February 2019

Sexual harassment of any kind is unacceptable. For lawyers, it is also conduct that is capable of constituting professional misconduct. The Victorian Legal Services Board and the Victorian Legal Services Commissioner, as regulators of the legal profession in Victoria, do not tolerate sexual harassment. We will investigate any complaints that come to us about such conduct by lawyers. 

Employers have a responsibility to ensure their workplaces are free of sexual harassment. Where incidents of sexual harassment occur in legal workplaces, we expect that the issue is dealt with in an appropriate and effective manner. Organisations, including law practices and professional bodies, must ensure there are procedures in place to allow people to make complaints confidentially. 

In making this statement, as an organisation we are also making a commitment to ensuring we are engaged with, and embodying, best practice complaints management. As leaders in the profession, we are dedicated to ensuring our staff are safe, supported and empowered to call out any problematic behaviour, and to report any sexual harassment with full confidence it will be managed with integrity and conscientiousness. 

Based on experience in other jurisdictions we suspect that sexual harassment in the legal profession is under reported and we are seeking to quantify the issue. Therefore, we want to be clear that we expect the principals of law practices to tell us directly if their practice has a problem with sexual harassment and the steps they are taking to address that problem. 

We are calling on the legal profession to partner with us to address sexual harassment together. We will be inviting other leaders to join with us to discuss sexual harassment in the legal profession as we commence a 12-month initiative which will examine appropriate organisational responses to, and prevention of, sexual harassment. 

The initiative will include:

• A state-wide survey to quantify sexual harassment affecting the legal profession; 
• Development of guidance for legal professionals on the proper drafting and use of non-disclosure agreements; 
• Efforts to build partnerships with WorkSafe Victoria, the Victorian Equal Opportunity and Human Rights Commission and other authorities to ensure sexual harassment is dealt with at both the individual and organisational level. 

It is our intention, through this statement and the body of work that is to follow, to contribute to broader discussions about appropriate behaviour in the workplace, and what our expectations are of the legal profession as a whole. The Victorian Legal Services Board and Commissioner will prioritise the outcomes of this work, encouraging the continued awareness of, and raising of standards in all workplaces. 
The kind of behaviour we tolerate in our organisations ultimately reflects on us as members of the legal profession. As leaders, we expect other leaders in the profession to stand with us to call out inappropriate behaviour and ensure that all employees have a safe environment, with equal opportunities to succeed in their careers. 

Sexual harassment in the profession is unprofessional and unacceptable, and can lead to serious professional consequences, as well as possible civil and criminal liability. It will be a key focus area for us in the coming years: we will investigate sexual harassment complaints we receive, initiate our own complaints where appropriate, and in either case use the powers we have to address it. 

The legal profession, as a fundamental pillar of the Victorian justice system, cannot be quiet in addressing this kind of conduct. 

Reporting sexual harassment

If you wish to discuss a matter confidentially, or make a report or complaint relating to sexual harassment by a lawyer, please contact our Sexual Harassment Complaints Team.

Avoiding complaints

Complaints can be time-consuming and distressing to deal with. We understand that complaints can’t always be avoided, but there are several things you can do to keep your relationship with your client positive and friendly.

Maintain a healthy relationship with your client

The following strategies can help you reduce the chances of a client making a complaint about you:

1. Communicate clearly. Use plain English, offer realistic timelines and update clients on your progress and their legal costs regularly. 
2. Be courteous. Show your clients courtesy and respect even when you’re busy and stressed. This can help prevent an already difficult situation becoming more hostile.
3. Be clear about fees, including disbursements and any additional costs. One of the most common client complaints is that the final bill was higher than they expected. If their legal matter will take longer or cost more than anticipated, let them know as soon as possible, explain why the costs will increase and keep a record of that conversation.
4. Keep detailed notes of every instruction and communication with both your client and other counsel. If anything changes, discuss the options with your client and keep a record of the conversation.

