Legal Practitioners Complaints Committee

Information About the Committee and its Procedures

Chair:	Mr C L Zelestis, QC
Deputy Chair:	Mr K J Martin, QC
Law Complaints Officer:	Ms D Howell
Address:	2nd Floor "Colonial Building" 55 St George's Terrace PERTH WA 6000 Phone: (08) 9461 2299 Fax: (08) 9461 2265 Email: lpcc@bigpond.com.au
Postal Address:	Post Office Box Z5293 St George's Terrace PERTH WA 6831

What is the Legal Practitioners Complaints Committee?

The Legal Practitioners Complaints Committee is a body created by Parliament to supervise how lawyers conduct themselves and the practice of law in Western Australia. The Committee's main role is to ensure ethical conduct and professional behaviour in the legal profession.

For conduct since 1 January 2004, the Committee has power to investigate cases to see whether a lawyer may be guilty of unsatisfactory conduct. Unsatisfactory conduct includes:

behaving unprofessionally
doing something illegal
neglecting a client's case
unduly delaying in acting for a client, or
falling short of the standard of competence and diligence that a member of the public is entitled to expect of their lawyer (for conduct after 1.1.04).

These matters are discussed in Sections 3 and 164 of the Legal Practice Act 2003 ("the Act"). It is Section 164 that gives the Committee power to investigate.

Generally speaking, in respect of conduct prior to 2004 Section 25 of the Legal Practitioners Act 1893 applies and under that Act the Committee retains jurisdiction to investigate cases to see whether a lawyer may be guilty of unprofessional conduct, illegal conduct, neglect or undue delay in acting for a client.

The courts have decided that the term "unprofessional conduct" means conduct that would be seen as disgraceful or dishonourable by reputable and competent lawyers, or conduct that substantially falls short of the professional standards approved of by reputable and competent lawyers. Unsatisfactory conduct is not the same as negligence by lawyers. The Committee cannot resolve allegations of bare negligence (see below) which need to be pursued before a court.

Who Is the Legal Practitioners Complaints Committee?

The Committee consists of 10 lawyers appointed from members of the Legal Practice Board. There are also four community representatives on the Committee. None of the community representatives can be lawyers.

The Legal Practice Board appoints a person known as the Law Complaints Officer to assist the Committee and perform some of its functions, and employs legal officers and other staff to assist the Law Complaints Officer and the Committee.

If You Need to Complain about a Lawyer's Conduct

Any individual who has been adversely affected by the conduct of a lawyer may make a written complaint to the Committee.

The best way to complain is to complete a standard complaint form available from this office and then return it. Our contact details are on the front of this pamphlet. If you do not feel you are able to express yourself well enough in writing to make the complaint, you may contact the office, and you will be assisted.

If you have any questions about how to lodge a complaint you can contact the office on any weekday.

What Happens After a Complaint is Lodged

Your complaint will receive a fair and thorough investigation by the Committee. Decisions will be made according to law on the evidence provided. We do not charge a fee.

In most cases, a copy of the complaint is sent to the lawyer, who is asked to provide a written response to the Committee. When the Committee receives the lawyer's response, it prefers to send a copy of the answer to the person who has complained for further comment. There may be a reason not to do so, for example, where the response relates to legal proceedings between the parties to the complaint.

What the Committee does next depends on what is contained in the complaint and the lawyers answer. Sometimes the Committee needs to obtain further information from either party, or a third party. In some cases the Committee might need to examine the lawyer's file. These procedures can take some time.

When carrying out these investigations the Law Complaints Officer's staff may try, where the circumstances are appropriate, to bring about a conciliation between the complainant and the lawyer, if it will resolve the matter to the satisfaction of both parties.

Where it has not been possible to resolve the matter, it will go before the Committee for a decision as to whether there has been unsatisfactory conduct.

What Will the Committee Do?

Once the complaint has been investigated all of the relevant information gathered is put before the Committee which then deals with the matter.

If the Committee considers that the lawyer may be guilty of unsatisfactory conduct, the Committee can:
1. Commence formal disciplinary proceedings against the lawyer before the Legal Practitioners Disciplinary Tribunal. This involves a formal hearing before the Tribunal; or
2. (With the lawyers consent), exercise its own disciplinary powers. If it finds the practitioner guilty it can:
  1. reprimand the lawyer;
  2. fine the lawyer up to $2,500 ($500 for conduct pre 2004);
  3. order the lawyer to seek and implement advice about the management of his or her practice;
  4. order a reduction or refund of fees or disbursements paid by a lawyer's client; or
  5. order that the lawyer pay some or all of the expenses incurred in relation to the inquiry.
The Committee may decide that they are not persuaded that there has been any unsatisfactory conduct (as that term is used in the Act) on the part of the lawyer. The Law Complaints Officer then writes to the complainant and the lawyer advising of that decision, and giving brief reasons for the decision. In those circumstances, the complainant may be entitled to initiate proceedings themselves against the lawyer before the Disciplinary Tribunal, if they disagree with the Committee's decision.
The Committee may decide that there has been no unsatisfactory conduct on the part of the lawyer, and also that the complaint:
1. is trivial, unreasonable, vexatious or frivolous;
2. relates to conduct or events too long ago to justify investigation; or
3. is about a matter in which the complainant doesn't have enough interest to justify the complaint.
In those circumstances the complainant will not be entitled to bring an action before the Disciplinary Tribunal themselves without the consent of the Attorney General.

