How to make a complaint against your Solicitor

Valerie Cortes

Valerie Cortes

Online Legal Information Author at Family Law Express
Valerie is a Bachelor of Business Bachelor of Laws student at the University of Technology Sydney, majoring in International Business. Upon graduating, she plans to work in areas of family law and international human rights law, as well as an interest in international business law and commercial law. She volunteers as an interpreter for clients at a refugee case services.
Valerie Cortes

olsc-complaintsHave you ever had serious concerns with the way your solicitor has dealt with your case? For instance, do you believe your solicitor has not respected your confidentiality, or do you believe that your solicitor has been overcharging you?

If so, have you ever thought of filing a formal complaint against the solicitor? Interested in finding answers to these questions? This paper will provide you with the answers.

In the 2008 Bar Association of Queensland Annual Report, John Briton the Legal Services Commissioner stated that there is an average of over 1200 formal complaints a year against a legal practitioner or about one in every six Queensland legal practitioners receiving a written complaint.

If you believe that your legal practitioner has performed unsatisfactorily under his professional duty then you have the right to file a complaint against him. Provided below are details on the avenues available to lodge a complaint against your legal practitioner and how to go about the processes of lodging a complaint. There is a respected body that deals with the complaints against legal practitioners in each state and territory, thus this has to be taken into account, however each statutory institution performs similar roles and investigates similar matters or issues in regards with unprofessional actions of a legal practitioner.

Who is a legal practitioner?
A legal practitioner can be a lawyer certified to work as a barrister or solicitor. In some states, such as Queensland, law-practicing employee also counts as a legal practitioner. The lawyers’ special responsibility is to give their best service to their client with professionalism, as well as their special duty to the court.

Where do I go to file a complaint against my legal practitioner?
Each state and territory has different legal institutions to investigate complaints filed against a legal practitioner. These institutions were created under statute and must treat each case in a fair and independent manner. All these statutory institutions undertake the same job and provide the same services to clients who want to lodge a complaint against their legal practitioner. Below is a list of the different institutions in each state and territory:

  • • New South Wales: The Office of the Legal Services Commissioner – Inquiry Line: 1800 242 958
  • • Victoria: Legal Services Commissioner – Inquiry Line: 1300 796 344
  • • Queensland: Legal Services Commissioner – Inquiry Line: 1300 655 754
  • • South Australia: Legal Practitioners Conduct Board – Inquiry Line: (08) 8212 7924
  • • Western Australia: Legal Profession Complaints Committee – Inquiry Line: (08) 9461 2299
  • • Tasmania: Legal Profession Board of Tasmania – Inquiry Line: (03) 6226 3000
  • • Australian Capital Territory: Law Society of the ACT – Inquiry Line: (02) 6247 5700
  • • Northern Territory: Law Society of the NT – Inquiry Line: (08) 8981 5104

What would be my underlying reasons to file a complaint against my legal practitioner?
If you believe that your case falls within the scope of a “consumer dispute” or “conduct complaints” then you have reasons to complain against your legal practitioner. Under the Legal Profession Act 2004 (NSW), “consumer disputes” may be in regards with delays, costs, poor communication or rudeness or a release of your documents or property (liens). A “conduct complaint” is associated with “unsatisfactory professional conduct” or a “professional misconduct”, this could be a threatening or abusive behaviour, failure to comply with an undertaking, poor advice or representation, serious delay, non-disclosure of costs, minor breach of the Solicitor’s Rules or confidentiality.
A “professional misconduct” includes gross overcharging, conflicts of interest, acting contrary to instructions, misleading or dishonest conduct in or outside court and a misappropriation of trust money, conduct outside the law practice such as conviction of a serious criminal offence, a tax offence or an offence involving dishonesty or being qualified from managing or being involved in the management of a corporation.

The statutory institutions are not able to deal with complaints against courts staff, judges or magistrates or complaints against paralegals, law clerks, and individuals practicing without a practicing certificate, or about migration agents and licensed conveyancers.

