You can make a complaint about your lawyer, a law firm or a law practice to the Legal Services Commission, either verbally or in writing. You can complain about the quality of service provided or ethical issues but you cannot complain about costs.
Who can make a complaint?
Anyone can make a complaint about a lawyer’s behaviour or conduct. However, only the person who is responsible for paying the lawyer’s costs (usually the client) can complain about the costs charged by a lawyer.
A complaint about a lawyer can be made to the Commissioner (see “Contacts”). You are encouraged to contact the Commissioner’s office before making a formal complaint. The staff can provide information about how complaints are handled, and what you can make a complaint about. In some circumstances, the staff may be able to help you to resolve your concerns without you needing to make a formal complaint.
You can make a complaint about a lawyer and, in certain circumstances, a law practice. You should simply tell the Commissioner’s staff what you are concerned about and who was involved. The Commissioner will then decide how your complaint should be dealt with. Common complaints include allegations of:
• excessive legal costs;
• poor communication;
• poor advice;
• inadequate service; and
• unethical conduct.
The Commissioner cannot deal with complaints where:
• the matter is before the courts, including where a lawyer has sued you;
• your complaint is about non-legal work completed by a lawyer (e.g. financial planning, investment services and share trading);
• you are disputing legal costs of more than $100,000 (see “Complaining about your legal bill”);
• you are complaining about a legal bill more than four months after the time limits noted below (see “Time limits”);
• you are complaining about something (other than a legal bill) that took place more than three years ago (unless there are special circumstances);
• your complaint is about a licensed conveyancer (these complaints should be made to Consumer Affairs Victoria – see “Contacts”); or
• your complaint is about a judge or magistrate (these complaints should be made directly to the relevant court) (note that since 1 July 2017, there has been a new Judicial Commission of Victoria that receives complaints about judicial officers and VCAT members).
In consumer matters, the role of the Commissioner is to seek to resolve the dispute between you and the lawyer.
The Commissioner’s staff are impartial – they do not advocate for you or the lawyer. They will attempt to resolve your dispute by considering the particular facts of your matter. The facts they will consider include: whether the lawyer has appropriately disclosed their costs to you, whether the services provided by the lawyer were of an appropriate standard, and whether you and the lawyer have behaved reasonably throughout the course of your matter. You and the lawyer will be expected to participate in the complaint-handling process in good faith – understanding each other’s views and compromising on certain issues where appropriate.
In certain limited circumstances, the Commissioner can determine that a bill should be reduced or that other remedial action should be taken by the lawyer. However, such a determination will only be made in exceptional circumstances. Generally, you and the lawyer will be expected to negotiate in good faith and in accordance with the Commissioner’s complaint-handling processes. Where a resolution is not possible, the Commissioner may give you the right to take the matter to VCAT for determination (where the amount in dispute is no more than $25,000) or to the Costs Court for assessment (there is no monetary limit on the Costs Court’s jurisdiction).
The Commissioner may close a complaint investigation without making a determination if, for example, the Commissioner decides that the facts in the matter should be determined by a court or tribunal, or if you fail to participate in good faith in the dispute resolution process.
There are limits for disputing your legal bill: time limits within which you can dispute costs, and costs limits, which restrict the role of the Commissioner in becoming involved in a dispute (see below). If you wish to dispute a bill outside of the time and cost limits, the Commissioner may still be able to informally assist you to resolve the dispute, but only if the lawyer agrees to participate in the process.
Alternatively, you may make a claim under the Australian Consumer Law and Fair Trading Act 2012 (Vic) to VCAT, or you can apply to the Costs Court of the Supreme Court of Victoria. Taking a costs dispute to the Supreme Court is the most expensive option. This expense would normally only be justified for disputes over large legal bills.
In most cases, you have 60 days from the date the legal costs are payable to dispute those costs. However, your lawyer can sue you for payment of the costs 30 days after the bill was received. If your lawyer does sue you, even within the 60-day period, the Commissioner cannot deal with the dispute. If you have requested an itemised bill, then you have 30 days after the itemised bill was given to you to dispute those costs.
The Commissioner can accept a costs dispute up to four months outside of these time limits if:
• you can demonstrate that there was a good reason for the delay; and
• the lawyer has not sued you for the costs.
The Commissioner can deal with complaints about legal bills of less than $100,000 (and bills of more than $100,000 if the total amount in dispute is less than $10,000). If your complaint about legal bills is greater than these amounts, you can take the matter to either the Costs Court of the Supreme Court, or to VCAT (only if the matter is in the jurisdiction of the Australian Consumer Law and Fair Trading Act 2012 (Vic)).
The Commissioner can handle other disputes about legal services provided by a lawyer, for example, where work you asked the lawyer to do has not been done properly or at all; where there have been delays and a lack of communication; where necessary steps have not been taken; or where the lawyer has been rude or abusive.
As in costs disputes, the Commissioner’s primary focus is on seeking negotiated outcomes to complaints. For example, the lawyer may agree to apologise, to redo work, to take necessary steps at a reduced or at no cost; or the lawyer’s explanation may clear up any miscommunication.
If your complaint cannot be resolved by negotiation, and the Commissioner decides that it is appropriate in the circumstances, the Commissioner can investigate your complaint and make a determination order. Such orders include:
• that the lawyer redo the work;
• that the lawyer undertake training, education, counselling or be supervised;
• that the lawyer apologise to you;
• cautioning the lawyer;
• in circumstances where you can demonstrate a direct connection between the lawyer’s conduct and your loss of a specific sum of money – a compensation order of up to $25,000.
Compensation will only be ordered if, following an investigation, the Commissioner is satisfied that your loss was a result of the lawyer’s conduct and it is in the interests of justice that the order be made.
Compensation is not payable for things like:
• the amount you think the court would have ordered in your favour if the lawyer had handled your matter differently;
• other losses of an essentially speculative nature.
If you think the lawyer should pay you compensation, you need to provide the Commissioner’s office with details of how much you believe you should be paid and why. That is, you need to provide evidence of your loss and details of why the lawyer’s conduct led directly to your loss. Your request for compensation will be assessed as part of the complaint-handling process. Compensation is payable only where it is fair and reasonable, and it may not be as much as you had requested.
The Fidelity Fund is managed by the Board and was established to compensate clients who have lost money or property (that was held in trust) due to the dishonest or fraudulent behaviour of a lawyer, an employee of a law practice, a barrister’s clerk or a solicitor’s law clerk. The Board investigates and determines claims made against the Fidelity Fund. For more information about the Fidelity Fund, contact the Board and ask to speak to a Fidelity Fund Officer (see “Contacts”).