Legal Remedies – Complaints against Lawyers
Types of Complaints
The nature of the complaint against a lawyer determines the remedy that may be obtained by the client. Complaints fall into four main categories: delay in handling work; poor quality of work; excessive fees; and incorrect handling of trust funds.
Another type of complaint is that the client has not been adequately informed of the progress of the work the lawyer is performing.
A client should not feel intimidated by the lawyer. A client has a right to know what their lawyer is doing on their behalf. It should be remembered, however, that lawyers can charge for all telephone calls and correspondence with a client, including those arising from a client’s enquiries about progress with their matter. One approach is to write a letter to the lawyer setting out specific questions about how the matter is progressing. If this approach is not successful, consideration should be given to making a complaint against the lawyer in question.
Lawyers often seem to take a long time to handle work. In some instances this is not their fault. The delay may result from other parties, government agencies or problems in getting matters heard in court because of a backlog of court cases. But there are instances where it is the lawyer who is at fault. It may be useful to raise the matter with the senior partner of the firm concerned.
Another possibility is to complain to the Legal Profession Board or the Office of Consumer Affairs and Fair Trading providing copies of the relevant papers. Where there is a serious delay causing damage or loss to the client, it may be possible to sue the lawyer for negligence.
This is particularly so with regard to court actions: in most instances there are time limits for bringing actions, providing defences or performing other stages in the court process. If these time limits are not observed, the client may lose the legal rights that they would otherwise have had.
This is a complicated area and what follows is simply the basics. Lawyers should generally explain at the outset how much a matter is going to cost, how this cost will be calculated, how often accounts will be given and any court costs scale which applies. Lawyers are obliged in court matters to provide clients with estimates of costs at periodical intervals. The Law Society has rules providing for advice to be given by lawyers to client’s about costs as a matter progresses.
The Family Court also has rules about lawyers giving clients estimates of costs as matters progress. Clients can expect to receive estimates of their costs after they first see their lawyer and at periodical intervals as the matter progresses. Clients should always ask for details about costs when they first see a lawyer and if they do not receive details of cost estimates as the matter progresses then they should ask for them. If the cost estimates are not provided then the client can make a complaint with the Law Society and also, if the matter is a family law matter, with the Family Court. Often estimates will have to be revised because of factors outside a lawyer’s control, but if this occurs the lawyer should keep the client advised.
Costs do not include out of pockets (often known as disbursements). Lawyers can charge for stamps, phone calls and faxes, photocopies, government charges, barrister’s fees and medico-legal reports and any other out-of-pockets which are necessary or incurred with the client’s permission in the case of larger amounts. These should be shown separately on an account.
The Law Society has recommended scales in relation to many areas of law such as conveyancing and probate. Lawyers can charge a recommended scale where one is applicable and must enclose a copy of that scale with any account drawn to the scale where they do this. Lawyers can also charge a reasonable fee or make a written agreement (known as a costs agreement) with clients as to fees to be charged. Lawyers can charge less than the recommended scale though they do not generally advertise this in an obvious way. A person may have to ring around to get quotes.
A lawyer may charge a client in three main ways:
- on the basis of the value of the item in question. This is usually the case for conveyancing and probate matters. For this work, there is a statutory scale of fees depending upon the value of the property being bought or sold, or the value of the deceased’s estate.
- on an item-by-item basis for each item of work done by the lawyer in the handling of the client’s matter. Thus a lawyer can charge the client for the writing of letters, the reading of letters and for various items of work relating to preparation and appearing in court proceedings.
- according to the time spent working on the matter.
A lawyer’s charges are presented to the client in a written bill of costs. The bill of costs has two parts:
- the charge by the lawyer for doing the particular work — this is known as the lawyer’s profit costs, and are calculated by one of the three methods outlined above or a combination of them;
- the out-of-pockets which the lawyer has to pay in the carrying out of the work on the client’s case.