How can I file a complaint against my legal practitioner?
Every complaint is required to be firstly assessed by the respected institutions in the state or territory you are in. If mediation between you and your legal practitioner is capable of resolution then this will be the first step that the institution will recommend to be done. This is a process where an officer from your institution will hear your side of the complaint and also hear your legal practitioner’s story in order to bring about a more practical solution where possible. This will be a confidential process, but if ever during the process, a more serious problem will occur the institution will investigate this further. If your complaint is with regards to professional misconduct, disciplinary action has to be taken by the institutions and a serious “investigation” is required.

For an easier process, it is advisable that you call your respected institution’s Inquiry Lines (as provided above) to help and clarify questions you have about filing a complaint against your legal practitioner. To lodge a formal complaint the complaints must be in writing and must be signed by you or a person on your behalf. The name of the legal practitioner that you want to make a complaint against shall be written on your formal complaint. Each institution also provides a complaint form that can be downloaded from each of their websites or alternatively a letter with the details of your complaint can be sent to the institution in your state or territory. Any legal and relevant documents that you can provide to support your complaint must be photocopied. If you are acting on behalf of another person you must write the name of the person filing the complaint on the formal written document.

If upon completion of the investigation of your complaint the matter was found to be a serious matter, the institution will refer the matter to a more powerful legal service that deals with lawyer’s professionalism such as the Bar Association. In each investigation the legal practitioner being complained about will be given an opportunity to respond to such complaint.

Each state and territory has an online disciplinary registers database for the public’s reference, as required by the Legal Profession Act 2004. This is a list comprising of names of legal practitioners who have been given sanctions due to unprofessionalism. Below are the links to each state’s online disciplinary registers most recent listings.

What other bodies help with the dispute?

In New South Wales, the Law Society of NSW and the Bar Association also decides on formal complaints that clients file against their legal practitioners. If a disciplinary action has to be taken the Law Society Councils of each state review the complaints against solicitors and the Bar Associations reviewthe complaints against the barristers. They are professional bodies that decide on formal complaints that require an undertaking of disciplinary action.

What is a likely hardship that I will face during an investigation process?
A “Caesar against Caesar” notion has been attested when it comes to decision making made by the respected legal services that deals with complaints against legal practitioners. After your respected state’s legal services commission reviewed your case and requires a further investigation against the legal practitioner they will send the matters of complaint to a higher professional body. This could either be the Law Society for solicitors or the Bar Association for the barristers.

The infamous Dr. Haneef’s case is an exemplar of such notion, wherein both his solicitor and barrister have been investigated at different times due to unethical conduct. They were both alleged of leaking substantial information related to the case. The president of the bar association stated that Dr. Haneef’s barrister was a regarded member of the bar and was to be presumed with innocence as he had acted honestly and with the best intentions. The bar association’s president also went to further discuss that the Bar Association does deal with such unethical complaints impartially for the main interest of the public. This is one issue in regards with filing a complaint against a legal practitioner, as eventually it is their own respected body that deals with their own complaint. A notion of bias is usually imputed in such process, as Caesar will not fight against himself.

Is there a time limit for making a complaint?
You have three (3) yearsfrom the happening of the alleged conduct to file a complaint against your legal practitioner. However, “out of time” case can be an exception if the Legal Services determine that “it is just and fair to do so having regard to the delay and reasoning of such delay” or if the complaint “concerns professional misconduct and that it is in the interest of the public to investigate such complaint”.

Never be hesitant in filing a complaint against your legal practitioner if you truly feel that you have been given an unprofessional conduct. There are avenues ready to give you a hand and guide you through the process of being heard and actually getting a solution to a legal issue. This is a matter of obtaining justice and your case does matter.

