But the trend down in complaints over several years may be affected by the commencement of the new Legal Profession Act 2004 in NSW, which introduces a range of new obligations.

“It illustrates to me that both consumers and legal practitioners are understanding some very important points about a successful client-practitioner relationship,” said Commissioner Steve Mark.

“Clients are learning to negotiate with their solicitors more confidently, while practitioners are understanding and practising their obligations under the Legal Profession Act 2004.”

Complaints dropped to 2,694 in the 2004-05 financial year compared to 2,806 in 2003-04 and 2,768 in 2002-03.

He said any drops in complaints had been marginal, but “if you consider that there has been an exponential increase in the number of lawyers during that period the actual overall impact is probably even greater than [the figure] suggests”.

Mark said they hadn’t done any surveys on why people had or hadn’t lodged complaints, but speculated that there could be two factors.

“One is our educational approach based on the philosophy that we are attempting to reduce complaints about lawyers,” he said.

“We’d like to think our educational work is successful, and that includes every time we get a complaint against a practitioner, when we are talking to that practitioner we use that as an opportunity to assist them in avoiding complaints.”

“Counter intuitively” he said, the move to incorporated legal practices could also be a factor. Incorporated practices had received lower levels of complaints than for traditionally structured law firms. There were several “subtle” reasons for this, but it was in part due to the higher ethical obligations imposed by legislation on directors of these practices (see story above).

Mark said every complaint was unique but poor communication was a common factor leading to complaints being made.

“Almost without exception, the complaints we handle involve a lack of communication. Even though the complainant may not identify this as an issue, it will invariably transpire during the course of the investigation that a practitioner has not kept the client informed about the processes involved in their matter.”

Mark agreed the additional requirements under the new Legal Profession Act may lead to a higher number of complaints in future.

“There are two areas where there are fundamental changes. There will be far more approaches to this office to mediate disputes — both costs disputes and other disputes — and I think that’s a good thing,” he said.

“But one of the areas where we might receive additional complaints is about the new disclosure regime because there are new responsibilities where law firms have to disclose costs, including in litigation, an estimate of the other side’s costs.”

Although this was concerning many practitioners, he said they should bear in mind that “discipline” from the Office of the Legal Services Commissioner “would only flow if a person does something which is either intended to be in breach of the Act or [shows] reckless disregard”.

He said if practitioners make a legitimate estimate in good faith, it would “never amount to discipline if they’re wrong”.

Complaints to the Legal Services Commissioner

2002-032003-042004-05

2,768 2,806 2,694

238 complaints were investigated this year.

Areas with most complaints

Civil litigation matters 21.1 per cent

Family law 13.3 per cent

Conveyancing 12.2 per cent

Nature of complaints

Negligence 19.1 per cent

Costs 17.4 per cent

Ethical issues 15.2 per cent

(conflict of interest, personal conduct,

dishonest conduct etc)

Communication 13.7 per cent

Incorporated legal practices

June 2005 452

Multidisciplinary 55