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LSC clarifies position following royal commission submission
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LSC clarifies position following royal commission submission

The Office of the Legal Services Commissioner has responded to references to its disciplinary processes by the Financial Planning Association in a submission to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.

A submission from the FPA addressing questions posed by counsel assisting Rowena Orr QC about its disciplinary process and whether its protocol regarding complaints is appropriate sought to defend its internal procedures, likening them to that of certain legal professional bodies.

Among the legal bodies named was the Office of the Legal Services Commissioner, which — according to the FPA’s submission — deals with complaints about the conduct of legal practitioners by way of referrals to the Law Society of NSW or the NSW Bar Association and does not offer a complainant a right to be heard before a disciplinary tribunal.

Legal services commissioner (NSW) John McKenzie spoke to Lawyers Weekly and noted that complainants are not involved as active parties when disciplinary proceedings are commenced against legal practitioners before the relevant tribunal or court.

“However, I do point out that while complainants are not a party to disciplinary proceedings, they are involved and kept informed throughout the preliminary assessment and investigation of a complaint,” Mr McKenzie said.

“In the event I propose to determine a complaint under section 299 of the Legal Profession Uniform Law (LPUL) by ordering a reprimand, caution or other summary outcome rather than initiating disciplinary proceedings, we have a duty to provide a complainant with details of the proposed determination and an opportunity to make submissions.

“We also have a statutory duty, in considering whether or how to exercise any applicable discretions when dealing with a complaint (including the conduct of any investigation), to act in a fair manner, having regard to the respective interests of the complainant and the respondent lawyer and to the public interest.

“I also point out that in dealing with consumer complaints (as opposed to disciplinary matters), we have a statutory duty to resolve the matter as speedily and informally as is possible.”

He concluded: “This often involves extensive consultation with both a complainant and the practitioner. The most common types of consumer complaint received are cost disputes, delay and claimed liens for non-payment of costs.”

The NSW Bar Association declined to comment for this story.

The Law Society of NSW did not respond to requests for comment by the time of publication.

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