What to do if a client approaches you with a complaint

Be open to helping them resolve the issues before they escalate to a formal complaint. This will save you time and may also strengthen your relationship with your client. There are several ways you can do this including:

• Keep your feelings in check. We understand that it’s natural to be defensive but try to control your reaction. It’s inevitable that a client will be unhappy with your service at some point in time. This is often because clients don’t understand the legal process, they’re stressed, or they don’t understand what should be happening.
• Use the complaint as an opportunity to learn. Take time to understand what your client is concerned about and what they expect from you. This can help you find ways to improve your services.
• Listen to your client. Make sure you understand what your client is complaining about before reacting. Don’t respond immediately, particularly if you’re upset, but let your client know that you’ll look into the matter and tell them when you’ll get back to them.
• Find out what your client wants. You may be able to resolve their complaint quickly. If you’re prepared to offer them something different, you should let them know.
• Communicate clearly. Talk about the issue with your client using language that’s neutral and easy for them to understand. Be sure to explain what you can and can’t do.
• Talk to other people in your organisation about how you’ll deal with complaints. For example, you may agree that you shouldn’t deal with your own complaints and another lawyer should do this for you.
• If you’re a sole practitioner, join your local law association and find out what others do. You may also be able to help each other.
• Give your client information about making a complaint to us if the matter can’t be resolved.

What to do if someone makes a complaint about you

If someone does make a complaint about you, it’s important that you:

• make reasonable efforts to resolve their concerns;
• act on our instructions or requests within the timeframe we give you;
• give us any relevant information that we need to understand about the complaint;
• avoid doing anything that may cause further conflict between you and your client;
• contact us if you do not understand what we’re asking you to do; and
• let us know if you need personal support or more time to respond.

Resources for handling complaints

The Society of Consumer Affairs Professionals Australia (SOCAP) and the Australian Centre for Justice Innovation at Monash University have developed a complaints handling toolkit for small businesses. The toolkit provides a practical guide for complaint handling within small businesses and includes tips, tools and resources to help you deal with complaints.

You can also find more information about the types of complaints clients make about lawyers in our annual reports.

Amendment, suspension or cancellation by the Board

We have the power to amend, suspend or cancel practising certificates.  Each of the following is a ground for amending, suspending or cancelling your practising certificate:

• you failed to provide the required statement following a show cause event;
• you failed to comply with a requirement of Chapter 7 made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation;
• we consider that you are no longer a fit and proper person;
• you are not, or no longer, covered by an approved insurance policy;
• you are engaging in legal practice that you are not entitled to engage in under the certificate (i.e. practising outside the conditions of the holder’s practising certificate).

In circumstances where we consider there are grounds to amend, suspend or cancel your practising certificate, we will issue a notice stating the proposed action, the grounds for the proposed action and the facts and circumstances that form the basis for our belief.

You will have a specified time to make written representations to us as to why the proposed action should not be taken and we will consider these representations before making our decision. However, where it is necessary in the public interest to immediately suspend a practising certificate, we may take this action with immediate effect. Persons subject to immediate suspension are entitled to provide written representations about the suspension. An immediate suspension will be in force until the earlier of the following:

• we make a formal determination in accordance with the usual amendment, suspension or cancellation procedure referred to above, or
• the expiration of 56 days.

If your practising certificate is suspended, you will be unable to practice during that period.

You can apply to the Victorian Civil and Administrative Tribunal for review of our decision to amend, suspend or cancel a practising certificate.

Complaints and disciplinary outcomes

We are also responsible for the receipt and handling of all complaints about lawyers in Victoria.  

Where the Commissioner initiates disciplinary proceedings against a lawyer, the case will usually be heard before the Victorian Civil and Administrative Tribunal. The decision made by VCAT, or any other relevant court, will generally be published on the Australian Legal Information Institute (AustLII) website.

Commissioner determinations

Cost disputes and service issues

The Commissioner has the power to make binding determinations in consumer matters where disputes over legal costs are below $23,865.

In situations where the disputing parties have reached a stalemate and cannot agree on what amount should be paid, the Commissioner has the power to determine what costs are fair and reasonable under the relevant circumstances. The Commissioner will generally first refer such matters for a costs review. The outcome of the costs review will often form the basis of what the Commissioner determines to be fair and reasonable legal costs.

Conduct issues

The Commissioner is also able to make a determination that a lawyer or law practice associate has engaged in unsatisfactory professional conduct. These determinations may result in the Commissioner ordering the lawyer or law practice to redo the work; apologise or undertake either counselling, supervision or further training. The Commissioner may also issue a the lawyer or law practice with a caution or a reprimand or order that compensation is paid (under certain circumstances).

