NSW Bar Association Reports Dramatic Spike in Complaints Against Barristers

The New South Wales Bar Association’s annual report for the 2023 – 2024 year was released last week, revealing that the number of complaints against barristers referred by the Office of the Legal Services Commissioner (OLSC) to the Association had increased by 43% compared with the 76 complaints referred the year before.

Dramatic Spike in Complaints Against Barristers

The report found that the OLSC referred 102 complaints to the Association over that period, representing the majority of the 177 complaints investigated.

Of the 102 complaints, 16 had been carried over from previous years, showing that the Professional Conduct Department intends to solve even long-term complaints (but has failed). 

Out of the remaining 88 complaints, 55 were closed on the basis that the Association determined they did not amount to unsatisfactory conduct or professional misconduct. The Association declined to determine six of the complaints, as they had failed to meet the deadline for lodgement.

16 of the complaints resulted in formal cautions seven were withdrawn, three were referred to the OLSC and one referred to the New South Wales Civil and Administrative Tribunal,  

Of the 102 complaints, 38 were made by the opposing party, 37 by a client or former client, and five by the Association itself. The remainder were by witnesses, government bodies or persons unrelated to the subject proceedings.

Bar Associations Remains Vigilant

The Bar Association has expressed concerns about the rise in complaints, saying the figures have prompted the ‘professional standards department to assist in developing education and training.’

It also acknowledged issues regarding the lengthy periods of time taken to investigate complaints, assuring the public it ‘continues to work on strategies for increasing efficiency in complaint handling to decrease the time taken to finalise the investigation of complaints.’ 

Complaints Process

All complaints against barrister must initially be submitted to the OLSC, which may then refer the complaint to the Bar Council, which is a body within the Bar Association.

The Council’s Professional Conduct Department will conduct a preliminary assessment of any referred complaint, before deciding whether to close all or part of the complaint, or launch a formal investigation.

The Bar Council may forward a copy of the complaint to the subject barrister, as well as seek relevant information from the complainant or barrister to assist in the course of the investigation.

The Council investigates disciplinary matters which may amount to unsatisfactory conduct or the more serious offence of professional misconduct.

The Council may close the complaint, attempt dispute resolution, make an adverse finding (eg unsatisfactory professional conduct or professional misconduct) and discipline the barrister (eg by way of a caution, reprimand or suspension) or refer the matter to the NSW Civil and Administrative Tribunal for determination.

A complaint may be closed if:

1. It is ‘frivolous’ or lacking in substance,
2. It was made out of time,
3. The complainant has not responded to a request for more information,
4. The police or law enforcement should investigate the subject matter,
5. The local regulatory authority has made a recommendation under section 82(4), 
6. The subject of the complaint is a matter of civil proceedings, 
7. The local regulatory authority thinks the complaint requires no further investigation,
8. The local regulatory authority has no power to deal with the complaint, or
9. The local regulatory authority thinks closing the complaint is in the public interest. 

Adverse Findings

The Bar Council will apply the legal profession conduct rules when determining whether a barrister has engaged in unsatisfactory professional conduct or professional conduct giving rise to an adverse decision.  

Unsatisfactory Professional Conduct

Unsatisfactory professional conduct is that which falls short of the standard of competence and diligence a public member is entitled to from a competent lawyer.’ Examples of unsatisfactory professional conduct include threatening behaviour, failure to comply, poor advance, delay, or non-disclosure of the costs. 

One example of a modern case where the NSW Supreme Court found a barrister guilty of unsatisfactory professional conduct was the Council of the New South Wales Bar Association v de Robillard (2023), where the Tribunal found that the solicitor had engaged in ‘unsatisfactory professional conduct by allowing to maintain a set of proceedings in the Supreme Court where those proceedings…invoked the coercive powers of the Supreme Court without reasonable justification on the materials available.’ 

In another case, the Council of the New South Wales Bar Association v EFA (2021) found a barrister guilty of unsatisfactory professional conduct for engaging in ‘inappropriate behaviour’. However, the Court found that there was no need for counselling, and they set forth an order restricting the publication of identifying information to protect the safety of the barrister. 

Professional Misconduct

Professional misconduct is more serious. It is defined as ‘a failure to reach a reasonable standard and diligence occurring in connection with the practice of law that would…justify finding that the lawyer is not a fit and proper person in legal practice.’ Examples of professional misconduct include overcharging, conflicts of interest, acting opposite of instructions, or misleading conduct in court. 

An example includes Law Society of New South Wales v Foreman (1994) where a barrister was found to have falsified timesheets and supplied them to instructing solicitors, which resulted in clients being systematically overcharged.

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