reprimands were issued in 1998/9;⁷³ or
• refer the complaint to the Tribunal.⁷⁴

REVIEW BY THE LEGAL SERVICES COMMISSIONER OF COUNCIL DECISIONS

2.38 If a Council dismisses a complaint, issues a reprimand or omits allegations originally made when referring a complaint to the Tribunal, the complainant may request that the LSC review the decision.⁷⁷ A Council may also request a review of its own decision and the LSC may also initiate a review.⁷⁸ A review may also be requested if a Council does not notify the complainant of a decision within six months of the complaint being referred to the Council (the failure to notify is deemed to be a dismissal).⁷⁹ However, the LSC may postpone the review if there is good reason for the Council’s delay.⁸⁰

2.39 In 1998/9 the Law Society made 453 reviewable decisions and the Bar Council made 72. In the same period 141 requests for reviews were made (representing 30% of the Law Society’s decisions and 9.72% of the Bar Association’s).

2.40 The request for a review must be made in writing within two months of the decision of the Council being notified to the complainant.⁸¹

2.41 The LSC has established an expert review panel, consisting of “senior practitioners, legal academics and retired judges who provide advice on review matters”.⁸²

2.42 In conducting the review, the LSC must consult with the relevant Council.⁸³ The Council must comply with the directions of the LSC and assist in the review or re-investigation.⁸⁴

2.43 As a result of the review the LSC can:

• confirm the Council’s decision to dismiss the complaint or issue a reprimand;⁸⁵
• refer the matter to mediation;⁸⁶
• direct a reinvestigation of any complaint or part of a complaint by the Council or the OLSC;⁸⁷
• issue a reprimand if the practitioner consents to the reprimand;⁸⁸ or
• institute proceedings before the Tribunal or direct the Council to do so.⁸⁹

MEDIATION

2.45 There is a number of provisions dealing with mediation. Section 142 provides that when a complaint is referred to the appropriate Council, the LSC can recommend that some or all of the complaint be referred to mediation. Section 144 also provides that a Council or LSC may, when dealing with a complaint, refer a consumer dispute for mediation. Mediation of a “consumer dispute” is stated to be:

not limited to formal mediation procedures and extends to encompass preliminary assistance in dispute resolution, such as the giving of informal advice designed to ensure that the parties are fully aware of their rights and obligations and that there is full and open communication between the parties concerning the dispute.⁹⁰

2.47 In 1998/9 56 complaints against legal practitioners were referred to the relevant Council for mediation (54 in relation to solicitors and 2 in relation to barristers).⁹⁴ In the same period some 1,342 complaints against practitioners⁹⁵ handled by the OLSC were involved in some form of formal or informal mediation.

THE TRIBUNAL

2.48 A complaint must be referred to the Tribunal if the relevant Council or the LSC decides that there is a “reasonable likelihood” of a finding of professional misconduct. Referral to the Tribunal is also an option when it is decided that there is a “reasonable likelihood” of unsatisfactory professional conduct. In 1998/9 the LSC referred 13 practitioners⁹⁶ to the Tribunal, the Law Society Council referred 20 solicitors⁹⁷ and the Bar Council referred one barrister.⁹⁸ When the Legal Services Division of the Administrative Decisions Tribunal was established on 6 October 1998, there were already 59 matters from the old Legal Services Tribunal. A further 23 new matters (21 concerning solicitors and 2 concerning barristers) were received between then and 30 June 1999. Twenty six of the 82 outstanding matters were disposed of by 30 June 1999.⁹⁹

Composition of the Tribunal

2.49 The composition of the Tribunal varies depending on whether the legal practitioner complained against is a barrister or solicitor. The Tribunal consists of one judicial member, one barrister member and one lay member in the case of complaint against barristers. In relation to complaints against solicitors, the Tribunal consists of a one judicial member, a solicitor member and a lay member.¹⁰⁰ The judicial members and barrister members for complaints against barristers appear to be drawn from a pool of practitioners referred to as “non presidential judicial (barrister) members” and the judicial members and solicitor members for complaints against solicitors appear to be drawn from a pool of “non presidential judicial (solicitor) members”.¹⁰¹ The lay members are drawn from a pool of “non presidential judicial (lay) members”.¹⁰² In judgments of the Tribunal, the members are often referred to as the “presiding judicial member”, “the judicial member” and “member” respectively.¹⁰³ The presiding judicial member is sometimes the Deputy President (Legal Services).

