It’s ok for solicitors to try to resolve complaints directly with the complainants

I have always been a bit chary about allowing lawyers for whom I act to communicate directly with complainants, thinking it often more desirable for communications to be principally with the Legal Services Commissioner once the complaint process was initiated. Turns out it was a rare moment of over-anxiety on my part. In Legal Services Commissioner v JFB [2008] VCAT 842, a prosecution for failing to cooperate with a demand by the Commissioner for a written explanation in response to a complaint, Member Butcher said:

‘5. Since the application has been made the [solicitor] has provided some material to the Legal Services Commissioner and it is the view of the Commissioner that this does not constitute a full written explanation. By way of plea, Counsel on behalf of the [solicitor] outlined the circumstances in relation to the complaint and appraised the Tribunal of the [solicitor’s] endeavours to resolve the complaint through the complainant rather than by communication with the Legal Services Commission. This is not an uncommon course of action, however it ignores the statutory requirement that members of the legal profession respond to the Commissioner when required to do so. It may well be that matters which are the subject of complaint can be resolved between the legal practitioner and the client or indeed other person who has made the complaint and it would never be said that this should not be attempted, however this does not take away from the requirement and the duty to respond to the Commissioner.’ (my emphasis)

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