Who can make a complaint about a lawyer?
Anyone can make a complaint about a lawyer’s behaviour or conduct. However, only the person who is responsible for paying the lawyer’s The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs. (usually the client) can complain about the costs charged by a lawyer.
Who can you complain to?
A complaint about a lawyer can be made to the VLSB+C (see ‘Contacts’ at the end of this chapter). You are encouraged to contact the VLSB+C’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.
What can you complain about?
You can make a complaint about a lawyer and, in certain circumstances, a law practice. You should simply tell the VLSB+C’s staff what you are concerned about and who was involved. The VLSB+C A document that sets out what a person wants to happen to their money and other property after they die. then decide how your complaint should be dealt with. Common complaints include allegations of:
- poor communication;
- poor advice;
- inadequate Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence.; and
- unethical conduct.
What complaints can’t the VLSB+C handle?
The VLSB+C cannot deal with complaints where:
- the matter is before the courts, including where a lawyer has sued you;
- you are disputing legal costs of more than $116 635 (see ‘Complaining about your lawyer’s bill’, below);
- you are complaining about a legal bill more than four months after the time limits noted below (see ‘Time limits’, below);
- you are complaining about something 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 Under the Australian Consumer Law, a person who buys goods or services for less than $40 000 or for personal or home use. Affairs Victoria – see ‘Contacts’ at the end of this chapter); or
- your complaint is about a judge or magistrate (these complaints should be made to the Judicial Commission of Victoria (www.judicialcommission.vic.gov.au), which receives complaints about judicial officers and VCAT members).
Complaining about your lawyer’s bill
If you make a complaint about your lawyer’s bill, the VLSB+C will try to resolve the dispute between you and your lawyer.
The VLSB+C’s staff are impartial – they will not take your side or the lawyer’s side. They will attempt to resolve your dispute by considering the particular facts of your matter. These include whether the lawyer has appropriately disclosed their costs to you, whether the services provided by the lawyer were of an appropriate standard, whether the costs charged were fair and reasonable, 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 VLSB+C can determine that a bill should be reduced or that other remedial action should be taken by the lawyer. Where a resolution is not possible, the VLSB+C may give you the right to take the matter to VCAT for A finalisation, especially a decision made by a court or tribunal to finalise (determine) a case. (where the amount in dispute is no more than $29 160) or to the Costs An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. for assessment (there is no monetary limit on the Costs Court’s The authority of a court or tribunal to hear matters brought before it, based on some factor such as area or law, amount of money claimed, or geographic area.).
The VLSB+C may close a complaint investigation without making a determination if, for example, the VLSB+C decides that the facts in the matter should be determined by a court or A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding.. The VLSB+C can also close the complaint if you fail to participate in good faith in the dispute resolution process.
Time and cost limits
Alternatively, you may make a claim under the Australian Consumer Law and Fair Trading A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 To take legal action in a civil case. 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 VLSB+C 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 VLSB+C 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.
As at 1 July 2020, the VLSB+C can deal with complaints about legal bills where the total costs you have incurred are $116 635 or less. If your costs are higher than this amount, you cannot make a complaint about all the costs you have incurred. Instead, you can only complain about a portion of those costs, up to a total value of $11 665.
In any complaint brought to the VLSB+C, if you are complaining about an amount that is greater than $11 665, the VLSB+C can assist you negotiate with your lawyer. However, if an agreement can’t be reached, you can take the matter to the Costs Court of the Supreme Court, or to VCAT.
Disputes about legal services (not legal costs)
The VLSB+C can handle other disputes about legal services provided by a lawyer. For example, where work has not been done properly or at all; where there have been delays or 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 VLSB+C’s primary focus is on seeking negotiated outcomes to complaints. For example, the lawyer may agree to apologise, to re-do 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 An approach to dispute resolution where both parties discuss the matter in dispute between them, with the aim of reaching a settlement through a consensus, compromise or agreement. See ADR (alternative dispute resolution); arbitration; conciliation; mediation., and it is appropriate in the circumstances, the VLSB+C can investigate your complaint and make a determination.
Such determinations may include:
- that the lawyer re-do the work;
- that the lawyer To promise to do or not do something, such as returning to court on a certain day, or to hand a document over to another party in a legal proceeding. An undertaking is enforceable by attachment or like an injunction. training, education, counselling or be supervised;
- that the lawyer apologise to you;
- cautioning the lawyer; and
- in circumstances where you can demonstrate a direct connection between the lawyer’s conduct and your loss of a specific sum of money – a An order requiring that someone found guilty of an offence pay for damage to property caused by the offence. The payment is made to the affected person or business. of up to $29 160.
Compensation orders (financial loss)
Compensation will only be ordered following an investigation if the VLSB+C 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; and
- other losses of an essentially speculative nature.
If you think the lawyer should pay you compensation, you need to provide the VLSB+C with details of how much you believe you should be paid and why. That is, you need to provide Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. 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
The Fidelity Fund is managed by the VLSB+C. The fund was established to compensate clients for the loss of money or property that was held in A type of property ownership or arrangement where one party, known as the trustee, holds property or money for the benefit of another party, referred to as the beneficiary. by a lawyer, if the dishonest or fraudulent behaviour of a lawyer, an employee, or an associate of a law practice, or a barrister’s clerk caused the loss. The VLSB+C investigates and determines claims made against the Fidelity Fund.
For more information about the Fidelity Fund, contact the VLSB+C and ask to speak to a Fidelity Fund Officer.