Parties before the Tribunal

2.50 When a complaint is brought to the Tribunal the LSC or the relevant Council becomes the informant.¹⁰⁴ The complainant is not a party to the matter. However, the following are entitled to appear before the Tribunal: the legal practitioner complained against, the relevant Council, the LSC, the Attorney General and the complainant.¹⁰⁵ Complainants are entitled to appear subject to leave, unless they are making a submission with respect to compensation, in which case they may appear as of right.¹⁰⁶ Anyone else may only appear subject to leave from the Tribunal. Those appearing may do so personally or they may be represented by a legal practitioner.¹⁰⁷

The information

2.51 When the information is filed in the Tribunal the practitioner must then file a reply to the allegations in the information.¹⁰⁸ The Tribunal may, on application of the LSC or Council who laid the information, vary the information to omit or add allegations.¹⁰⁹

Tribunal Hearings

2.52 Hearings before the Tribunal are generally to be conducted in public¹¹⁰ except that the hearing of a matter relating to unsatisfactory professional conduct will usually be conducted in private unless the presence of the public is found to be “in the public interest or the interests of justice”.¹¹¹

The Tribunal’s decision

2.53 If the practitioner is found not guilty the Tribunal must dismiss the information. In 1998/9, of the 33 Tribunal outcomes, three complaints were dismissed and one was withdrawn and dismissed.¹¹²

2.54 If the practitioner is found guilty of professional misconduct, the Tribunal can order that the practitioner be removed from the roll of practitioners.¹¹³ Nine solicitors were removed from the roll of practitioners in 1998/9.¹¹⁴ In addition, if the practitioner is found guilty of either professional misconduct or unsatisfactory professional conduct, the Tribunal can:

• order that the practitioner’s practising certificate be cancelled;¹¹⁵
• order that the practitioner not be issued with a practising certificate until a specified time has elapsed;¹¹⁶
• fine the practitioner up to $50,000 for professional misconduct and up to $5,000 for unsatisfactory professional conduct (to be paid to the Public Purpose Fund¹¹⁷ );¹¹⁸
• issue a public or private reprimand;¹¹⁹ and
• require the practitioner to undertake and complete a specified legal education course.¹²⁰

Table 2.4: Results of Tribunal proceedings, 1 July 1998 to 30 June 1999

respondent	result	number
Barrister	Dismissed	2
	Reprimanded (private)	1
Solicitor	Dismissed	1
	Removed from roll	9
	Reprimanded	5
	Reprimanded and fined (ranging from $1,000 to $25,000)	8
	Reprimanded, fined $10,000 and restricted practising certificate for 3 years	1
	Restricted practising certificate	1
	Suspended, practice restrictions, continuing legal education	1
	Withdrawn and dismissed	1
	Withdrawn/discontinued	2
Clerk	Application approved	1
	TOTAL	33

2.55 The low number of dismissals is probably the result of the requirement that there be a “reasonable likelihood” of a finding of unsatisfactory professional conduct or professional misconduct before Tribunal proceedings can be initiated by the relevant Council or LSC.

Compensation

2.56 Compensation in the form of payment, waiver or repayment may be ordered against the practitioner if found guilty, but the evidence must be provided by the complainant (the Councils and LSC have no standing in relation to compensation). The compensation can be up to $10,000 or more if the practitioner and complainant both consent.¹²² No compensation need be paid if the complainant has received or is entitled to receive compensation by court order or from the Fidelity Fund.¹²³

Costs

2.57 Costs orders can be made against a practitioner who is found guilty of professional misconduct or unsatisfactory professional conduct.¹²⁴ If the practitioner is found not guilty, the practitioner’s costs may be met (but only if “special circumstances so warrant”) from the Public Purpose Fund.¹²⁵

TRIBUNAL APPEAL PANEL

2.58 Any order or decision of the Tribunal may be appealed to a Tribunal Appeal Panel:¹²⁶

• on a question of law, as of right; and
• in relation to the merits of a decision, by leave from the Appeal Panel.¹²⁷

2.60 The appeal must be made within 28 days of the Tribunal furnishing the parties with written reasons.¹²⁹ As at 30 June 1999, only one appeal had been lodged from the Tribunal to the Appeal Panel.¹³⁰

APPEALS TO THE SUPREME COURT

2.61 An appeal to the Supreme Court lies against a decision of the Appeal Panel, but only in relation to a question of law.¹³¹

