Preliminary Steps when Responding to an Queensland LSC Investigation Letter
Preliminary Steps: Responding to a Queensland LSC Investigation Letter
Our Disciplinary law experts have acted for many Queensland solicitors and barristers who have received a letter from the Legal Services Commissioner notifying of an investigation of a complaint made about them and seeking a response.
Do you need an extension to obtain advice and respond?
Generally, the initial letter from the LSC advising of the investigation will set out allegations and will seek a response and explanation within a certain timeframe.
It is important for practitioner not to feel rushed when responding, which may result in a substandard response.
If the lawyer requires more time to obtain advice and consider their position, they should communicate with the Commission as early as possible seeking an extension. In all but the most extreme cases, a reasonable extension to provide a response is granted.
Some lawyers feel very anxious and stressed at the thought of having to provide an account of their alleged conduct to the regulatory authority. It is a mistake to let such feelings overwhelm you to the point that you simply ‘bury your head in the sand’ and fail to appropriately deal with the investigation.
Failing to respond within the time required may of itself lead to charges of professional misconduct.
An easy step to take is to call and lawyer who is experienced in assisting legal practitioners to respond to such complaints or to make use of the senior counsellor service offered by the QLS to talk through the complaint with a senior volunteer lawyer.
The Commissioner will most likely grant an extension to allow the practitioner time to obtain advice and consider how to respond to the complaint.
Notification to your insurer
Often, complaints made about legal practitioners can include allegations of negligence or failing to act with the requisite competence and diligence.
Upon receiving such a complaint from the LSC, the practitioner ought to seek advice about whether the complaint should be provided to their professional indemnity insurer, by way of a notification. Normally, a notification of a potential claim is required by the policy wording and does not have any negative effect on premiums (until and actual claim or demand for compensation is made).
Section 443(6)(a) states that a practitioner does not have to comply with certain requests for information form the Commissioner if the response would invalidate a policy for professional indemnity or tend to incriminate the practitioner. These issues need to be properly considered before any response for an explanation or the provision of documents is made.
Does a time limit apply?
Pursuant to section 430 of the Legal Profession Act 2007 (Qld), there is no automatic right for a complaint to be made if the conduct set out in the complaint is over 3 years old.
The Commissioner must determine that it is just and reasonable to deal with the complaint, having regard to the extent and reasons for the delay or that the complaint involves conduct that could be regarded as professional misconduct or misconduct of an employee in a law practice.
Certainly, if some or any of the conduct complained about is over 3 years old, it is worth considering making submissions to the LSC about why the complaint ought to be dismissed as being out of time. In particular, if the usual arguments regarding time limits of prejudice due to the passage of time and a lack of reasonable excuse for delay are worth considering.
What Information or Material Can You Send to the LSC?
Sometimes, in the initial correspondence, the Commissioner may ask the practitioner to provide to the LSC the original or copy of their file. Almost always, the Commissioner will ask the practitioner to provide a fulsome explanation for the matters complained about.
Before responding to such a request, it is important for the practitioner to consider whether they have a duty of confidentiality or privilege with respect to the information and documents sought by the Commission.
Complaints made by a client of a lawyer need to distinguished from complaints made about a lawyer from a third party who is not in a client / lawyer relationship.
Generally, where a complaint is made by a client or former client of the practitioner, privilege is waived in relation to the information and documents of the complainant and the practitioner can provide a fulsome response.
However, where there is a third party claim by a person who is not a former or current client of the practitioner it may be a grave mistake to comply with a demand by the LSC to provide a copy of a client file or any information which is privileged or confidential when providing a response.
The lawyer should, in those circumstances, consider those matters set out in Sections 491 and 492 of the Legal Professions Act (2007) Qld before providing any response or information to the LSC.
Duty to cooperate
It is a lawyer’s obligation to assist the Commission with any investigation. In this regard, the process is different from a usual litigation process and the lawyer should not seek to take an adversarial approach to the investigation.
You must at all times be frank and honest in your dealings and responses to the LSC.
However, before simply providing ‘your side of the story’ to the regulatory authority, it is necessary to consider the matters raised above and the proper exceptions that exist to a standard request for an explanation.
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