Legal representation

Anyone can complain about a lawyer’s conduct (their behaviour), and a lawyer’s client can complain about the services their lawyer provided as well as their conduct. However, only the person who is responsible for paying the lawyer’s costs (usually the client) can complain about the lawyer’s fees.

If you believe your lawyer has done something wrong or has given you a poor level of service, try to speak with your lawyer. They might be able to fix the problem once they’ve been made aware of it – see the VLSB+C website for tips on handling a dispute (www.lsbc.vic.gov.au/consumers/choosing-and- working-your-lawyer/tips-handle-dispute). You can also complain to the VLSB+C about the conduct of a lawyer who isn’t your lawyer. Before making a formal complaint, it’s a good idea to check if the VLSB+C is the right organisation to help you with your concerns (see www.lsbc.vic.gov.au/ consumers/how-we-can-help).

VLSB+C staff can give you information about how they resolve complaints and the types of outcomes you can expect in your circumstances. In some cases, they may be able to help you resolve your concerns without you needing to make a formal complaint.

You can use the enquiry form on the VLSB+C website to tell them your concerns (www.lsbc.vic.gov. au/consumers/consumer-enquiry-form) or you can call the VLSB+C on 1300 796 344.

The VLSB+C helps people to resolve issues with lawyers registered to practise in Victoria. If your complaint is about your lawyer, you can complain about the services they’re providing (e.g. poor communication, delays, issues relating to the disclosure of fees and the amount you’ve been charged, poor advice, inadequate service etc.). Anyone can complain about the conduct of a lawyer (e.g. rudeness, threatening behaviour, bullying, sexual harassment, unethical behaviour etc.).

The VLSB+C can’t deal with complaints where:

• a lawyer has sued you;
• you are disputing legal costs of more than $185 460 including barrister’s costs (see ‘Complaining about your lawyer’s bill’ below);
• you are complaining about a legal bill more than four months after the time limits noted below;
• you are complaining about something that took place more than three years ago (unless there are special circumstances);
• your complaint is about a licensed conveyancer – Consumer Affairs Victoria deals with these complaints, see ‘Contacts’ at the end of this chapter;
• your complaint is about a judge or magistrate (a judicial officer or VCAT member) – the Judicial Commission of Victoria (www.judicialcommission. vic.gov.au) deals with these complaints.

For more detailed information about what the VLSB+C can and can’t do, visit their website (www. lsbc.vic.gov.au/consumers/how-we-can-help/what- we-do-and-dont-do). This will help you decide if the VLSB+C is the best place to go for help.

If you make a complaint about your lawyer’s bill, the VLSB+C will try to resolve the dispute between you and your lawyer.

VLSB+C staff are impartial – they will not take your side or the lawyer’s side. They will try to resolve your dispute by considering the particular facts of your matter. These include whether the lawyer has appropriately disclosed their costs to you, whether the services provided by the lawyer were of an appropriate standard, whether the costs charged were fair and reasonable, and whether you and the lawyer behaved reasonably throughout the course of your matter. You and the lawyer will be expected to take part in the complaint-handling process ‘in good faith’. This involves communicating with each other honestly and fairly with the genuine aim of understanding each other’s views and reaching an agreement. It also involves behaving in an open and transparent manner, compromising where appropriate, and providing accurate information – and enough of it – within the context of negotiations.

In certain limited circumstances, the VLSB+C can determine that a bill should be reduced or that the lawyer should take other actions to resolve the issue. Where a resolution isn’t possible, the VLSB+C may give you the right to take your matter to VCAT for a decision (where the amount in dispute is under $46 365 for applications made by 30 June 2024) or to the Costs Court of the Supreme Court of Victoria for an assessment (which has no dollar limits).

The VLSB+C may close a complaint investigation without making a determination (a decision) if, for example, the bill is fair in all circumstances or the VLSB+C decides that the facts in the matter should be determined by a court or tribunal. The VLSB+C can also close the complaint if you fail to take part in the dispute resolution process in good faith.

Time and cost limits

There are limits for disputing your legal bill – time limits within which you can dispute costs and cost limits that restrict the role of the VLSB+C in becoming involved (see below). If you want to dispute a bill outside of the time and cost limits, the VLSB+C may still be able to informally help you resolve it, but only if the lawyer agrees to take part in the process.