COMPLAINTS ARISING DURING THE COURSE OF AN INVESTIGATION

2.62 Under the current scheme the same procedural requirements must be followed in relation to additional complaints that arise during the course of an investigation as are followed with respect to the initial complaint. An additional complaint that arises during an investigation of a legal practitioner must therefore be separately initiated, investigated and a decision made about whether to refer it to the Tribunal, before it can be included with an already existing complaint or set of complaints. A formal investigative stage, between initiation of the a complaint and referral to the Tribunal, must take place to satisfy the requirements of Part 10 in relation to the investigation of complaints.¹³²

RESOLUTION OF COMPLAINTS OTHER THAN UNDER PART 10

2.63 Not all complaints against lawyers are handled by the LSC. Complaints can also be handled by the courts or within the relevant organisation.

Supreme Court

2.64 The Supreme Court retains an inherent jurisdiction as well as a general role in deciding negligence claims. Indeed, the Supreme Court’s inherent jurisdiction is expressly preserved by Part 10.¹³³ The Bar Council decided to apply to the Supreme Court to strike off one barrister in 1998/9.¹³⁴ The Supreme Court is strongly in favour of retaining its ultimate authority in relation to fitness for practice by determining who should be on the roll of legal practitioners.¹³⁵

The Legal Services Commissioner’s right to appear in the Supreme Court

2.65 The Legal Profession Act 1987 (NSW) allows the Bar Association and the Law Society to appear, by legal representative, before the Supreme Court when it exercises any of its functions in relation to barristers and solicitors respectively.¹³⁶ This includes appeals from the disciplinary process to the Court of Appeal as well as the exercise of the Supreme Court’s residual jurisdiction in relation to legal practitioners generally. The OLSC submitted that the same provision should be made with respect to the LSC as is currently made with respect to the Bar Association and Law Society.¹³⁷

Internal resolution

2.66 Some major organisations that employ solicitors have internal complaints management systems which may keep some matters out of the system established by Part 10. For example, the Legal Aid Commission has a mechanism for dealing with and resolving complaints from its clients. This mechanism has been described by the Audit Office as “comprehensive” and includes systems for monitoring client satisfaction.¹³⁸ The Office of the Director of Public Prosecutions has a Service Relations Office which provides a point of contact for complaints and suggestions and “seeks to identify the causes of dissatisfactions and tries to eliminate them”.¹³⁹

EVALUATING THE SYSTEM

2.67 This chapter has outlined the operation of the system for handling complaints against lawyers established by Part 10. One of the ways of evaluating the system is to measure its various components against criteria considered necessary for effective complaints handling. The following criteria have been adapted from a guide to good complaints handling practice prepared by the Commonwealth Ombudsman to assist government agencies with the establishment and maintenance of complaints handling systems.¹⁴⁰ They have particular relevance to the handling of consumer complaints, but can also apply to complaints relating to conduct:

• Commitment. This refers to the commitment of the relevant organisations to the complaints handling system and deals with such questions as whether appropriate and adequate resources (financial and other, including training and development) are devoted to the system.
• Fairness. A complaints handling system must be seen to be fair to all participants. Some of the necessary components of a fair system are that the system be:
  
  – transparent;

  – impartial (that is, without prejudice or bias);

  – confidential (including considerations of privacy); and

  – capable of offering appropriate outcomes or remedies.

  Important aspects of fairness include, for example, the provision of reasons for decisions and giving participants in the system the opportunity to respond and seek review.

• Accessibility. The term “accessibility” covers a wide range of issues including providing information (in different forms where appropriate) on:
  
  – complainants’ rights and responsibilities;

  – how to complain;

  – details of the process itself; and

  – what outcomes can be expected.

  Use of the system should also be encouraged by, for example, visibility, providing assistance in making complaints and eliminating, where possible, barriers to entering the system, such as complex language and obscurity.

• Responsiveness. This is about how complaints are dealt with and includes consideration of such matters as setting targets for the timely completion of various stages, establishing and documenting procedures and collecting relevant data.
• Effectiveness. This refers to reviewing the ability of a complaints handling body to address complaints and about the use of data to improve processes. Input relevant to such reviews will come from complainants, practitioners, the complaints handling bodies and the public.
• Accountability. A complaints handling system must be open and accountable and allow the participants and the public to judge whether the system works effectively. Reporting is an important part of this aspect and can involve publication of details of activities, including data about complaints made, time taken, remedies granted, levels of satisfaction achieved and action taken to improve the system.