How to Remove a Judge or/and an ICL from Proceedings

Prajesh Shrestha

Online Legal Information Author at Family Law Express
'My name is Prajesh Shrestha and I am currently in my 3rd year of the Juris Doctor at the University of Sydney.Upon graduating, I am interested in becoming a legal practitioner. My areas of interest includes family law and conveyancing. I also have a strong and abiding interest in social justice and as such I am undertaking a legal internship at the Public Interest Advocacy Centre performing legal research, client interviews and drafting.

gavel-family-courtThe adversarial common law system in Australia, by its very definition, often delivers results that are far from what was expected, even to impartial third parties.

The counter-balance to this uncertainty is the hierarchical layers of Courts, providing avenues for appeals.

Sometimes however issues arise in family law proceedings in Australia with regard to the performance of the judicial officer or the Independent Children’s Lawyer, which cannot wait for the sometimes long-winded appeals process, and require immediate action or remedy.

This paper will consider the procedure for removing a judge and an Independent Children’s Lawyer (ICL) from proceedings.

As the procedure for removing a judge varies considerably from removing an ICL, I will deal with them on a separate basis.

Removing a judge from proceedings

In certain cases a party to litigation might conclude that a judge is not fit to preside over proceedings and should be removed. The grounds for removing a judge from proceedings, however, are narrow and restrictive. A judge can only be disqualified from a matter on the grounds of bias.

Governing Principle

The principles of natural justice require that a decision maker, ie. a judge or a magistrate, must approach a matter with an open mind that is free from pre-judgment or prejudice. In other words, the decision maker must be free from bias.

A party who suspects that a judge or a magistrate is biased may seek an application to have the decision maker removed from the proceedings.

Types of Bias

There are two types of bias, actual bias and apprehended bias. Actual bias is available only if a party can prove that the decision maker’s minds is closed and will not be swayed by the evidence in hand. On the other hand, apprehended bias (also known as apparent bias) only requires a finding that a fair minded and reasonably well informed observer might conclude that the decision-maker did not approach the issue with an open mind.

Most cases concern apparent bias, as opposed to actual bias. This is partly because apparent bias is much easier to prove as it does not require an applicant to establish the actual state of mind or attitude of decision-makers.The test for determining whether a judge should disqualify himself or herself by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”1 affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. ]

If a party reasonably suspects that the judge or magistrate’s impartiality is affected his actual or apparent bias, then the party can apply to have the judge removed on this ground.

Instances of Bias

It is not always easy to know when the judge or magistrate should be disqualified on the grounds of bias. Case law offers some helpful guidance to parties:

  1. The fact that the judge, or a close family member, holds shares in a litigant party is normally not a ground for disqualification, unless the value or income stream of the shares could be affected by the outcome of the litigation2:
  2. The fact that the judge has a direct pecuniary interest in the proceedings is a ground for disqualification3:
  3. The fact that the trial judge has expressed views in previous decisions, or in extra-judicial publications in relation to the kind of litigation before the court, which may have questioned an existing line of authority is not normally a reason for disqualification unless those views suggest that the judge could not hear the case with an “open mind”.4 1 All ER 65. ]
  4. The fact that the judge is related to a party, or to one of the party’s legal representatives- including an intimate relationship, at least where that legal representative is actually involved in the litigation, will normally be a ground for disqualification 5:
  5. Where the judge was married to a party, or to one of the party’s legal representative, and that relationship has subsequently broken down. What is a reasonable period of disqualification following the end of the relationship will depend on the facts of the case;

How to make an application

A party can make an application for disqualification without filing a formal motion.6 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539. ]

Traditionally, the question of disqualification has been dealt with in an informal way before the judge against whom objection is, or might be, taken. A party can seek to have the judge disqualified by drawing the issue to the attention of the registrar with appropriate adjustments being made to the listing of the matter7. In such cases, the issue may be resolved without the need for it to be ventilated in open court.

If a party is unable to resolve the matter informally, then the party should file an application seeking the disqualification of the judge (also known as recusal application). Generally an application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts.

