What should I do if I receive a complaint letter from the Legal Services Commission (LSC) or Queensland Law Society (QLS)?
If you are a member of QLS you should consider immediately seeking legal advice from the QLS Free Legal Advice Panel. Confidential and privileged expert legal advice is available from a panel of experienced solicitors, and up to six hours of this is paid for by QLS. Lexon have also extended their cover to provide, in certain circumstances further services from the panel solicitors of up to $10,000.
You might also consult a QLS Senior Counsellor for free, confidential guidance.
Also read the LSC Fact Sheet “Information for respondents” and the LSC Fact sheet No. 8 Responding to a complaint. There is extensive information on the complaints process on the LSC website: How does someone make a complaint against a solicitor?
Do not delay, as penalties apply to failure to reply, or provide documents as requested within the time specified (Legal Profession Act 2007 ss 443(1), (2)) and if you are issued with a notice under s 443(3) failure to comply with that notice will be taken to be professional misconduct unless you have a reasonable excuse – s 443(4). So even if the original complaint is dismissed you may still face a charge of failure to reply, or delay in replying to that dismissed complaint.
If necessary, consider seeking an extension of time from the LSC.
You have a duty to cooperate reasonably with the investigation and hearing and you should be polite and courteous. The Australian Solicitors Conduct Rules 2012 ('ASCR') impose specific duties in this regard:
43. Dealing with the Regulatory Authority
43.1 - Subject only to his or her duty to the client, a solicitor must be open and frank in his or her dealings with a regulatory authority.
43.2 - A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor’s conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter.
However, you may refuse to provide information if it would tend to incriminate you or be contrary to your professional indemnity insurance policy – s 443(6) Legal Profession Act 2007 (Qld).
You should not contact the complainant about the complaint, as this may be seen as an attempt to interfere with the investigation process.
Do not keep your colleagues in the dark. In Baker v Legal Services Commissioner  QCA 145 McPherson J remarked: ‘It only remains for the future instruction of the profession to say that, in the case of a firm with only two or a few partners like Baker Johnson … a system will have to be instituted … to ensure that something as serious as a complaint having the potential to produce a charge against a member of the firm is considered by all members of the firm before a response to it is sent’ (at paragraph 44).
The Legal Services Commission’s approach to relatively minor complaints is worth noting. The LSC takes the view that rather than a disciplinary response, it may be more appropriate to simply require you to apologise to the client, to re-do the work, to waive some or all of your fees or otherwise remedy the faults in the service you have provided and/or to learn from your mistakes by fixing your office systems or undertaking some further training – whatever ‘tailor-made’ remedy or preventative measures that best fit the facts. Whilst the LSC doesn’t have the power to require you to take these or any such steps (it can only prosecute you before the Legal Practice Committee or QCAT) if you put forward proposals in these terms or show that you have taken such steps, the LSC may be prepared to dismiss the complaint on the basis that it will not be in the public interest to initiate disciplinary proceedings.