LSB July 2022 LR

FROM THE CONDUCT COMMISSIONER
Communication and money:
Outgoing Conduct
Commissioner reflects on the
main causes of complaints
GREG MAY, LEGAL PROFESSION CONDUCT COMMISSIONER
will soon be moving on from my role as
I Legal Profession Conduct Commissioner.
My last day will be 31 July 2022.
For my final article for the Bulletin, I
will be reflecting on a few things from my
time as Commissioner.
The first thing I will say is that it seems
to me that there are two main reasons that
complaints are made by clients. The first
is poor communication. The second is
money.
From a communication point of
view, the problems are usually one of the
following:
• not giving advice that is sufficiently
clear, or at least sufficiently understood
by the client;
• not managing a client’s expectations
– in any number of respects (eg as
to timing of the matter, timing as to
something you have said you will do,
the outcome of the matter, or your
costs);
• simply not responding in a timely
fashion (or, often, at all) to a client’s
emails or phone calls.
It’s important to remember that many
clients who complain to my office are
those who are involved in a legal matter
for the first time. They are not in any
way experienced in what the legal system
has in store for them! They simply don’t
understand the system, they don’t know
how long something is meant to take, and
they certainly don’t appreciate how busy
you are!
So, it’s important that you:
• answer a client’s calls and/or emails –
even if just to say you’re busy or away
and that you’ll get back to them as soon
as you can;
• tell a client if there is going to be a delay
in what you’ve said you’ll do, and why;
• don’t pretend you have done something
for a client when you actually haven’t
done it yet.
And now let’s talk money. Because
some of you aren’t very good at doing that
with your clients – in fact, some of you are
terrible at it!
What you are obliged to tell your client
about costs is set out in Schedule 3 of the
Legal Practitioners Act. At its simplest, and
yet at its most important, for most clients
you MUST:
• estimate the total legal costs (or a range
of estimates of the total legal costs)
and explain the major variables that will
affect the calculation of those costs; and
• tell the client of any substantial change
to that estimate (or range of estimates)
as soon as is reasonably practicable after
you become aware of that change.
If you don’t comply with that obligation
then you run a number of significant risks:
• the client doesn’t have to pay your fees
(unless you first have them adjudicated
by the Supreme Court);
• you therefore (and quite obviously)
can’t sue the client to recover your fees
(unless you first have them adjudicated
by the Supreme Court);
• you may have engaged in misconduct.
So, let’s just imagine that you agree that
most of those outcomes are bad. The good
thing is that to avoid them, all you have to
do is comply with the Legal Practitioners Act!!!
Sorry for the sarcasm, but it is
warranted. I’m sure I only see the tip of
the iceberg, but there are many lawyers
who still don’t do what they need to do in
this respect. And I’m sure that they know
they should! Is it just embarrassment at
how much lawyers charge? Is it that they
think the client won’t continue to instruct
them if they actually know how much it’s
likely to cost?
If that’s the case, then please get over
it! The downside is much worse, and
your client will always appreciate full costs
disclosure (ie the truth!!!) so that he or she
can make a fully informed decision about
how to proceed.
So, on to a slightly different, but related,
topic. After 8.5 years in this role, what are
my impressions of the profession generally?
I still admire it enormously, as I always
have. As you all know, the profession
provides a critical service to the community.
Everyone works hard. Many of you do
work for clients who are disadvantaged in
any number of ways. But many of you
also do work for clients who are extremely
challenging, and who don’t understand what
you are trying to do for them. Some of
you need to do better at explaining things
to those clients (although I do accept that
some of them can’t be told!).
And I am, frankly, staggered at how
many of you still don’t comply with the
costs disclosure requirements. In the first
five years or so, I made on average about
20 misconduct findings a year. In the last
few years that has increased to the low 30s,
with that increase being directly attributable
to Schedule 3 breaches.
Some might think that that’s not
too bad in a profession that comprises
more than 4,000 people. But it’s still too
many, and just getting the basics right
about communication and money would
undoubtedly mean a lot fewer unhappy
clients than there are now. B
July 2022 THE BULLETIN 27