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Types of complaints

Information about the types of complaints that can be made against a legal practitioner.

The two types of complaints that can be made against lawyers are:

A single complaint may contain both a disciplinary matter and a consumer matter. If this happens the Legal Services Commissioner may resolve the consumer complaint first and then look into the disciplinary matter.

Disciplinary complaints

Disciplinary complaints include:

  • breach of conduct by lawyers
  • breach of conduct by barristers, or
  • dishonesty, fraud or default by legal practitioner.

Breach of conduct by solicitors

Any complaint against a lawyer should first be lodged with the Legal Services Commissioner.

If further investigation is required, the commissioner may refer the investigation to the Law Institute of Victoria or the Victorian Bar.

In serious cases the Commissioner will refer the matter to the disciplinary tribunal at the Victorian Civil and Administrative Tribunal.

Breach of conduct by barristers

Any complaint against a barrister should initially be lodged with the Legal Services Commissioner, who may then notify the Victorian Bar.

The Bar must investigate the complaint and report back to the Commissioner.

A complaint can be made if:

  • a lawyer has used a client's money in a fraudulent or dishonest manner, or in a way that is contrary to the client’s instructions
  • the client believes that they have suffered a financial loss as the result of unethical or unprofessional conduct.

Complaints are lodged with the Legal Services Commissioner.

Cost or negligence complaints

These civil complaints are called consumer complaints under the Legal Profession Uniform Law. They include:

  • overcharging
  • financial loss, and
  • negligence.

Overcharging

A dispute about legal costs must not exceed $100,000 for any one matter. A complaint about costs must be lodged within 60 days from when the legal costs became payable, or 30 days after an itemised bill was sent.

This time limit may be extended if the complaint is made within 4 months of the time limit expiring.

See cl. 272, 291—Legal Profession Uniform Law (Victoria)(opens in a new window).

Financial loss

Where a client has suffered financial loss as the result of unethical or unprofessional conduct by a lawyer or barrister, a complaint form should be lodged with the Legal Services Commissioner.

The commissioner will initially attempt to resolve the dispute. If this is not possible, or if either party chooses, the matter may be referred to the Victorian Civil and Administrative Tribunal (VCAT) for a decision. VCAT may award compensation of up to $25,000.

See cl. 308(2)—Legal Profession Uniform Law (Victoria)(opens in a new window).

This kind of arrangement, sometimes called a conditional cost agreement, involves a lawyer promising not to charge anything unless they win the court case. These agreements are not uncommon for personal injury or Will matters. An uplift fee arrangement allows the lawyer to charge more than they would otherwise have been allowed to charge because they have taken a risk. The client may also have to pay interest on the fees if they are billed long before payment is made. Lawyers are not permitted to make these agreements for family or criminal law matters.

Lawyers are prohibited from making contingency agreements, where a lawyer enters into a costs agreement that is based on the amount of settlement awarded or the value of any property recovered.

See cl. 181, 182, 183—Legal Profession Uniform Law (Victoria)(opens in a new window) and The Age—No win, no fee – no way?(opens in a new window)

Negligence

There are many areas where the way that a lawyer conducts a matter may amount to negligence. Some conduct complaints are about:

  • delay
  • poor communication
  • incompetence
  • inadequate service, and
  • conflict of interest.

These matters are considered to be civil disputes. Clients may lodge a complaint with the Legal Services Commissioner, for investigation or resolution of a complaint, where compensation claimed is for an amount less than $25,000.

Note: A compensation order for more than this amount can be made if both parties agree.

If compensation is likely to exceed this amount and the parties do not agree to allow the tribunal to raise the $25,000 limit, the matter must be filed with the appropriate court.

See cl. 308(2)—Legal Profession Uniform Law (Victoria)(opens in a new window).

More information

Legislation

Legal Profession Uniform Law (Vic)

  • Part 4.3—Legal costs
    • cl. 181—conditional costs agreements
    • cl. 182—conditional costs agreements involving uplift fees
    • cl. 183—contingency fees are prohibited.
  • Part 5.2—complaints
    • cl. 265—defines complaint
    • cl. 266—who may make a complaint
    • cl. 267—how a complaint is made
    • cl. 268—complaints may be consumer complaints or disciplinary complaints
    • cl. 269—consumer complains include costs complaints (defines cost complaints)
    • cl. 270—disciplinary matters (defined)
    • cl. 271—mixed complaints
    • cl. 272—time limits for resolving complaints
    • cl. 273—withdrawing complaints
    • cl. 274—where complaint is to be dealt with
    • cl. 276—preliminary assessment of a complaint
    • cl. 277—closure of a complaint (or part of it) after preliminary assessment
    • cl. 278—immediate suspension of practising or registration certificate
    • cl. 291—role of the commissioner in costs disputes
  • Part 5.5—compensation orders
    • cl. 308—nature of compensation orders

See Legal Profession Uniform Law (Victoria)(opens in a new window).

References

Legal Services Commissioner

Information on how to make your complaint is available on the Legal Services Commissioner website.

See Legal Services Board and Commissioner—What to do when a problem arises(opens in a new window).

Victorian Bar

The Victorian Bar provides information about the Victorian Bar's Constitution, Rules and Regulations.

See The Victorian Bar—Constitution, Rules and Regulations(opens in a new window).

Victorian Civil and Administrative Tribunal (VCAT)

The VCAT website has information on applications to hear disciplinary charges, including how to apply for a re-hearing or appeal.

See VCAT—Legal Practice.

Victoria Legal Aid

VLA also provides information about how to make a complaint about a lawyer, including VLA’s complaints process.

See Complaints about lawyers(opens in a new window).

The Age newspaper

In this 11 May 2015 article David Jay looks at the pitfalls and prohibitions that related to contingency fees.

See The Age—No win, no fee – no way?(opens in a new window)

Updated