What do I do when I receive a complaint?

Receiving a complaint can be a stressful and worrying experience. However, in some circumstances, a complaint may be a useful way of obtaining valuable client feedback about the services offered by you and your firm and the way you communicate with your clients.

To ensure the complaint is handled efficiently and effectively we recommend it is dealt with promptly and that you try to resolve the complaint internally before it reaches the Lawyers Complaints Service (LCS). All lawyers' practices must have an effective internal complaints management system in place and if a complaint is received by you or your firm directly, it should be dealt with in accordance with this system (see our Practice Briefing, Running an effective internal complaints process). For sole practitioners and barristers that may include the referral of complaints to an independent lawyer for consideration.

Most complaints the LCS receives have not been through a lawyer’s internal complaints process. Where a phone or email inquiry is received, the LCS will often refer it back to the lawyer or the firm for action where appropriate. It is a good idea to make information on your complaints processes known to clients so that they are aware that this is an option and may be more likely to consider it before contacting the LCS.

If you consider a complaint internally, this may be a good time to check how your internal complains process is working. For example:

• Did the client know about the internal complaints process?
• Is your complaints procedure readily and easily accessible to the public?
• Are complaints dealt with swiftly and fairly?
• Is the client advised of his/her right to make a formal complaint to the LCS?

If you are notified about a complaint by the LCS you will be invited to respond to it and to resolve it if you think you can. You may like to seek advice from another lawyer before responding. On occasion the LCS may also require you to produce documents or the relevant file. You are required to comply with any requests.

Who can make a complaint?

Anyone may make a complaint to the LCS. A complaint can be made against:

• a lawyer or former lawyer (who was practising at the time of the alleged conduct);
• an incorporated law firm or a former incorporated law firm;
• someone who is not a lawyer but who is or was an employee of a lawyer or an incorporated law firm.

Can someone other than my client make a complaint?

Yes. Section 132 (1) of the Lawyers and Conveyancers Act 2006 (LCA) says “any person” may complain to the complaints service.

What complaints does the Lawyers Complaints Service investigate?

The LCS is obliged to consider all complaints sent to it. Complaints vary but usually involve issues with the service provided, fees charged or the conduct of the lawyer concerned.

A Standards Committee is not able to deal with complaints relating to costs of less than $2,000 (exclusive of GST) and/or those rendered more than two years prior the date of the complaint unless there are special circumstances. The complaint may still need to be put before a Standards Committee to consider whether special circumstances exist.

It is important to remember that if you receive a complaint about costs, you will be unable to commence or continue proceedings for the recovery of these costs until after the complaint has been fully disposed of.

What is the first step when a complaint is received?  

The LCS will undertake an initial assessment of the complaint to determine whether it should take no action or no further action on the complaint. The grounds on which no action or no further action can be taken are specified in the legislation. More information about this process and the grounds is available:

If the LCS decides to take no action or no further action on the complaint, the parties will be informed.

If the LCS does not consider that one or more of the available grounds to take no action or no further action apply, it must refer the complaint to a Standards Committee.

There is no right of review to the Legal Complaints Review Officer (LCRO) from a decision by the LCS to take no action or no further action on a complaint. A complainant who is dissatisfied with the decision can apply to the High Court for judicial review.

What is the Early Resolution Service?

The Early Resolution Service attempts to resolve certain complaints at an early stage. If a complaint about you is assessed as possible to resolve, you will be contacted by a Professional Standards Officer by telephone. Some complaints can be resolved satisfactorily in this manner.

What can a Standards Committee do when it receives a complaint?

On receipt of a complaint a Standards Committee has three options:

• To take no action or no further action;
• To refer the parties to mediation; or
• To inquire into the complaint.

Why is the Lawyers Complaints Service taking seriously what seems to me to be a trivial or vexatious complaint?

The Lawyers Complaints Service has a statutory duty under s132(1) of the LCA to deal with all complaints fairly, efficiently and in an effective manner.

The LCS must undertake an initial assessment of a complaint before it is referred to a Standards Committee. The LCS will consider whether the subject matter of a complaint is trivial or if it is vexatious at this stage and, where appropriate, may decide no further action is required.

If a complaint is referred by the LCS to a Standards Committee, the Committee may still decide to take no further action on the complaint because the Committee considers that the complaint is trivial or vexatious.

Do I have to respond?