1. Legal Profession Act 1987 (NSW) s 136(1).

2. Legal Profession Act 1987 (NSW) s 136(2)(a).

3. Legal Profession Act 1987 (NSW) s 136(2)(b).

4. Legal Profession Act 1987 (NSW) s 135.

5. OLSC, Annual Report 1998/9 at 55 and 57.

6. Legal Profession Act 1987 (NSW) s 137.

7. Legal Profession Act 1987 (NSW) s 137(2).

8. Legal Profession Act 1987 (NSW) s 137(3), as amended by the Legal Profession Amendment (Complaints and Discipline) Act 2000 (NSW) Sch1[1].

9. Legal Profession Act 1987 (NSW) s 137(4).

10. OLSC, Annual Report 1998/9 at 54.

11. OLSC, Annual Report 1997/8 at 53.

12. OLSC, Annual Report 1996/7 at 14 and 18.

13. Legal Profession Act 1987 (NSW) s 127(2).

14. Legal Profession Act 1987 (NSW) s 127(1).

15. Legal Profession Act 1987 (NSW) s 143.

16. Legal Profession Act 1987 (NSW) s 140, inserted by the Legal Profession Amendment (Complaints and Discipline) Act 2000 (NSW) s 3 and Sch 1.

17. Legal Profession Act 1987 (NSW) s 138.

18. Legal Profession Act 1987 (NSW) s 134.

19. OLSC, Annual Report 1998/9 at 55.

20. OLSC, Annual Report 1998/9 at 57.

21. See Protected Disclosures Act 1994 (NSW) s 10(b).

22. New South Wales, Professional Standards Council, Whistleblowing in the Professions (Consultative Paper, April 2000). See para 4.22-4.23.

23. Legal Profession Act 1987 (NSW) s 128(1).

24. As part of a system jointly administered by the OLSC and the Department of Fair Trading: See Conveyancers Licensing Act 1995 (NSW) s 82. The Department of Fair Trading is currently conducting a review of the regulation of conveyancers, including the operation and application of Part 10 in respect of conveyancers: New South Wales, Department of Fair Trading, Review of the Conveyancers Licensing Act 1995 (Issues Paper, 2000).

25. Public Notaries Act 1997 (NSW) s 14.

26. Legal Profession Act 1987 (NSW) s 128(2). Complaints against Judicial Officers in New South Wales are dealt with in accordance with Judicial Officers Act 1986 (NSW): see Bruce v Cole (1998) 45 NSWLR 163.

27. OLSC, Preliminary Submission 11-12.

28. See Arbitration (Civil Actions) Act 1983 (NSW) s 5.

29. See Commercial Arbitration Act 1984 (NSW).

30. See, for example, District Court Act 1973 (NSW) s 164E; Fair Trading Tribunal Act 1998 (NSW) Sch 3; Land and Environment Court Act 1979 (NSW) s 61H; and Supreme Court Act 1970 (NSW) s 110K.

31. Supreme Court Rules 1970 (NSW) Part 72.

32. See Legal Profession Act 1987 (NSW) s 173(1) and Part 11 Div 6, especially s 208S.

33. A number of submissions have suggested extending the scope of the complaints system to cover various people including judges, costs assessors and legal practitioners acting as arbitrators, mediators and referees: see, for example, B Golder, Preliminary Submission at 1-2; and NSW Legal Reform Group, Preliminary Submission at para 6.3; W Lawrence, Preliminary Submissions; while others have suggested the powers of the Judicial Commission might be extended to cover such situations: NSW Bar Association, Preliminary Submission 1 at para 66.

34. Law Society of NSW, Professional Standards Department, Annual Report 1998/9 at 14.

35. Law Society of NSW, Professional Standards Department, Annual Report 1998/9 at 14.

36. Law Society of NSW, Professional Standards Department, Annual Report 1998/9 at 15.

37. Law Society of NSW, Professional Standards Department, Annual Report 1998/9 at 14.

38. Legal Profession Amendment (Incorporated Legal Practices) Bill 2000 (NSW). See also New South Wales, Attorney General’s Department, Legal Profession Advisory Council, Incorporation of Solicitor’s Practices Under the Corporations Law (Report, 1988); and J W Shaw, “Incorporation of legal practices under the Corporations Law” (1999) 37(10) Law Society Journal 67. This issue was also raised by the OLSC during preliminary consultations.