Commissioner Determinations

All Determinations made by the Commissioner are now available via the Australasian Legal Information Institute (AustLII).

Commissioner initiated complaints

The Commissioner can initiate a complaint and commence an investigation into the conduct of a lawyer, even where a complaint has not been made by another person, or if a complaint has been withdrawn.These are called ‘Commissioner initiated complaints’. They were previously called ‘own motion investigations’.

This is an important power as it enables the Commissioner to investigate conduct that is improper or unsatisfactory where clients and/or witnesses may not be sufficiently aware of proper legal practices to raise a complaint. Conduct outside of legal practice may also be deemed inappropriate. Accordingly this is a significant consumer protection power.

Types of Commissioner initiated complaints

A Commissioner initiated complaint may be undertaken in any number of circumstances, including the following:

• where a disciplinary complaint is withdrawn and the Commissioner considers that the investigation should continue
• following receipt of a trust account investigation report
• following receipt of a referral by a Judge or Magistrate about a lawyer’s conduct in Court
• following identification of improper conduct of a lawyer in the media
• following identification of improper conduct in an investigation by the Commissioner into some other conduct; or
• following receipt of a report by another agency such as the Office of Public Prosecutions about a criminal prosecution of a lawyer.

There may be other occasions where the Commissioner is able to initiate a complaint.

Actions following an investigation

Following an investigation, the Commissioner has a range of powers.

Where the Commissioner is satisfied that the lawyer would be found guilty of unsatisfactory professional conduct by the Victorian Civil and Administrative Tribunal, the Commissioner may:

• order a caution or a reprimand;
• order an apology;
• order the lawyer or law practice associate to redo the legal work at no cost, or to reduce or waive the costs for that work
• order further training, education, counseling or supervision
• issue a fine up to $25,000
• recommend a condition be applied to the lawyer’s practising certificate
• bring charges against the lawyer before VCAT;

Where the Commissioner is satisfied that the lawyer would be found guilty of professional misconduct by VCAT, the Commissioner can bring charges against the lawyer before VCAT.

External examination FAQs

Read our frequently asked questions about the external examination process.

External examination requirements

Law practices and approved barristers’ clerks who operate trust accounts are required to keep trust records. These records must be examined by an external examiner (EE) each trust examination year. The trust examination year runs from 1 April – 31 March.

For the purposes of the examination, a law practice or approved clerk must provide the EE with their accounting or other records relating to the affairs of the practice or approved barristers' clerk, as well as any other information the EE reasonably requires. Penalties apply for failing to comply with these requirements.

EEs must provide end of trust year documentation to the Board by 31 May each year.

EEs, law practices and approved barristers' clerks will be contacted directly to inform them of the end of trust examination year requirements. The trust examination year requirements via LSB Online open in early April.

Resources for External Examiners

The Board has produced several resources to assist External Examiners when completing an external examination.

Visit the Resources for External Examiners page for frequently asked questions, and our Canaries in the Coal Mine video presentation providing guidance for completing external examinations.

Examination on ceasing to be authorised to receive trust money

Law practices and approved barristers' clerks who cease to be authorised to receive trust money must also have their trust records examined by an EE for any part of the trust examination year in which they were authorised to receive trust money. Law practices or approved barristers' clerks must also lodge examination reports for each trust examination year and any remaining period during which they continue to hold trust money. These reports must be lodged with the Board within 60 days after the end of the relevant examination period (See Rule 68(4) of the Legal Profession Uniform General Rules 2015).

The Act imposes heavy penalties for failing to comply with this requirement.

Approved trust accounting software

There are several trust accounting software packages available on the market. Before purchasing one of them, make sure it has the capacity to comply with the law.

A list of trust accounting software packages that have been examined and certified by the Trust Accounts Department of the NSW Law Society can be found on their website.

External examiner reporting

All parts of the annual trust examination reporting is conducted via LSB Online. Parts A and B are completed by the law practice. The External Examiner can then submit their report. If you are having any difficulties in submitting any part of the annual reporting, please contact edp@lsbc.vic.gov.au.