LAWYERS COMPLAINTS SERVICEPhone 0800 261 801

A GUIDE TO MAKING A COMPLAINT AbOUT A LAwyEr

The New Zealand Law Society operates the Lawyers Complaints Service, which handles complaints about:

a lawyer or a former lawyer;•

an incorporated law firm or a former incorporated law firm;•

someone who is not a lawyer but who is or was an employee of a lawyer or an incorporated law firm.•

In this brochure, all these are referred to as “lawyer”.

All lawyers are required to have procedures for handling complaints and they must tell clients about those procedures before commencing work for the client.

If you are not satisfied with the way a lawyer has handled a legal matter in which you are involved, you should first try using those procedures to resolve the issue. If you were not given information about the procedures, or no longer have it, ask the lawyer for information about their complaints procedures.

Lawyers are required to deal with any complaint promptly and fairly. However, if taking your complaint to the lawyer proves unsatisfactory, or is inappropriate, the Complaints Service may be able to help you resolve it or to make a formal complaint.

There are some matters that the Complaints Service cannot handle (see page 3). You can ask if your complaint is one it can accept.

THE COMPLAINTS SERVICE

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Grounds for complaint can include: A lawyer’s conduct – for example, if you believe they •have a conflict of interest.

Poor service – if, for example, a lawyer has:•

not done what they said they would do; ›

involved you in unreasonable delays; ›

given you wrong or incomplete information; ›

failed to reply to phone calls and letters; ›

not kept you informed about the work they are ›doing for you.

You can also ask the Complaints Service to inquire into a lawyer’s bill of costs if you consider it is too high. However, it will usually do this only when the bill is for more than $2,000 plus GST and not more than two years old. In special circumstances, it may look at other bills.

You can also make a complaint if a lawyer fails to comply with any order or final determination made under the Lawyers and Conveyancers Act by a Standards Committee or the Legal Complaints Review Officer.

The Complaints Service can inquire into complaints about conduct that occurred before 1 August 2008 but only if it has not already been investigated under the Law Practitioners Act 1982. It cannot inquire into conduct that occurred more than six years before 1 August 2008. Any remedies for such complaints will be those that were available under the Law Practitioners Act and not the remedies available under the Lawyers and Conveyancers Act, unless both parties agree.

GROuNdS fOR COMPLAINT

The Complaints Service cannot: Give you legal advice or a second opinion on legal •advice you have received.

Inquire into the outcome of or assist with court •cases.

Consider complaints about judges. These are handled •by the Judicial Conduct Commissioner (phone 0800 800 323 or see www.jcc.govt.nz).

The Complaints Service does not handle claims on the Lawyers’ Fidelity Fund. This fund is available to help compensate people who have lost money or property as a result of theft by a lawyer, law firm or one of their employees or agents. For more information about the fund, see www.lawsociety.org.nz or phone (04) 472 7837.

If you are unsure whether you have grounds for making a complaint, contact the Complaints Service for advice (see last page for contact details). The Complaints Service is required to provide reasonable assistance to any person wishing to make a complaint.

When you contact the Complaints Service, a Complaints and Standards Officer may try to resolve the matter informally or you can make a formal complaint.

A GUIDE TO MAKING A COMPLAINT ABOUT A LAWYER 3

In general, what should I reasonably expect of my lawyer?Whatever legal services your lawyer provides, he or she must:

Act competently, in a timely way, and in accordance with instructions received and arrangements made.•

Protect and promote your interests and act for you free from compromising influences or loyalties.•

Discuss with you your objectives and how they should best be achieved.•

Give you information about the work to be done, who will do it and the way the services will be provided.•

Charge you a fee that is fair and reasonable and let you know how and when you will be billed.•

Give you clear information and advice.•

Protect your privacy and ensure appropriate confidentiality.•

Treat you fairly, respectfully and without discrimination.•

Keep you informed about the work being done and advise you when it is completed.•

Let you know how to make a complaint and deal with any complaint promptly and fairly.•

You may complain about a lawyer who does not meet these standards.

Refer to the brochure Seeing a lawyer - what can you expect? for further information.

2. It may ask you and the lawyer you are complaining about to consider resolving matters by negotiation, conciliation or mediation.

If the Standards Committee believes the complaint could be resolved without a lengthy investigation and hearing, it may ask both parties to try to resolve the complaint, or any part of it, by negotiation, conciliation or mediation. If this leads to an agreed settlement, the Standards Committee may record the terms of the settlement and, with the consent of the parties, declare that to be all or part of its final determination.

If appropriate, the CSO will send the complaint to an experienced mediator who will contact you, possibly by phone. You and the lawyer can choose your own mediator but you would then have to pay for their services.

3. It may decide to take no action.

A Standards Committee may decide to take no action on a complaint. This could be because:

The complaint has been made so long after the issues •arose that it is not practical or desirable to investigate it.

