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The Uniform Law empowers the Office of the NSW Legal Services Commissioner (OLSC) to assess complaints about the conduct of solicitors and barristers as either "consumer matters" or "disciplinary matters."
These are complaints that allege conduct that, if established, would amount to unsatisfactory professional conduct and professional misconduct.
Unsatisfactory professional conduct is defined under section 296 of the Uniform Law 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 lawyer".
Conduct that may be capable of being unsatisfactory professional conduct includes:
Professional misconduct is defined under section 297 of the Uniform Law as either "unsatisfactory professional conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard or competence and diligence or conduct occurring in connection with the practice of law or otherwise that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice".
Conduct that may be capable of being professional misconduct includes:
Professional misconduct can also include conduct outside the practice of law for example being convicted of a serious criminal offence, a tax offence or an offence involving dishonesty or being disqualified from managing or being involved in the management of a corporation under the Corporations Act.
A consumer matter is a complaint about a lawyer or law practice that relates to the provision of legal services. They are complaints that do not involve issues of “unsatisfactory professional conduct” or “professional misconduct.” In a complaint that is a consumer matter, the OLSC can assist the parties to come to a resolution regarding the issues contained in the complaint.
A consumer matter may be about:
Complaints about legal costs are known as costs disputes.
A costs dispute is a consumer matter involving a dispute about legal costs payable on a lawyer-client basis where the dispute is between a lawyer or law practice and a person who is charged with those legal costs or is liable to pay those legal costs (other than under a court or tribunal order for costs), whether as a client of the lawyer or law practice or as a third party payer.
Our role in dealing with a costs dispute is to try and help you and your lawyer or the law practice resolve the dispute. Generally, we can only deal with a costs dispute if:
A complaint about costs must also be made within 60 days of the date that the costs become payable or, if you requested and received an itemised bill, within 30 days after the request was complied with.
In some circumstances, we can deal with a costs dispute outside these time frames if you have lodged your complaint within four months after the 60 or 30 day time limit and you have provided a sufficient reason for the delay in making your complaint. The time limit cannot be extended if the lawyer has issued proceedings to sue you for the unpaid costs. Such proceedings may also prevent us from further dealing with your complaint.
If the costs dispute is unable to be resolved, the NSW Legal Services Commissioner will only be able to make a binding determination about the costs in circumstances where the amount in dispute is less than $23,865.
Consumer complaints do not involve an issue of unsatisfactory professional conduct or professional misconduct.
Disciplinary complaints raise issues of unsatisfactory professional conduct or professional misconduct.
A complaint may involve a consumer matter and an issue of unsatisfactory professional conduct or professional misconduct (disciplinary matter).
The Tribunal and superior courts have determined that not all negligent acts of a lawyer amount to unsatisfactory professional conduct or professional misconduct warranting disciplinary action. For example:
The dividing line between acts that may be negligent but not unsatisfactory professional conduct or professional misconduct is not clear. In the experience of the OLSC, very few complaints of negligence amount to unsatisfactory professional conduct or professional misconduct.
Our fact sheet on Negligence (PDF, 86.8 KB) provides more information
01 Jul 2024
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