There is no statutory requirement for a lawyer to respond in writing but a failure to do so when asked may result in the Standards Committee making a decision on the complaint without the benefit of your perspective and can have disciplinary consequences. Sometimes all that is required is a brief response.

How should I respond?

• Be prompt with your response.
• Ensure that you cover all matters raised by the complaint, but do not make your explanation too long. There is no need to include your file unless this is requested. Only provide documentation if it is relevant to the allegations made in the complaint.
• If you do not want to answer a particular point (if a matter is currently before the Court, for example) explain why.
• If a number of different allegations are made, list and deal with each one separately.
• If a complaint is justified, acknowledge this, if appropriate, and apologise.
• Answer any follow-up questions promptly.
• If you are finding it difficult to respond, ask someone else in your firm to review the file and prepare the response on your behalf. In some firms this is done routinely. If you are a sole practitioner, ask another sole practitioner, your attorney, or someone from the National Friends Panel who may be able to help. This can provide a different perspective to the complaint.
• Do not do nothing. A failure to respond can in itself become the subject of an own motion investigation by the Standards Committee and make matters worse. If you cannot face responding, seek assistance as soon as possible (see next question). If you need to ask for an extension of time do so but provide reasons why this is sought and a date by when you will respond.

I feel very stressed about the complaint. Who can help or who can I talk to?

It is very common to feel upset and/or angry when you are the subject of a complaint – this is normal and perhaps even more so when you feel that the complaint has no basis. If there is nobody within your firm to talk to you could discuss the matter with a trusted colleague, your s30 attorney if you are a sole practitioner, or with a member of the Friends Panel.

You can also visit the Practising Well section of the website.

Will my response be sent to the complainant?

Yes, in accordance with the provisions of natural justice. However if your response is unprofessional or likely to exacerbate the matter it may be sent back to you with a suggestion that you resubmit a more reasonable response. We discourage you from including highly sensitive personal information in your response (such as medical records) as well as personal information of third parties.  If it is relevant to your response and you consider it must be provided, please signal clearly if it is confidential. In some cases, we may provide this information only to the Standards Committee and not to the complainant.

Can I have an extension of time in which to respond?

A lawyer is generally given up to 14 days in which to respond. There is an obligation for the LCS to deal with matters as soon as reasonably practicable. An extension may be granted for good reason. This is not automatic.

Who else will know about the complaint?

Section 188 of the LCA imposes strict confidentiality requirements on the LCS. Details of the complaint will be available to members of the Standards Committee assigned your complaint and LCS staff.

Complaint decisions are confidential unless the Standards Committee directs otherwise, although an anonymised copy or summary of your complaint may be published. If a named publication order is contemplated by a Standards Committee you will be given the opportunity to provide submissions before a final decision is made.

Do I have to tell my supervisor/PI Insurer?

If you are an employed barrister or employed barrister and solicitor the LCS will send a copy of the complaint to your employer. You should of course discuss this with your supervisor as soon as possible.

Whether you need to notify your or your firm’s insurer will depend on the terms of the relevant PI policy.

The complaint is about a fee. I am an employed lawyer and my supervisor set the fee. Why is the complaint addressed to me?

The complaint will be sent to the lawyer named in the complaint and their supervisor, where appropriate. Any reduction of a fee is a matter for the firm rather than an employed lawyer.

What happens if the complaint is about a fee but my firm has already commenced proceedings to recover the fee?

Section 161 of the Lawyers and Conveyancers Act 2006 says that once a Standards Committee gives notice that it has received a complaint about a fee no proceedings for the recovery of the amount of the bill may be commenced or proceeded with until after the complaint has been finally disposed of.

Can I attend any hearing?

If the matter proceeds to a hearing (usually only in more serious matters) this will normally be on the papers. Section 153 provides for hearings on the papers unless the Standards Committee directs otherwise.

What powers does a Standards Committee have?

Having conducted a hearing into the matter, a Committee can take no further action, determine to lay a charge before the Disciplinary Tribunal or make a finding of unsatisfactory conduct. A Committee can also order the payment of costs if it does not make such a finding of unsatisfactory conduct but considers that the proceedings were justified.