The complaint is trivial, frivolous or vexatious, or is •not made in good faith.

The person affected does not want the complaint to •proceed.

The person who makes the complaint does not have •sufficient personal interest in it.

Some other adequate remedy or right of appeal is •available.

It may also decide to take no further action if the investigation indicates that further action is unnecessary or inappropriate.

If this is the case with your complaint, you will be told the reasons for it and about your rights to have that decision reviewed.

What happens after my complaint is received?Your complaint will be acknowledged and checked to see if it is valid. If so, it will be sent to a Standards Committee for consideration. A copy will be sent to the lawyer being complained about and he or she will have the right to make a written submission to the Standards Committee.

The Standards Committee has three options.

1. It may inquire into the complaint.

If the Standards Committee decides to inquire into the complaint, you and the lawyer concerned will be told what will happen next. You will be given the opportunity to comment on any explanation the lawyer provides.

A Complaints and Standards Officer (CSO) will usually carry out the initial inquiry or investigation. CSOs are lawyers or administrative officers who help the Standards Committees. They deal with complaints as fairly, efficiently and effectively as possible. Their investigation is impartial and they do not give legal advice to either the complainant or the lawyer. The CSO may contact you and the lawyer involved to clarify the issues and the evidence.

If your complaint concerns a bill, it may be referred to a costs assessor. The assessor may decide to meet you and the lawyer before making a report to the Standards Committee.

When the investigation or inquiry is complete, the Standards Committee considers all the evidence (this is called ‘conducting a hearing on the papers’) and decides what should happen. Usually a complainant does not have to give evidence in person. You will be kept informed of progress along the way.

MAkING A fORMAL COMPLAINT

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Our complaint form will help you provide the information required for a formal complaint. You can make a complaint without using the form but:

It must be in writing.•

You must identify yourself and the person you are complaining about.•

You must provide your contact details. •

You must state the subject matter of the complaint and support it with copies of any relevant documents.•

Can I withdraw my complaint?You can withdraw your complaint at any stage. However, the Standards Committee can still take action on its own account on matters raised in your complaint if it considers them to be serious.

What can a Standards Committee decide after it inquires into a complaint?After looking at all the evidence, the Standards Committee can determine that:

No further action is warranted •

or

There has been unsatisfactory conduct on the part of •the lawyer.

or

The complaint is so serious that it should be referred •to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (see page 7).

Whatever determination a Standards Committee makes, you will be informed of the decision and the reasons for it.

What can a Standards Committee do if it makes a finding of unsatisfactory conduct?If the Standards Committee decides that the lawyer’s conduct was unsatisfactory:

It may make an order formally confirming the terms •of an agreed settlement resulting from negotiation, conciliation or mediation.

It may censure or reprimand the lawyer.•

It may order the lawyer to:•

apologise to you; ›

pay you compensation (up to a maximum of ›$25,000) for actual loss;

reduce, cancel or refund some or all of the fees ›they charged you;

rectify any errors or omissions at his or her own ›expense;

pay a fine of up to $15,000; ›

pay you for expenses incurred in making the ›complaint.

The Standards Committee may make more than one of these orders in respect of any one finding.

It can also make other orders aimed at improving the lawyer’s standard of practice.

How long does the complaints process take?The process is required to be quick and efficient but the length of time does depend on how complex the issues are and how long they take to investigate. It also depends on whether or not the allegations are disputed. You will be kept informed of progress.

Will I have to pay anything?There is no charge for making a complaint to the Complaints Service and a Standards Committee cannot make a costs order against a complainant. However, if you want professional assistance with your complaint, such as advice from a lawyer or an accountant, then you will have to pay for that.

A GUIDE TO MAKING A COMPLAINT ABOUT A LAWYER 5

Who’s who?

Standards Committee

A Standards Committee is made up of lawyers and non-lawyers (lay members). The lawyers are senior practitioners. The lay members are people of good standing in the community. There are Standards Committees all around the country. A committee considering a complaint must have at least two lawyers and one lay member (but may have up to seven lawyers and two lay members).

Legal Complaints Review Officer (LCRO)

The LCRO is someone who is not a practising lawyer and who has been appointed by the Minister of Justice to provide an independent review of Standards Committee decisions. The Ministry of Justice administers the LCRO service.

Lawyers and Conveyancers Disciplinary Tribunal

The Disciplinary Tribunal hears cases referred by Standards Committees or the LCRO. Its lawyer members are appointed by the New Zealand Law Society while its chairperson and deputy chairperson and lay members are appointed by the Governor-General on the recommenda-tion of the Minister of Justice. When hearing complaints about lawyers, a sitting tribunal will consist of a chair-person or a deputy chairperson, with a balance of lawyer and lay members.

