A complaint, although often viewed as an intrusion into a lawyer’s practice can, in some circumstances, 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.
Receiving a complaint from a client can be a stressful and worrying experience. So that the complaint is handled efficiently and effectively it is recommended that it be dealt with promptly and that you try to resolve the complaint internally before it reaches the Lawyers Complaints Service. All lawyers' practices must have an effective internal complaints management system in place. For sole practitioners that may include the reference of complaints to an independent lawyer for consideration.
If the complaint is made direct to your firm then it should be dealt with in accordance with your firm’s own internal complaints procedure (see our Practice Briefing, Running an effective internal complaints process). All firms are required to have an internal complaints procedure. This may be a good time to ascertain how that process is working. For example:
A large number of complaints made to the Lawyers Complaints Service have not been through the lawyer’s internal complaints procedure first. On the complaints form some complainants state they did not want to do that or that they considered there was “no point”. Others say that their complaint to the firm was “dismissed” or not treated satisfactorily. Most lawyers who have been through the formal complaints process have said that they wished they had dealt with the complaint properly - directly with the client when it was first raised.
Staff of the Lawyers Complaints Service will always refer potential complainants back to the firm if they receive a telephone call or an informal inquiry. Once a formal letter of complaint is received it cannot then be referred back to the firm but becomes a formal complaint.
If you receive a notice of a complaint from the Lawyers Complaints Service you will be invited to respond to the complaint. You may like to seek advice from another lawyer before responding if you are unsure of any issues or would like a ‘second pair of eyes’ to review the matter. On occasion the Lawyers Complaints Service may also require you to produce documents or the file. You are required to comply with this requirement.
Anyone may make a complaint to the Lawyers Complaints Service. A complaint can be made against:
Yes. S132 (1) of the LCA says “any person” may complain to the complaints service.
The Lawyers Complaints Service is obliged to investigate all complaints brought before it. Complaints can vary but usually fall within two categories, conduct and costs.
A Lawyers 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
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.
The Early Resolution Service attempts to resolve certain non-serious complaints at an early stage. If a complaint about you is referred to the Early Resolution Service you will be contacted by a Legal Standards Officer by telephone. Some complaints can be resolved swiftly and satisfactorily in this manner.
This question arises where a lawyer considers there is absolutely no basis to the complaint. An example is where the complainant is on the opposing side to the lawyer’s client in a family law matter and has his/her own lawyer. The lawyer could well think that the complainant is simply transferring anger at the client to the lawyer.
The Lawyers Complaints Service has a statutory duty under s132 (1) the Lawyers and Conveyancers Act 2006 (LCA) to deal with all complaints fairly efficiently and in an effective manner.
A complaint may not need to be investigated if the lawyer, at the time of the conduct complained about, is not providing regulated services unless the complaint is serious and may be determinative of whether or not a lawyer is fit and proper to practise law.
There is no statutory requirement for a lawyer to respond in writing but a failure to do so may result in a requirement from the Committee for you to attend in person and will almost always make things worse.
See the article published in LawTalk in 2014 called “Lawyers' duty to co-operate” by barrister Paul Collins.
It is very common to feel upset and/or angry when you are the subject of a complaint – this is very 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 contact your local Law Society branch manager for further assistance and information about where you can obtain assistance or about Practising Well.
Yes, in accordance with the provisions of natural justice. However if your response is unprofessional and likely to exacerbate the matter it may be sent back to you with a suggestion that you resubmit a more reasonable response.
A lawyer is generally given up to 14 days in which to response. There is an obligation for the Lawyers Complaints Service to deal with matters expeditiously. An extension may be granted for good reason. This is not automatic.
On receipt of a complaint a Standards Committee has three options:
Section 188 of the LCA imposes strict confidentiality provisions on the Lawyers Complaints Service. Details of the complaint will be available to members of the Standards Committee assigned your complaint and staff of the Lawyers Complaints Service. If a name publication order is contemplated by a Standards Committee you will be given the opportunity to present submissions.
If you are an employed barrister or barrister and solicitor the Lawyers Complaints Service 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 the firm’s insurer will depend on the terms of the firm’s 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 supervisor, where appropriate. Any reduction of a fee is a matter for the firm rather than an employed lawyer.
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.
The New Zealand Law Society cannot provide legal advice.
However it is the view of the Law Society that a person cannot be bound to refrain from making a complaint to the Law Society in relation to a lawyer’s conduct. Although the fact that a person agreed not to do so or was party to a confidentiality agreement, and subsequently made a complaint, might be one of the factors that are considered in any inquiry into the complaint if a standards committee considered that to be relevant.
Agreements between lawyers and potential complainants, in which the potential complainant agrees not to complain in return for some perceived advantage from or concession by the lawyer, could be seen to foster corrupt practices and abuses of power.
It is our view that lawyers should not be able to “buy off” complainants. This is a view that has been endorsed by the Legal Complaints Review Office, the statutory appeal body for lawyer complaints. The practice, if unchallenged, could enable the more powerful person in the professional relationship to avoid accountability.
It would be a matter between the complainant and the lawyer to deal with any potential consequences of a breach of a confidentiality agreement. That might involve a demand for repayment of money paid out, for example, but that would be a private matter between the parties and it could not lead to the forcible suppression of a professional complaint.
A potential complainant may wish to discuss this with an independent lawyer or a practising lawyer can discuss it with a member of the National Panel of Friends before pursuing a complaint or reporting the conduct to the Law Society for it to consider whether a standards committee should investigate it of its own motion.
If the matter proceeds to a hearing (usually only in more serious matters) this will normally be on the papers. S153 provides for hearings on the papers unless the Standards Committee otherwise directs.
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:
A Standards Committee is made up of senior experienced lawyers and lay members who are persons of standing in the community. There are 24 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). The names of those sitting on the Standards Committee considering your complaint will be provided on request from either the complainant or the lawyer.
A Standards Committee may commence an own motion investigation under s 130(c) LCA. Such an investigation can be triggered in a number of ways such as a confidential report made under RCCC 2.8 or 2.9, a media article or a trust account inspection report. Once commenced it will generally follow the same process as a complaint
Yes. You and/or the complainant can apply for a review to the Legal Standards Review Officer (LCRO) within 30 working days of the decision. The application must be accompanied by the prescribed fee. The LCRO is appointed by the Ministry of Justice to provide an independent review of Standards Committee decisions and the Ministry of Justice administers the LCRO service. Information about the LCRO process is available on the Ministry of Justice website.
Yes. A determination to lay a charge can be reviewed by the LCRO.
The Lawyers and Conveyancers Disciplinary Tribunal hears and determines complaints 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.
Non-compliance with any orders can be taken into account at practising certificate renewal time. If you are unable to make payment in full within 30 days you can suggest a time payment arrangement for consideration. A continued failure to pay may result in the matter being referred for formal debt collection.
Unless there is a publication order decisions are confidential to the Lawyers Complaints Service. For a sample of published decisions (as to fact and identity) see the Law Society's Standards Committee decisions page.
LCRO decisions are published on the Ministry of Justice website.
Disciplinary Tribunal decisions are published on the Ministry of Justice website.
Name publication is rare at the level of the Standards Committee but can occur. Law Society Board approval is required if name 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 in LawTalk and on the Law Society website.
Only if you think it necessary. The LCRO has commented that she would prefer to hear the “voice” of the lawyer rather than that of the lawyer’s advocate.
Yes, this may be acceptable 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.
The complaint will be recorded with a finding of no further action. Over 80% of complaints result in such a finding.