The orders that can accompany an unsatisfactory conduct finding are set out in s156 and include:

• That some or all of the terms of an agreed settlement (made at mediation) be all or part of a final determination of the complaint
• Making a censure or reprimand, or ordering an apology to be made
• Ordering the lawyer to pay compensation up to $25,000 (for actual loss)
• Ordering that fees be reduced or cancelled or refunds made and errors or omissions rectified
• Ordering that a lawyer’s practice be made available for inspection
• Ordering a lawyer to take management advice and undergo training or education such as attending the Stepping Up course.
• Fining a lawyer up to $15,000
• Ordering a lawyer to pay costs of the inquiry and/or costs/expenses of complainant

Who is on a Standards Committee?

A Standards Committee is made up of experienced lawyers and lay members who are persons of standing in the community. There are 22 Standards Committees around the country. A Standards Committee considering a complaint must have at least two lawyers and one lay member (but may have up to seven lawyers and two lay members).

What is an “own motion” investigation?

A Standards Committee may commence an own motion investigation under s 130(c) of the LCA. Such an investigation can be triggered in a number of ways such as a confidential report made under Rules 2.8 or 2.9 of the Lawyers and Conveyancers (Lawyers: Rules of Conduct and Client Care) Regulations 2008, a media article or a trust account inspection report. Once commenced an own motion investigation will generally follow the same process as a complaint

Do I have a right of review or appeal?

Yes. With one exception, you and/or the complainant can apply for a review of a decision of a Standards Committee to the Legal Complaints Review Officer (LCRO) within 30 working days of the decision. The application must be accompanied by the prescribed fee. The exception is if the LCS decides to take no action or no further action on a complaint under s135A of the LCA before the matter is referred to a Standards Committee – this decision cannot be reviewed the LCRO.

The LCRO is appointed by the Ministry of Justice to provide an independent review of Standards Committee decisions is administered by the Ministry of Justice. Information about the LCRO process is available on the Ministry of Justice website.

If the Standards Committee determines to lay a charge before the Disciplinary Tribunal can I appeal that decision?

Yes. A determination to lay a charge can be reviewed by the LCRO.

What can the Disciplinary Tribunal do?

The Lawyers and Conveyancers Disciplinary Tribunal hears and determines complaints and own motion investigations referred to it by Standards Committees and the LCRO. Usually these will be the most serious complaints which can involve a public hearing.

If the Disciplinary Tribunal finds a lawyer guilty of unsatisfactory conduct or professional misconduct, it can make any order that a Standards Committee can make, plus certain additional orders such as removing the lawyer’s name from the Roll of Barristers and Solicitors (striking off) or suspending the lawyer for up to three years.

If the person complained about is an employee of a lawyer, the Disciplinary Tribunal can order that their present employment be terminated and that no other law firm can employ them.

The Disciplinary Tribunal is administered by the Tribunals Division of the Ministry of Justice.

If a costs order or a fine is made against me when do I have to pay this? Can I pay it by instalments? Will it affect my ability to renew my practising certificate?

Non-compliance with any orders made by a Standards Committee, the LCRO or the Disciplinary Tribunal can be taken into account at practising certificate renewal time. If you are unable to make payment of a costs or fines order in full within 30 days you can suggest a payment arrangement for consideration. A continued failure to pay may result in the matter being referred for formal debt collection.

How can I find out what other decisions there have been by Standards Committees?

Unless there is a publication order, Standards Committee decisions are confidential to the parties. Published decisions are available on the Law Society's Standards Committee decisions page.

How can I find out about other decisions by the LCRO?

LCRO decisions are published on the Ministry of Justice website.

How can I find out about decisions of the Disciplinary Tribunal?

Disciplinary Tribunal decisions are published on the Ministry of Justice website.

What if my name is to be published? Where will it be published?

Most Standards Committee decisions that are published are anonymised. Named publication is rare at the level of the Standards Committee but can occur. Law Society Board approval is required if named publication is contemplated. If your name is published the direction as to where this will take place will be made by the Law Society. In most cases this is on the Law Society website.

Should I instruct a lawyer to represent me?

Only if you think it necessary. The LCRO has commented that it would be preferable to hear the “voice” of the lawyer rather than that of the lawyer’s advocate.

Can I contact the complainant while the complaint is being investigated?

Yes, so long as no pressure is placed on the complainant to withdraw the complaint. An apology, when appropriate, can be a very effective way of avoiding the escalation of a complaint.

What are the consequences for me if the complaint is not upheld?

The complaint will be recorded with a finding of no further action. Over 80% of complaints result in such a finding.