How we handle complaints
Before you make a complaint, we strongly suggest that you contact our Intake and Assessment officers to discuss the issues you are concerned about. We may not be able to help with your problem, or we may suggest better options for addressing your particular concerns. Sometimes we may be able to resolve the complaint with a few simple calls, which will save you the trouble of putting your concerns in writing.
If we think we can help you, our intake and assessment officers will give you some guidance on what information and documents we need, and will help you to understand what issues we can and cannot deal with.
When we receive a written complaint, we assess it to determine what issues we can deal with and how they will be handled. We may ask you for more information to help us form that assessment. We can close all, or any part of a complaint which we cannot deal with, and will write to you to let you know why.
Our Customer Charter
What can you expect from the Commissioner if you make a complaint?
- Wherever appropriate we will do what we can to try and help resolve your concerns.
- If we are unable to deal with your complaint we will explain why and give you some information about other options that may be available.
- We will give you details of our processes.
- We will treat parties to complaints with respect and courtesy.
- If we decide that it is necessary then we may formally investigate specific concerns.
- We will do all we can to deal with complaints in a timely and impartial way.
What are your responsibilities if you make a complaint?
- To do your best to clearly identify the concerns about which you complain.
- To co-operate with any requests for information or documents.
- Ask for more time if you need it – it is too late after the deadline has passed.
- To treat our staff with respect and courtesy.
Complaints about consumer matters, including costs disputes
Consumer matters include disputes about costs, poor service, poor communication, delay, poor advice and information by a lawyer in providing legal services.
In consumer matters, the law requires at least one of the parties to have made a reasonable attempt to resolve the matter before our office can become involved. If you contact our office before you make a complaint, we will help you work out how best to do this.
If the matter cannot be resolved without our involvement, we will try and help you resolve your dispute. This is usually done through a dispute resolution process.
The dispute resolution process involves us discussing your concerns with you and the lawyer, evaluating the information and views provided, and assisting you both to reach a negotiated outcome. We can try a number of options to help resolve the dispute. These can include:
- Communicating offers of settlement. In most cases we can help to resolve costs disputes between you and your lawyer by discussing options for settlement over the telephone or in writing.
- Referring the dispute for formal mediation. Where it appears that formal mediation is likely to help you and your lawyer to reach an agreement, the Commissioner will appoint an independent external person to help you resolve the dispute. This is done at no cost to you or your lawyer.
- Arranging for a non-binding assessment of legal costs. We can arrange for a costing consultant to give their opinion on what legal costs would be fair and reasonable for the work done by your lawyer. This second opinion is not a binding decision; however it does provide guidance from an independent person.
How long does dispute resolution take?
While there are no set time limits on dispute resolution, we will usually spend up to three months trying to resolve a dispute. Where a costs dispute is made alongside substantial allegations about the lawyer’s professional conduct, the time for finalising the complaint may be longer than this.
What happens if the attempts to resolve the dispute don’t work?
In certain limited circumstances, the Commissioner can determine that a bill should be reduced or other remedial action should be taken by the lawyer. 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 advise the parties of their right to take their matter to either VCAT for determination (where amount in dispute is under $25,000) or to the Costs Court for assessment.
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 or in a mediation.
Complaints about professional conduct or service related issues
The Commissioner will decide if and how a complaint should be dealt with, while considering the law about professional discipline. This means that a formal investigation will not be undertaken simply because a person requests that this be done.
You may be required to provide further information or assistance as part of any investigation. There is no guarantee that your complaint will lead to disciplinary action being taken against the lawyer. However, the Commissioner may make comments on the matters raised by your complaint to guide the lawyer and the legal profession generally to avoid problems in the future.
How we deal with service issues
Problems such as minor delays, mistakes in draft documents, minor negligence or phone manners are generally considered to be service quality issues. These problems do not necessarily relate to the rules of conduct which a lawyer must abide by.
Complaints about this type of issue will usually be dealt with through an informal mediation process. This is generally the most efficient and least stressful form of resolution, often resulting in a rapid resolution of the problem.
How we deal with unsatisfactory professional conduct
Where a lawyer is alleged to have failed to meet professional standards, such as turning up late for court, sending documents to the wrong address, being rude or aggressive or failing to do work that is expected, this is generally considered to be unsatisfactory professional conduct. The Commissioner will usually investigate these matters.
If the allegations are proven, lawyers may be cautioned, reprimanded, or asked to pay compensation to the client.
If a lawyer has demonstrated a substantial or consistent failure to reach or maintain a reasonable standard of competence, the Commissioner may seek to prosecute them in VCAT, providing the Commissioner believes it is in the interest of protecting the public to do so.
How we deal with professional misconduct
Where the lawyer’s alleged behaviour involves activity such as fraud, dishonesty, theft, breach of trust, or a conflict of interest, the Commissioner will consider this to be professional misconduct. In these circumstances we will undertake a detailed investigation.
If the evidence suggests that the lawyer has demonstrated such behaviour, the Commissioner will seek to prosecute the lawyer in VCAT. Prosecution in VCAT may result in substantial fines and/or restrictions placed on the lawyer’s ability to practise law.
Referral of complaints
For certain matters involving barristers we may refer the investigation of a complaint to the Victorian Bar. In this circumstance the Bar will correspond with you and then report back to us. The Commissioner will then consider the findings of the investigation before deciding what action, if any, to take against the barrister.