New Zealand Law Society - Understanding the complaints process

Understanding the complaints process

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.

What do I do when I receive a complaint?

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:

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

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.

Who can make a complaint?

Anyone may make a complaint to the Lawyers Complaints Service. A complaint can be made against:

  • A lawyer or former lawyer;
  • 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. S132 (1) of the LCA says “any person” may complain to the complaints service.

What complaints does the Lawyers Complaints Service investigate?

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.

What is the Early Resolution Service?

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.

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

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.

Do I have to respond?

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.

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.
  • 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 a 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 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.

Will my response be sent to the complainant?

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.

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

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.

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 further action;
  • To refer the parties to mediation; or
  • To inquire into the complaint.

Who else will know about the complaint?

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.

Do I have to tell my supervisor/PI Insurer?

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.

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 still make a complaint even though I signed a confidentiality agreement with a lawyer?

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.

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. S153 provides for hearings on the papers unless the Standards Committee otherwise directs.

What powers does a Standards Committee have?

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 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.

What is an “own motion” investigation?

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

Do I have a right of appeal?

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.

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 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 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.

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

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.

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?

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.

Should I instruct a lawyer to represent me?

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.

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

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.

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.