It should be noted that there is no uniform procedure for raising the issue; nor a uniform method for informing the court as to the facts supporting a request for disqualification in circumstances where that might be regarded as necessary. The matter is essentially unregulated and judges have increasingly invited the parties to make submissions, taken evidence and delivered reasons.8

Waiver

It is important for a timely objection to be made by a party if it is considered that there is a serious question as to whether the judge should withdraw. By failing to make a timely objection, the litigant may be held to have waived any objection to the judge hearing and determining the matter.

As waiver may be implied, where a party is making an informal or oral application, it important for an objection to be recorded on the transcript, or noted by the judge if transcript is not taken.

Tender of Evidence

In certain circumstances evidence has been permitted of the existence of a potentially disqualifying interest held by the trial judge in the subject matter of the proceedings. In Clenae Pty Ltd v ANZ9 VSCA 35. ], for example, affidavit material was tendered on the appeal to show the existence of the trial judge’s shareholding in the respondent company.

Who hears the Application?

It is well established that the judge assigned to hear the matter will decide whether he or she ought to disqualify him or herself on the grounds of bias.

Appeal

A judge or magistrate will not automatically step aside wherever an objection is made. In some cases, the judge or magistrate may refuse an application seeking disqualification. Where a matter is being brought in the Federal Circuit Court or the Magistrate Court of Western Australia, a party can appeal to the Family Law Court where an application for disqualification has been rejected by the primary judge or magistrate.10

However, when a judge of the Family Court, as opposed to a lower court, refuses to disqualify him or herself from the proceedings, then the question of whether that decision is appeal-able is a vexed issue. A refusal by a judge to disqualify him or herself can be relied upon as a ground of appeal in relation to the substantive judgment. Traditionally it has been held that no appeal lies from the rejection of a refusal application; Wentworth v Rogers.

However, the decision in Barakat v Goritsas (No 2) [2012] NSWCA 36 suggests that it will frequently be appropriate to grant leave to appeal where a recusal application has been rejected ‘assuming that the challenge is not patently untenable’.

In any case, a party may seek a writ of prohibition from the High Court against the judge in the Family Court.

Prohibition

Where the judge or a magistrate has refused to disqualify him or herself, a writ of prohibition can be sought against judges of federal courts and inferior courts including the Family Court of Australia.

Thus, in The Queen v Watson; Ex parte Armstrong11the High Court held that prohibition could lie against a judge of the Family Court of Australia prohibiting the judge from hearing an application for dissolution of marriage and ancillary relief where, in all of the circumstances, the parties or the public might reasonably have suspected that the judge was not impartial. The Court held that prohibition should issue on the ground that the parties or the public might reasonably suspect that the judge was not unprejudiced or impartial.

Removing an Independent Children’s Lawyer (ICL)

The procedure for removing an Independent Children’s Lawyer is different and simpler. Under regulation 8.02(1) of the Family Law Rules 2004, a party may apply for the appointment and removal of an independent children’s lawyer by filing an Application in a Case. This application can also be made orally.

The Court will only do this in very serious circumstances, which would include where there is evidence that the lawyer:

  1. -is acting against the child’s best interests
  2. -is not doing the job properly
  3. -is not making independent decisions, or
  4. -has a conflict of interest.12
  1. Johnson v Johnson (2000) 201 CLR 488 at [11
  2. Dovade Pty Ltd v Westpac Banking Corporation and see Ebner v Official Trustee.
  3. Dimes v Proprietors of Grand Junction Canal Pty (1852) 10 ER 301 and Dovade Pty Ltd v Westpac Banking Corporation. 
  4. Timmins v Gormley [2000
  5. Smits v Roach (2006) 227 CLR 423.
  6. Barton v Walker [1979
  7. Melissa Perry, ‘Disqualification of Judges: Practice and Procedure’(2000) Discussion Paper, Australasian Institute of Judicial Administration Incorporated, p 9.
  8. Ibid ix.
  9. [1999
  10. s 94AAA of the Family Law Act 1975.
  11. R v Watson; Ex parte Armstrong (1976) 136 CLR 248. 
  12. Legal Aid Western Australia, ‘Independent Children’s Lawyer (ICL) in the Family Court.