Types of complaints

There are two types of complaints; misconduct and overcharging.

 

Misconduct

If a client believes their lawyer’s behaviour falls short of the expected standard of competence and diligence of a reasonable lawyer, then a complaint can be made to the Commissioner. So too can a third party who is impacted by the lawyer's conduct . 

 

Overcharging

If a client believes their lawyer has overcharged them, then the client can complain to the Commissioner.  So too can a third party who is impacted by the lawyer's fees. 

If the Commissioner receives an overcharging complaint within two years of the relevant bill (invoice), then he must investigate it. Outside of this period he may investigate it, but is not obliged to do so.

Regardless of the amount in dispute, the Commissioner may recommend a reduction of, or a refund of some or all of, the legal fees billed to the client.  A recommendation made by the Commissioner is not binding.

If the recommendation is not accepted, and if the amount in dispute is no more than $50,000 (for a complaint made on or after 1 December 2019) or $10,000 (for a complaint made before that date), then the Commissioner may (having first gone through a specified process) make a binding determination as to whether or not there has been overcharging and if so, the amount of the overcharge.

That specified process includes the Commissioner having to arrange for the legal practitioner’s costs to be assessed by a legal practitioner who is, in the opinion of the Commissioner, qualified to make such an assessment.  That costs assessment will normally be undertaken by an external costs assessor, and it too comes at a cost.  For a complaint made on or after 1 December 2019, the Commissioner will usually require the complainant to pay the reasonable costs of getting that costs assessment.  If the Commissioner ultimately finds that there is overcharging, he will be able to refund that amount to the complainant.

Although it is not yet included in the Act, the Commissioner expects that the Act will soon be further amended so that, if he refunds to the Complainant the costs of getting that costs assessment, then he will be able to recover it from the practitioner who has been found to have overcharged.