39. P Rosier (letter to the Editor), “Incorporation makes sense” Australian Financial Review (7 June 2000) at 59.

40. OLSC, Annual Report 1998/9 at 56.

41. NSW Bar Association, Preliminary Submission 2 at 5.

42. NSW Bar Association, Preliminary Submission 2 at 5.

43. A separate regime for the Bar may have some political support: See New South Wales, Parliamentary Debates (Hansard) Legislative Assembly (10 November 1993) Whelan, Debate on the second reading at 5097.

44. Law Society of NSW Professional Standards Department, Annual Report 1998/9 at 32.

45. OLSC, Annual Report 1998/9 at 59.

46. OLSC, Annual Report 1997/8 at 60.

47. OLSC, Annual Report 1996/7 at 19.

48. Legal Profession Act 1987 (NSW) s 136(3).

49. Legal Profession Act 1987 (NSW) s 139(1).

50. OLSC, Annual Report 1998/9 at 54.

51. OLSC, Annual Report 1998/9 at 54.

52. Legal Profession Act 1987 (NSW) s 141.

53. OLSC, Annual Report 1998/9 at 54.

54. Legal Profession Act 1987 (NSW) s 139(2).

55. OLSC, Annual Report 1998/9 at 54.

56. Legal Profession Act 1987 (NSW) s 144.

57. OLSC, Annual Report 1998/9 at 54.

58. Legal Profession Act 1987 (NSW) s 155A(1).

59. Legal Profession Act 1987 (NSW) s 155A(2).

60. Legal Profession Act 1987 (NSW) s 157. NB – the power of the Bar Council to delegate generally under the Act has been extended by Legal Profession Act 1987 (NSW) s 51(2).

61. OLSC, Annual Report 1998/9 at 5.

62. OLSC, Annual Report 1998/9 at 54.

63. Legal Profession Act 1987 (NSW) s 144.

64. Legal Profession Act 1987 (NSW) s 144.

65. Legal Profession Act 1987 (NSW) s 153.

66. Law Society of NSW, Professional Standards Department, Annual Report 1998/9 at 18.

67. J Gormly, “Conduct of Complaints Against Barristers” [1998] Stop Press (No 48) at 1; NSW Bar Association, Annual Report 1999 at 16-24.

68. Legal Profession Act 1987 (NSW) s 147A.

69. OLSC, Annual Report 1998/9 at 57.

70. Legal Profession Act 1987 (NSW) s 155(4).

71. Legal Profession Act 1987 (NSW) s 155(2).

72. Legal Profession Act 1987 (NSW) s 155(3)(b).

73. Legal Profession Act 1987 (NSW) s 155(3)(a).

74. Legal Profession Act 1987 (NSW) s 155(2).

75. Information supplied by the NSW Bar Association (26 June 2000).

76. Legal Profession Act 1987 (NSW) s 155(5).

77. Legal Profession Act 1987 (NSW) s 158(1).

78. Legal Profession Act 1987 (NSW) s 159(2).

79. Legal Profession Act 1987 (NSW) s 158(4).

80. Legal Profession Act 1987 (NSW) s 158(5).

81. Legal Profession Act 1987 (NSW) s 158(2) and 158 (3).

82. OLSC, Annual Report 1998/9 at 47.

83. Legal Profession Act 1987 (NSW) s 159(3).

84. Legal Profession Act 1987 (NSW) s 160(4) and 161.

85. Legal Profession Act 1987 (NSW) s 160(1)(a).

86. Legal Profession Act 1987 (NSW) s 160(1)(b).

87. Legal Profession Act 1987 (NSW) s 160(1)(c), (c1) and (c2).

88. Legal Profession Act 1987 (NSW) s 160(1)(c3).

89. Legal Profession Act 1987 (NSW) s 160(1)(d).

90. Legal Profession Act 1987 (NSW) s 145A.

91. Legal Profession Act 1987 (NSW) s 144(2).

92. Legal Profession Act 1987 (NSW) s 147(2).

93. Legal Profession Act 1987 (NSW) s 160(1)(b).

94. OLSC, Annual Report 1998/9 at 5.

95. 1,281 in relation to solicitors; 56 in relation to barristers; and 5 in relation to licensed conveyancers: OLSC, Annual Report 1998/9 at 54.

