Making a complaint - Victorian Legal Services Board + Commissioner

Making a complaint

Any person may make a complaint but not all complaints are able to be dealt with by the Legal Services Commissioner. Usually you will need to be the client of the lawyer.

What can you complain about?

There are certain things we can help with, and others where we cannot. Usually people are looking to resolve a problem with their lawyers and our approach is to try and help.

You should simply tell us what you are concerned about and who was involved. The Commissioner will then decide how the complaint should be dealt withCommon issues raised in complaints include:

  • allegations of excessive legal costs
  • delay
  • communication issues
  • poor advice
  • inadequate service
  • ethical issues

For information on the way we handle complaints, see our page on Complaints handling.

How do I make a complaint?

Before you write out a complaint letter or fill in a form, you should first call our office. If a formal complaint is necessary, we can guide you in the process for making a complaint.

Disputes about legal bills

If you want to dispute your legal bill, you will need to provide us with:

  • a copy of that bill and
  • any costs agreement or disclosure document your lawyer gave you.

About our processes

The role of the Commissioner is primarily to seek to resolve the dispute between you and the lawyer. The Commissioner’s staff are impartial, meaning that we do not advocate for either lawyer or consumer in a dispute. We attempt to resolve the dispute while considering the facts in the matter (for example, whether the costs disclosure has been adhered to, whether the service was of an appropriate standard, any delays, whether the parties have behaved reasonably in the course of the matter). We expect parties to negotiate in good faith, which means being prepared to understand the views of the other party and to compromise on certain issues where appropriate.

In certain limited circumstances, the Commissioner can determine that a bill should be reduced or other remedial action should be taken by the lawyer. However, such a determination will only be made in exceptional circumstances. In the usual case, we expect the parties to negotiate in good faith and in accordance with our processes. Where no resolution is possible, we can also give the parties the right to refer the matter to VCAT for determination (where amount in dispute is under $25,000) or to the Costs Court for assessment (where the amount in dispute is greater than $25,000).

We are also able to close the matter without any determination being made. We would do this if, for example, the facts in the matter should be determined by a Court or Tribunal, or if a party refuses to participate in good faith in the dispute resolution process.

There are time and cost limits for disputing your legal bill.

Time limits: In most cases, you have 60 days from the date of the bill to dispute those costs. If you have requested an itemised bill, then you have 30 days after the date of that bill to dispute those costs.

The Commissioner can accept a costs dispute up to four months outside these timeframes, if:

  • you can prove there was a good reason for the delay (you need to include a statement giving your reasons for delay with your complaint form or letter), and
  • the practitioner has not sued you for the costs.

Cost limits: The Commissioner can deal with complaints about legal costs charged by a lawyer (including any barrister’s costs) of up to $100,000 or, where the total amount is greater, the amount in dispute is limited to under $10,000.

If the bills you wish to dispute are outside these time and cost criteria, we may be able to assist you to resolve the dispute on an informal basis, but only if the lawyer agrees to participate in the negotiations.

You may wish to make a claim under the Australian Consumer Law and Fair Trading legislation via the Victorian Civil and Administrative Tribunal (VCAT), or you can apply to the Costs Court of the Supreme Court of Victoria. Please refer to the fact sheet Legal costs – What rights does a consumer have? (250KB PDF).

Third Party Payers

If you are a tenant or a mortgagor and you are liable to pay the landlord or mortgagee’s legal costs, there are certain circumstances where we may be able to help you with a dispute over the amount of those costs. However, this will not apply if, for example, the costs are payable due to an Order of a Court, or if you are a commercial or government client (as defined in s.170(2) of the Uniform Law). Please call our intake and assessment officers to work out whether we can deal with your complaint.

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Other consumer disputes

The Commissioner can deal with other disputes about legal services provided by a lawyer to a client, for example, where work you asked the lawyer to do has not been done properly or at all, where there have been delays and failure to communicate, where necessary steps in a matter have been missed, or the lawyer has been rude or abusive.

As in costs disputes, our primary focus is on seeking a negotiated outcome to the complaint. For example the lawyer may agree to apologise, to redo work, to complete required steps at a reduced or no cost; or the lawyer’s explanation may clear up any misconception, resulting in the resolution of the consumer’s concerns.

If the matter cannot be resolved and if it seems appropriate, the Commissioner can investigate the matter and make a determination order. Orders that can be made include

  • For the work to be redone;
  • For the lawyer to undertake counselling, supervision or further training;
  • For the lawyer to apologise to the consumer;
  • For the lawyer to be cautioned; and
  • In circumstances where the client can demonstrate a direct connection between the lawyer’s conduct and the loss of a specified sum of money, a compensation order of up to $25,000.

Compensation orders

Compensation will only be ordered where, following an investigation, the Commissioner reaches the view that the loss was a result of the lawyer’s conduct and it is in the interests of justice that the order be made.

Please note: compensation is not payable for:

  • The amount you think the Court would have ordered in your favour had the lawyer dealt differently with the matter; or
  • Other losses of an essentially speculative nature.

If you think the lawyer should pay you compensation, please provide details of how much you think should be paid, and why. You will need to provide evidence of the loss and details of why you think the lawyer’s conduct led directly to that loss (for example Court Orders for you to pay a certain amount, letters stating that penalty fees are now payable due to lateness, and so on). We will then assess whether compensation is a possible outcome and let you know our view of the merits of the matter in the course of dealing with the complaint. Compensation is payable only where it is fair and reasonable, and may be of a different amount to that sought.

Limitations on other consumer disputes

The Commissioner cannot deal with a consumer dispute if:

  • you are not the client of the law practice or lawyer complained about
  • the incident took place more than three years before the complaint is made
  • legal proceedings have already been commenced in a court or tribunal over the same loss or the same complaint
  • the loss arises from fraudulent or dishonest behaviour and a claim has been made to the Fidelity Fund.

The Fidelity Fund

The Fidelity Fund is managed by the Board and was established to compensate clients who have lost money or property held in trust as a result of the dishonest or fraudulent behaviour of a lawyer, barrister’s clerk or a solicitor’s law clerk. The Board investigates and determines claims against the Fidelity Fund.

For more information on the Fidelity Fund, including claim examples, please see the Fidelity Fund page. If you are considering making a claim against the Fidelity Fund, please contact us to discuss your claim.

Further information

For more information about financial loss disputes, please see the following fact sheets:

For more information, see the Fidelity Fund page.

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Other disputes

The Commissioner can also help you to resolve other disputes which you may have with your lawyer. Contact us to see if we can help you resolve the dispute between you and your lawyer.

 

Complaints about service and behaviour

There is a three-year time limit for making complaints about a lawyer’s behaviour.

Our approach is to try and resolve the problem you have with your lawyer. If we can do this, that will finalise the matter. If, however, we decide that the concerns raised are extremely serious and may warrant us taking disciplinary action, we may investigate the issues. We will only do this where we think they may give rise to a disciplinary issue of unsatisfactory professional conduct or professional misconduct.

For more information about how we deal with complaints about a lawyer’s behaviour, see the Complaints handling page.

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Last modified March 9, 2017.