The Law Society of NSW strives to ensure that solicitors across the state are able to deliver services to the public that are of the highest professional and ethical standard.
The NSW Legal Services Commissioner (NSW Commissioner) has delegated functions under Chapter 5 of the Legal Profession Uniform Law (NSW) (Uniform Law) to the Council of the Law Society of NSW (Law Society Council). Chapter 5 of the Uniform Law is concerned with dispute resolution and professional discipline. The Law Society Council has delegated the functions delegated to it by the NSW Commissioner to the staff employed in the Law Society’s Professional Standards Department and to its Professional Conduct Committee (Committee).
After a complaint is referred by the NSW Commissioner, the Professional Standards Department conducts a preliminary assessment and if necessary, an investigation of the complaint.
Following preliminary assessment and/or investigation, the Committee considers the complaint and makes decisions and determinations in relation to the complaint.
What does the Commissioner do?
Once a complaint is lodged with the Commissioner, the Commissioner may:
- Conduct a preliminary assessment or investigation of the complaint
- Attempt informal resolution of the complaint • refer it to the Law Society Council for preliminary assessment, investigation or determination, or
- decide to close it,
- make a finding of unsatisfactory professional conduct and appropriate orders or
- refer it to the NSW Civil and Administrative Tribunal (NCAT) for determination if the Commissioner is of the opinion that the conduct amounts to professional misconduct or unsatisfactory professional conduct more appropriately dealt with by NCAT.
More information can be found on the complaint process section on the Office of the Legal Services Commissioner’s website.
When does the Law Society investigate a complaint?
The Commissioner may refer a complaint to the Law Society Council for preliminary assessment, investigation and determination. If the Commissioner refers the complaint to the Law Society Council, the Law Society’s Professional Standards Department will assign an investigator to the case.
If a complaint is referred, both the solicitor and the complainant receive notification from the Professional Standards Department and regular updates about the progress of the complaint.
The complaint will be subject to preliminary assessment. Further information may be sought from the complainant at this stage.
Following the preliminary assessment, the complaint may be closed by the Law Society Council’s Professional Conduct Committee. For further details see the Professional Standards Department's Complaints Process Information Brochure.
What happens after the Professional Standards Department’s investigation?
Once the investigation is complete the investigator will report the facts and evidence of the case to the Law Society’s Professional Conduct Committee.
Can the complaint be resolved through negotiation or mediation?
Yes, when a complaint is referred to the Professional Standards Department for investigation, the Department investigator will consider whether the matter can be resolved without the need for the lengthy and costly investigation.
A number of factors are taken into consideration when deciding if this is the most appropriate action to take.
For further details see the Professional Standards Department's Complaints Process Information Brochure.
How does the investigation process work?
The Professional Standards Department investigators must ascertain whether support for the statements of the complainant and the solicitor exists, and if so, obtain those supporting documents or statements from the complainant, solicitor or other witnesses.
Once the investigation is complete the investigator will report the facts and evidence of the case to the Professional Conduct Committee.
What does the Professional Conduct Committee do?
The Law Society Council’s Professional Conduct Committee will review each complaint and can decide:
- to request further investigation
- to close the complaint against the solicitor
- that the solicitor has engaged in unsatisfactory professional conduct and make appropriate orders, or
- to refer it to NCAT for determination if the Professional Conduct Committee is of the opinion that the conduct amounts to professional misconduct or unsatisfactory professional conduct more appropriately dealt with by NCAT
How are solicitors disciplined?
If the Professional Conduct Committee is of the opinion that the alleged conduct may amount to professional misconduct or unsatisfactory professional conduct more appropriately dealt with by NCAT it may refer the conduct to NCAT for determination. If the Professional Conduct Committee decides that the solicitor has engaged in unsatisfactory professional conduct, it may:
- caution the solicitor
- reprimand the solicitor
- fine the solicitor up to $25,000;
- require the solicitor to apologise for the conduct;
- require the solicitor to undertake training, education or counselling or be supervised;
- impose a condition on the solicitor's practising certificate.
What if the complainant does not agree with the Committee's decision?
The NSW Legal Services Commissioner has the absolute discretion to conduct an internal review of a decision of the Professional Conduct Committee to close a complaint.
If he considers it appropriate to conduct an internal review, the NSW Legal Services Commissioner assesses whether the decision was dealt with appropriately and whether it was based on reasonable grounds.
Following an internal review, the NSW Legal Services Commissioner may confirm the Professional Conduct Committee’s decision, make a new decision or refer the complaint back to the Law Society Council for reinvestigation.
More information about how to apply for a review and the review process can be found on the NSW Legal Services Commissioner’s website.
What can the Commissioner decide about the complainant's review?
After a review the Commissioner can:
- confirm the decision of the Law Society, in whole or in part
- direct the Law Society to reinvestigate the complaint
- reinvestigate the complaint itself
- refer the matter to mediation
- refer the complaint to the ADT for hearing
- caution or reprimand the solicitor
- make a compensation order.
More information about how to apply for a review and the review process can be found on the reviewing investigations section of the Commissioner’s website.
When may the solicitor seek a review of a determination of unsatisfactory professional conduct by the Professional Conduct Committee?
A solicitor may apply to the NCAT for a review of a determination of unsatisfactory professional conduct by the Professional Conduct Committee.
More information about seeking a review of a determination of unsatisfactory professional conduct can be found at the NCAT website.
What happens in NCAT?
If the complaint reaches this stage, Law Society Council commences the proceedings against the solicitor. If the NCAT determines that the conduct amounts to unsatisfactory professional conduct or professional misconduct it can may make any orders that it thinks fit, including:
- a caution;
- a reprimand;
- a fine;
- a compensation order;
- a requirement that the solicitor undertake further legal education
- a restriction on the kind of work that the solicitor may perform
- suspension or cancellation of the solicitor’s practising certificate, or
- an order recommending removal of the solicitor’s name from the Supreme Court’s Roll of Lawyers.
More information about professional discipline proceedings in NCAT in relation to solicitors (including in relation to any rights of appeal) can be found at the NCAT website.
For more detailed information about the making and determination of complaints about solicitors, download the Complaints Process Information Brochure.