What can the disciplinary Tribunal do?The Lawyers and Conveyancers Disciplinary Tribunal hears and determines complaints referred to it by Standards Committees and the LCRO. Usually, these will be the most serious complaints that appear to involve misconduct. You will be told if the matter is being sent to the Disciplinary Tribunal and you will be kept informed about the tribunal process, which can involve a public hearing.

If the Disciplinary Tribunal finds the lawyer guilty of unsatisfactory conduct or misconduct, it can make any order that a Standards Committee can make, plus certain additional orders. These can include removing the lawyer’s name from the Roll of Barristers and Solicitors (striking off), which means the lawyer can no longer practise law; or suspending the lawyer for up to three years.

If the person complained about is an employee of a lawyer, the Disciplinary Tribunal can order that their present employment be terminated and that no other law firm can employ them.

The Disciplinary Tribunal is administered by the Tribunals Division of the Ministry of Justice – see www.justice.govt.nz/tribunals for further information.

What can I do if I do not agree with the Standards Committee decision?If you do not agree with a Standards Committee decision, you can ask the Legal Complaints Review Officer (LCRO) at the Ministry of Justice to review that decision. The lawyer being complained about can also ask for such a review. Any application for review must be made within 30 working days of the Standards Committee’s decision. A form for this and other information about the LCRO is available on the Ministry of Justice website at www.justice.govt.nz/lcro or phone 0800 367 6838.

The LCRO can make any order a Standards Committee can make, including confirming or changing the Standards Committee’s decision. The LCRO can also refer a matter to the Disciplinary Tribunal or back to the Standards Committee.

There is a small charge for asking the LCRO to review the decision and the LCRO has the ability to award costs against you.

A GUIDE TO MAKING A COMPLAINT ABOUT A LAWYER 7

Other informationIf you are complaining about more than one lawyer, please send in a separate complaint form about each lawyer. •If possible, send all complaint forms about the same matter at the same time.

Making a complaint does not end the client/lawyer relationship. However, it may show that you have lost trust or •confidence in the lawyer, which may make it appropriate for the lawyer to stop acting for you.

If you dismiss your lawyer, you are entitled to your file and any fees that you paid in advance that were not earned. •However, if you owe your lawyer money for fees or costs already incurred, they may be able to hold on to the original file until the money is paid. They may also, if applicable, have a claim against you for breach of any fixed-term retainer. If you go to a new lawyer, this may result in additional costs as they will need to read your file first, so you should check the costs involved before making this decision.

Written complaints must be sent to the Complaints Service nearest to the place of work of the lawyer being complained about. If you are not sure where to send your complaint, call 0800 261 801 (calls are directed to the nearest office). To email a complaint, send it to complaints@lawsociety.org.nz

Use the 0800 261 801 number to call any of the NZLS Lawyers Complaints Service offices. The rest of their contact details, and the general areas they cover, are:

WHERE dO I SENd MY COMPLAINT?

Northland, Auckland and Coromandel areas PO Box 4417, Shortland Street, Auckland 1140 Fax: 09 373 2620

Gisborne area PO Box 213, Gisborne 4040 Fax: 06 867 1563

Taranaki area PO Box 150, Taranaki Mail Centre, New Plymouth 4340 Fax: 06 758 4014

Manawatu and Horowhenua areas PO Box 497, Palmerston North Central, Palmerston North 4440 Fax: 06 356 6638

Nelson area PO Box 240, Nelson 7040 Fax: 03 545 2614

Otago area Private Bag 1901, Dunedin 9054 Fax: 03 474 1886

Waikato and Bay of Plenty areas PO Box 180, Waikato Mail Centre, Hamilton 3240 Fax: 07 834 2537

Hawke’s Bay area PO Box 341, Napier 4140 Fax: 06 835 1254

Wanganui area PO Box 712, Wanganui Mail Centre, Wanganui 4540 Fax: 06 345 7093

Wellington, Wairarapa and Marlborough areas PO Box 494, Wellington 6140 Fax: 04 471 0375

Canterbury and West Coast areas PO Box 565, Christchurch Mail Centre, Christchurch 8140 Fax: 03 366 9977

Southland area PO Box 821, Invercargill 9840 Fax: 03 218 8778

National Office (New Zealand Law Society) PO Box 5041, Lambton Quay, Wellington 6145

Law Society Building, 26 Waring Taylor Street, Wellington Phone: 04 472 7837

Fax: 04 463 2984 Email: complaints@lawsociety.org.nz

Please contact the national office if you want to arrange hand delivery of a complaint to one of the branch offices.

To the best of the New Zealand Law Society’s knowledge, the information in this brochure is accurate as at the date below. However, rules and procedures can change at any time and the most up-to-date information is available on the website at www.lawsociety.org.nz

1 July 2009