96. OLSC, Annual Report 1998/9 at 13.

97. OLSC, Annual Report 1998/9 at 57. But see Law Society of NSW, Professional Standards Department, Annual Report 1998/9 at 11 and 23, where it is stated that the Law Society Council resolved to refer 12 matters to the ADT in 1998/9 – this may be because other cases were referred to the old Legal Services Tribunal in the early part of the same period.

98. Information supplied by the NSW Bar Association (26 June 2000).

99. ADT, Annual Report 1998/9 at 23.

100. Administrative Decisions Tribunal Act 1997 (NSW) Sch 2 Pt 3 Div 3 cl 4.

101. The current membership of these pools is detailed in New South Wales, Law Almanac 2000 (LBC Information Services, Sydney, 2000) at 83.

102. Law Almanac 2000 at 83.

103. See, for example, Law Society of NSW v Hurley [1999] NSWADT 140.

104. Legal Profession Act 1987 (NSW) s 167(1).

105. Legal Profession Act 1987 (NSW) s 169(1).

106. Legal Profession Act 1987 (NSW) s 169(2).

107. Legal Profession Act 1987 (NSW) s 169(4).

108. Legal Profession Act 1987 (NSW) s 167(3).

109. Legal Profession Act 1987 (NSW) s 167A(1).

110. In accordance with s 75 of the Administrative Decisions Tribunal Act 1997 (NSW): Legal Profession Act 1987 (NSW) s 170(2).

111. Legal Profession Act 1987 (NSW) s 170(1).

112. OLSC, Annual Report 1998/9 at 59.

113. Legal Profession Act 1987 (NSW) s 171C(1)(a).

114. OLSC, Annual Report 1998/9 at 59.

115. Legal Profession Act 1987 (NSW) s 171C(1)(b).

116. Legal Profession Act 1987 (NSW) s 171C(1)(c).

117. Legal Profession Act 1987 (NSW) s 171I.

118. Legal Profession Act 1987 (NSW) s 171C(1)(d).

119. Legal Profession Act 1987 (NSW) s 171C(1)(e)

120. Legal Profession Act 1987 (NSW) s 171C(1)(f).

121. This includes decisions taken by the old Legal Services Tribunal as well as the new Legal Services Division of the ADT: OLSC, Annual Report 1998/9 at 59. See ADT, Annual Report 1998/9 at 23 for figures relating only to the new Tribunal.

122. Legal Profession Act 1987 (NSW) s 171D.

123. Legal Profession Act 1987 (NSW) s 171D(3).

124. Legal Profession Act 1987 (NSW) s 171E(1).

125. Legal Profession Act 1987 (NSW) s 171E(2).

126. Legal Profession Act 1987 (NSW) s 171F.

127. Administrative Decisions Tribunal Act 1997 (NSW) s 113(2).

128. Administrative Decisions Tribunal Act 1997 (NSW) s 24.

129. Administrative Decisions Tribunal Act 1997 (NSW) s 113(3).

130. ADT, Annual Report 1998/9 at 37.

131. Administrative Decisions Tribunal Act 1997 (NSW) s 119(1).

132. Contained in Div 5. See Barwick v Law Society of NSW [2000] HCA 2 at para 61-64.

133. Legal Profession Act 1987 (NSW) s 171M(1). See Barwick v Law Society of NSW [2000] HCA 2 at para 118.

134. Information supplied by the NSW Bar Association (26 June 2000).

135. J Spigelman, Preliminary Submission at 1; But see para 6.28-6.29 in relation to appeals from decisions of the Tribunal.

136. Legal Profession Act 1987 (NSW) s 51(b) and 54(1)(b).

137. OLSC, Preliminary Submission Appendix, item 2.

138. New South Wales, Audit Office, Key Performance Indicators (Performance Audit Report, 1998) at 54. As at the end of June 1999 there has been no external reporting of this system.

139. New South Wales, Office of the Director of Public Prosecutions, Annual Report 1998/9 at 63.

140. Australia, Commonwealth Ombudsman’s Office, A Good Practice Guide for Effective Complaint Handling (2nd edition, 1999). It should be noted that the system under Part 10 is more complex than a simple model of a client complaining to a government agency about that agency’s activities in that the participants in the system (practitioners, complainants, the professional associations, the LSC and the public) have various, and often overlapping, interests in the operation of the system and its outcomes. See also Alaska, Ombudsman, “Devising a Government Complaint System: Guide to Good Practice” (as at 21 July 2000) «www.state.ak.us/ombud/complsys.htm»; and Performance Audit Report 1998 at 54.