Alternatively, you may make a claim under the Australian Consumer Law and Fair Trading Act 2012 (Vic) to VCAT, or you can apply to the Costs Court. Taking a costs dispute to the Costs Court is the most expensive option. This expense would normally only be justified for disputes over large legal bills.

For lump sum bills, you have 60 days from the date the bill is issued to dispute those costs. However, your lawyer can sue you for payment of the costs 30 days after the bill was received. If your lawyer does sue you, even within the 60-day period, the VLSB+C cannot deal with your dispute. For itemised bills, you have 30 days from the date the bill is issued to dispute those costs.

The VLSB+C can accept a costs dispute up to four months outside of these time limits if you can demonstrate that there was a good reason for the delay and the lawyer hasn’t sued you for the costs. As at 1 July 2023, the VLSB+C can deal with complaints about legal bills where the total bill is less than $185 460 (including barrister’s costs). If the total bill is more than $185 460, the amount in dispute must be under $18 550.

If the outstanding balance of the bill in dispute is greater than $18 550, the VLSB+C can help you to informally resolve your complaint if your lawyer agrees to take part in our informal resolution processes or mediation.

If your lawyer won’t agree or if an agreement can’t be reached, the VLSB+C may refer you to VCAT (if the costs are under $46,365) or the Costs Court (which has no dollar limits).

The VLSB+C can also consider disputes about the behaviour of a lawyer or the quality of the legal services they provide. For example, where work has not been done properly or at all, where there have been lengthy delays, where there has been a lack of communication, where necessary steps haven’t been taken, or where the lawyer has been rude or abusive.

The VLSB+C will assess your concerns and act on them based on the risk of harm to you and others, and based on the information supplied by you and your lawyer. In some cases (e.g. where a lawyer was rude), the VLSB+C may not take action after a single complaint, but will instead monitor for patterns of behaviour over time. Where a pattern is identified, the VLSB+C may take a closer look at the lawyer’s professional behaviour.

Investigations and determinations

• If the VLSB+C can’t help you resolve your matter, and if it’s appropriate, they can carry out a formal investigation. This won’t automatically result in the lawyer or law practice being disciplined. Rather, it’s a search to get to the facts of the matter.
• After an investigation, if the VLSB+C find it’s appropriate, they can make a legally-binding order against the lawyer or law practice called a ‘determination’. These determinations include requirements for what the lawyer or law practice must do to resolve your complaint.
• In certain circumstances, instead of making a determination, the VLSB+C may decide to bring disciplinary charges against the lawyer or law practice. In these cases, the lawyer or law practice would be required to appear before VCAT for a hearing.

Compensation orders (financial loss)

The VLSB+C can only order a lawyer to pay you compensation if you have lost money as a direct result of your lawyer’s action, and it is in the interest of justice to do so. Compensation is payable only where it’s fair and reasonable. The compensation may not be as much as you asked for. The maximum amount of compensation that the VLSB+C can award is $25,000. If your financial loss is more than that, you should seek independent legal advice about other options that may be available.

Compensation for loss of trust money (from the Fidelity Fund)

Law practices often hold ‘trust money’ for clients (or other people). Trust money is money that’s entrusted to a law practice during or in connection with the practice’s provision of legal services. The money doesn’t belong to the law practice, and must only be used according to the instructions of the client. Trust money is usually deposited into a special bank account called a ‘trust account’. However, money that’s given to a law practice while the practice is representing a person in a legal matter may still be ‘trust money’ even if it’s not banked into a trust account. It’s important to know that by law, not all lawyers are allowed to receive trust money. You can check if your lawyer is allowed by searching the Register of Lawyers on the VLSB+C website to see if they have ‘with trust’ as their type of practising certificate.

The Fidelity Fund is managed by the VLSB+C. The fund exists to compensate clients for the loss of money that was held in trust by a lawyer where the dishonest or fraudulent behaviour of a lawyer, an employee/agent/officer/director of a law practice, or a barrister’s clerk caused the loss. The VLSB+C investigates and determines claims made against the Fidelity Fund.

For more information, see the VLSB+C website (www.lsbc.vic.gov.au/consumers/how-we-can-help/ compensation/trust-money-compensation-fidelity- fund) or contact the VLSB+C on 1300 796 344 and ask to speak with a Fidelity Fund Officer.