Where court action has been involved, the lawyer must charge in accordance with the costs scale of the relevant court unless there is a written agreement to the contrary. The bill will usually indicate whether it is based on such a scale. The Law Society will usually advise enquirers whether the correct scale, if any, has been used.
Costs agreements can be set aside or amended by a taxing officer or arbitrator (see below) if they are unfair and unreasonable. If a person is successful with a civil claim in court (other than in the Family Court where different rules apply) they will usually get an order for costs in their favour. This order will only cover their party-to-party costs. A lawyer can claim additional costs from the client which are not covered by these costs as long as they were reasonably necessary in dealing with the case. These are known as solicitor-to-client costs. These can make up to 25% of the total costs but are usually a lesser proportion. Both sorts of costs will also include out-of-pockets.
Most civil court cases are settled by negotiation before they go to trial. Before settling a case, a lawyer must tell their client the minimum amount the client will receive if the case is settled and of the payments likely to come out of the settlement.
Settlements will usually also involve agreements as to payment of costs. Where liability is an issue, agreements that each party pay their own costs are common.
A lawyer can ask that money be deposited with the firm to cover likely legal costs and fees, and can refuse to continue to represent a person if that money is not deposited. This is known as security for costs. This money must be paid into the firm’s trust account. A lawyer cannot draw amounts over $100 from the trust account or sue the person for unpaid fees without presenting an account. A client can ask in writing for an account to be itemised. The lawyer can charge for itemising larger accounts except where the itemised account turns out to be less than the original account.
If it is felt that the bill is excessive, the client can complain to the Legal Profession Board. The Board may ask the lawyer to explain how the amount was arrived at and it may indicate whether the bill seems too high. If the lawyer has calculated the cost of the services on an item by item basis, or a time basis, it may be that the lawyer will merely give an abbreviated list or description of items (without indicating the cost of each of them) and then charge a lump sum. However, the client is entitled to have the bill set out in an itemised fashion with all the costs that the lawyer is charging. This is known as getting the bill in taxable form. Although the client has a right to have the bill prepared in this form, the lawyer may arrive at a sum higher than in the original un-itemised bill.
If a client disagrees with an itemised account, either they or their lawyer can have the dispute referred to an arbitrator. An arbitrator is an independent lawyer appointed by the Law Society. If the account is under $3,000 the arbitrator ‘is to mediate and settle the dispute without formality and with the least expense’. Disputes about itemised accounts can also be dealt with by a court official called a taxing officer. It is the traditional way of dealing with disputes about accounts and generally more formal and expensive. In this process, each item on the bill has to be justified to the court officer by the billing lawyer. If the lawyer has made unreasonable charges, they will be deducted from the amount the client must pay. However, unless one sixth or more of the bill is taken off (and it is possible for the officer to add to the bill), the client will have to pay an extra sum to the lawyer for their costs in having the bill taxed. This is in addition to meeting the costs of any new lawyer who has assisted the client in having the bill taxed.
Quality of Work
It is difficult for clients to judge whether lawyers have provided poor quality work. Even if the client loses an ‘open and shut’ case, that is not sufficient indication that the lawyer has been at fault. The lawyer has to be negligent before the client has a legal remedy against the lawyer.
Negligence could arise because of excessive delay which has resulted in the client losing their legal right, or the lawyer could be negligent in handling the client’s affairs by not taking certain precautions that are commonly taken by lawyers. For example, in handling a conveyancing matter, the lawyer may not have made the necessary enquiries about the property that the client wishes to buy.
As a result, the client goes ahead with the purchase and only later discovers that the land cannot be used in a way that was originally intended. What will be regarded as negligent work varies from case to case and no firm guideline can be given here. Furthermore, not only must there be negligence by the lawyer but the client must have suffered financial loss as a result of the lawyer’s work.
To determine adequately whether a lawyer has been negligent, further legal work may be needed and the client may have to seek another solicitor if they wish to sue the previous lawyer. It should be noted that all lawyers have compulsory insurance against legal actions for negligence.