From the Conduct Commissioner Obligations to respond to complaints

Obligations to respond to complaints

GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER

Ihave already said some of what I’m going to say in this article in previous articles in the June, 2015 and May, 2018 editions of the Bulletin. But it’s worth repeating, as some practitioners we deal with clearly didn’t read those earlier articles!

I am very much aware that having to deal with a complaint isn’t any fun. It will be time consuming, it will get in the way of other paying work you could otherwise be doing, and the client complaining may not have paid your fees. And you may be upset or annoyed that your client, for whom you consider you obtained a good outcome, has complained. Alternatively, you may be aware that you didn’t handle that matter as best you could, and be a bit afraid of what the outcome of our investigation might be.

Regrettably though, having a complaint made about you is one of the “costs of doing business” these days. If you are in legal practice for long enough, particularly in one of those areas of law in which a client’s emotions are often at or near breaking point (eg family law, estate administration), then having a complaint against you at some stage is almost inevitable.

When a complaint is published to you, your obligation is to respond to my offi ce in a timely fashion, and to do so openly and honestly. It is one of the obligations that goes with being a part of the legal profession. See in particular rule 43 of the Australian Solicitors’ Conduct Rules.

You should also remember that, at that early stage, all we have heard is the complainant’s version of events. As the practitioner involved in the matter, you should be able to respond to a complaint by referring to your fi le to tell us all about what happened – because your fi le should of course have on it all of the things that you are told constitutes good practice management, namely fi le notes of all substantive discussions with your client, written advices you have given during the course of the matter etc. You should also have signed instructions to settle where appropriate, to help respond to a fairly common complaint these days that a practitioner “bullied” the complainant to settle their matter. And, of course, you should be able to produce your initial costs disclosure including your fee estimate, your costs agreement, and your ongoing disclosure about changes to your fee estimate – all of which are required by Schedule 3 of the Legal Practitioners Act (Act) to be in writing.

So, your time is best spent by responding factually to the complaint, with as much information as you can give us as well as supporting documentation from your fi le.

Your time is very poorly spent by telling us how “disgusted” you are with the complainant (as one practitioner told us recently) and how grateful the complainant should have been for your work, or otherwise criticising the complainant. Nor is there any point suggesting that we shouldn’t have bothered sending you a complainant’s response for you to comment on – we will always do so, as that’s part of carrying out a fully transparent and procedurally fair investigation.

My offi ce will usually ask for information to be provided by a particular time. If you can’t respond by a due date, then ask for an extension – don’t just assume it, time deadlines are important. We will not be unreasonable in providing an extension if you request one and you have a good reason for it. However, it isn’t a good reason, particularly the second or third time you use it, simply to say that you are too busy to respond. I accept that everyone is busy, but responding to a complaint is simply something that you must give some priority to.

If you are asked to provide one of your fi les, then you should provide the whole fi le including any part of it that is just kept electronically.

I described in my May, 2018 article the circumstances in which I will issue a formal notice under clause 4 of Schedule 4 of the Act. I won’t repeat here everything I said in relation to such a notice. Suffi ce it to say that, if I issue such a notice to you, you should give it your urgent attention. Not responding to such a notice will usually result in more drastic consequences than could have arisen even if I were to fi nd misconduct as a result of the underlying complaint/investigation.

At the other end of the spectrum, if you have a misconduct fi nding made against you, take particular notice as to the requirements of any order I make. For example, if I make an order requiring you to undertake some professional development, that order will say what topic you have to learn about, when you have to do the session(s) by, and when you need to provide evidence to my offi ce that you have complied with the order. The dates are important, and will usually coincide with the MCPD year – for example, “you must do X units in costs disclosure no later than 31 March, and you must provide evidence of having done so by 30 April”. I suggest that the evidence you should provide will include proof of registration for a session, as well as proof that you attended it. It is not suffi cient for you to simply say that you have done it. It’s not that we don’t believe you, it’s just that that is not evidence. And if (as is usually the case) the order is that you must do that PD in addition to your usual 10 compulsory MCPD units, then you will need to provide evidence that you have done those 10 units too so that we can see that the PD you say you’ve done to satisfy my order is actually in addition to it.

Until you have done everything the order requires, then you haven’t complied with it, which of itself can amount to professional misconduct under section 77J (10) of the Act. Not a good outcome!! B