Reference to the Disciplinary Tribunal

A Reference to the Disciplinary Tribunal is made by filing the forms set out in the Legal Practitioners Disciplinary Tribunal Rules. A Reference can only be issued after the Committee has made a determination on the complaint.

The Tribunal will hold a formal hearing of a Reference. At the hearing, the Committee (if it makes the complaint) or the in person complainant, is prosecutor, and must bring evidence to prove each allegation.

If an allegation of unsatisfactory conduct is proved, the Tribunal can order one or more of the following:

the lawyer be reprimanded;
the lawyer is fined up to $25,000 ($10,000 for conduct pre 2004);
the lawyer is suspended from practising law or restricted in how they practice law for up to two years;
the lawyer is ordered to do further work for their client at no cost, or a fixed cost or pay another lawyer to do the work, or to refund client fees;
the lawyer is ordered to pay the client up to $25,000 ($3,000 for pre 2004 conduct), or more if all parties agree, to compensate the client for financial losses suffered. If this order is made the client will be barred from later commencing proceedings in a court for further damages, and so the client's agreement is sought before this order can be made;
the lawyer is reported to the Supreme Court. The Supreme Court can order that the lawyer be suspended from practice or struck off the roll of legal practitioners, meaning the lawyer could not practice law again.

If a Reference is found proved, the Tribunal will usually order that a summary of its decision be made public.

If a complainant brings their own Reference and it is unsuccessful, the complainant may be ordered to pay the lawyers costs of the Tribunal proceedings.

Complaints About Lawyers' Fees

The Committee will not usually be in a position to determine whether fees charged by a lawyer are too high.

A client who receives an account from a lawyer may request an itemised account. This must normally be done within 30 days of receiving the account, but the Supreme Court can extend that time if there is good reason for the delay.

If the client is still dissatisfied with the itemised bill of costs, the client is entitled to have the bill taxed, i.e. assessed by a Taxing Officer of the Supreme Court or Family Court. This is done by written request to the lawyer. The client must normally make the request within 30 days of receiving the itemised bill (again the Supreme Court or Family Court can extend this time if there is good reason for the delay).

If a lawyer's bill of costs is taxed by the court, the court will apply the official costs scales unless there is a written costs agreement between the lawyer and the client. Where there is a written costs agreement the taxing officer will follow the agreement, unless the Court sets the agreement aside on the ground that it is unreasonable.

Substantial overcharging may amount to unsatisfactory conduct.

A brochure about the taxation procedure is available from our office.

What is the Difference Between Issues of Unsatisfactory Conduct and Negligence?

A lawyer has a duty to provide professional services with reasonable care and skill. A lawyer who fails to do this might have breached their duty of care to a client and therefore be held negligent by a court and/or, in breach of their contract with their client.

The Committee is a professional disciplinary body. It does not have power to bring an action for damages for negligence against a lawyer. If a client believes a lawyer has been negligent it will be necessary for the client to take proceedings in a court if they want to obtain damages. If you believe that you have suffered a financial loss as a result of the negligence of a lawyer you should seek independent legal advice.

Members of the public should not be discouraged from taking action through the complaints process where they believe that a legal practitioner is at fault because of unsatisfactory conduct (as explained on page 1). However they need to be aware that making a complaint about a lawyer's conduct is not a substitute for suing the lawyer for negligence in a court. Lodging a complaint to the Committee will seldom lead to a money award. It may be best for complainants to explore both options.

Conduct by a lawyer that may be negligent may still not necessarily be considered a matter requiring professional discipline under Section 164 of the Legal Practice Act or Section 25 of the Legal Practitioners Act. Many complaints of negligence are not matters that the Committee can deal with.

Because of this, in general terms it is only where a lawyer's conduct raises questions as to the lawyer's fitness to practise, or reveals a serious departure from proper professional conduct, that the Committee can use its disciplinary powers. Some examples would be neglect of an extreme nature, or gross delay. Take a practitioner who is unaware that a contract for the sale of land must be stamped to be valid. Compare this with a practitioner who is aware of the need for stamping but innocently miscalculates the amount owing. The first practitioner reveals a serious lack of professional competence, which would expose that practitioner to possible disciplinary proceedings. The second practitioner, depending on their prior record, is probably negligent only and so is accountable for any loss suffered in a court of law.