Dealing with lawyers

Contributed by GeorgiaKalyniuk and current to 6 September 2024

The word lawyer is a general term that applies to anyone who has been 'admitted' to the legal profession by a Supreme Court in an Australian State or Territory. When a lawyer is admitted, they have to show the Court that they are eligible to be a lawyer and that they are a fit and proper person. They then swear an oath to the Court to conduct themselves with honesty and diligence.

Once a person has been admitted to a Supreme Court, their name is entered in the 'roll' and they become an Australian lawyer. However, they are not entitled to practice law until they have been issued with a practising certificate by the regulator of lawyers in their State or Territory (known as their jurisdiction). In the Northern Territory, it is the Law Society Northern Territory (the Law Society) who issues practising certificates. It is a criminal offence for a person to practice law if they do not have a current practising certificate.

When a person is admitted to the Northern Territory Supreme Court, they are admitted as a 'barrister and solicitor'. This is because the NT has what is known as a fused profession. Some lawyers may choose to practice only as a solititor, or only as a barrister.

A person who has been admitted as a lawyer in another Australian jurisdiction can also apply for admission in the Northern Territory, but they're not required to do so. Instead, they can use their interstate admission to apply for a local NT practising certificate with the Law Society. A lawyer with an interstate practising certificate can also practice law in the Northern Territory for once off matters or short periods of time, provided they are doing so in accordance with the rules (known as conditions) on their interstate certificate. Lawyers who plan to do this should contact the Law Society for more information (see Contact points ).

The Law Society maintains a list of lawyers who hold a current Northern Territory practising certificate which is available on its website. Interstate practitioners who conduct some work in the NT will not appear on this list, but regulators in other jurisdictions maintain similar lists. People dealing with lawyers who have questions about whether they are authorised to practice law can contact the Society on the information above.

The difference between barristers and solicitors

The words 'solicitor' and 'barrister' are technical terms which refer to the kind of work a lawyer undertakes. Most lawyers will practice as solicitors, so most people will deal with a solicitor when they have a legal issue. Solicitors usually deal with their client directly and undertake work on a client's file in their office such as drafting (a legal word for writing) documents like contracts and wills, or doing conveyancing work (arranging the transfer of a property between a buyer and seller).

Many solicitors also prepare documents for litigation matters. Litigation is word used to refer to a legal matter which is being considered by a court or a tribunal. Solicitors can appear in court (meaning stand up and represent their client before a judge or other judicial officer) and many solicitors do this work regularly. However, when legal matters are complex or mostly involve court proceedings, it is likely that barristers will become involved.

Barristers are lawyers who specialise in courtroom advocacy. Becuase the NT is a fused profession, many lawyers may work as solicitors and also undertake more complex litigation matters as barristers. However, most barristers choose to specialise and work only as barristers. Usually barristers are hired by a solicitor on behalf of the client, who pays the barrister's fees. The client still has the ultimate say as to whether a barrister should be hired or fired. Barristers also often work in areas of alternative dispute resolution, such as providing mediation or arbitration services (meaning ways of resolving a legal dispute other than going to court, see Alternative dispute resolution). Barristers are also often hired to provide specialist advice into complicated or new areas of law.

When is a solicitor needed?

Seeking legal advice can be time consuming and costly. However, seeking legal advice at an early stage can also prevent a dispute from becoming worse, or ensure that a person does not compromise their legal rights by mistake. The decision about whether to contact a solicitor depends on:

• the type of problem involved;
• the possible consequences being faced, for example, if there is a risk of imprisonment or losing custody of a child;
• the sort of action a client wants to take;
• how much money is available; and
• the availability of legal aid or a free or subsidised community legal service.

In some cases it will be better to try and resolve an issue without hiring a lawyer. Some areas of law have processes which are designed to be used without the help of a lawyer. For example, disagreements with neighbours or where there is a small amount of money owing to someone. These are types of civil disputes which can be dealt with by a person in the Northern Territory Civil and Administrative Tribunal (NTCAT) without the need for a lawyer. In many cases, there are other ways to resolve disputes before or instead of going to Court. This can include using a form of alternative dispute resolution such as negotiation or mediation. Lawyers can also be involved in these forms of dispute resolution but many times people can reach an agreement or resolution with the help of an independent third party who acts as a mediator and without having to hire their own lawyers. There are many free dispute resolution and mediation centres which have been set up across Australia to help ordinary people resolve small civil issues this way (see Alternative dispute resolution). In the NT, the Community Justice Centre provides free mediation services.

Another area of law where people commonly use mediation is in family law disputes, which relate to the breakdown of relationships, the split of shared property, and the care of children between family members. The Family Court system has also been designed for people to be able to represent themselves without hiring a lawyer, but in reality most people involved in family law disputes will have lawyers who represent them. This is because family law is complicated and the Family Court can make decisions which have a big impact on people's lives and their relationships. If a person decides to not have a lawyer and stand up for themselves in the Family Court or another court, this is called self-representing.

The NT Legal Aid Helpline can provide initial information about legal matters and may help a person determine whether a lawyer is required. Legal advice should definitely be sought by a person charged with a serious criminal offence, like robbery, serious assault or serious fraud; a major personal injury or civil action, or child protection or family law proceedings.

Initial advice

The following inexpensive avenues are open to people who want to determine whether their problem has a legal solution:

• Darwin Community Legal Service (DCLS) provides legal advice and representation in general civil law matters, including neighbourhood disputes, as well as specialist advice clinics for tenants, seniors and people living with disabilities. DCLS also holds regular free advice sessions run after-hours by volunteer solicitors who can either directly assist clients or refer them to a centre or a solicitor who can. Anyone can use the free advice service (see Legal aid ).
• Other community legal centres such as the Top End Women's Legal Service (TEWLS), Katherine Women's Information and Legal Service (KWILS), Central Australian Women's Legal Service (CAWLS) and the Environmental Defender's Office (NT) provide free legal advice to eligible members of the community.
• Some private solicitors offer free legal advice at the first meeting, while others participate in the Law Society First Interview Scheme and charge $99 (including GST) for the first half hour of an initial consultation and conditions apply. A list of firms which offer First Interview Scheme appointments is available from the Law Society website (see Contact points ). A person should ask about fees before making an appointment.
• Legal Aid NT offers free or low cost legal advice, and ongoing assistance to those who meet certain criteria. Legal Aid will work out whether a person can meet those criteria by doing a means test (looking at finances) and a merits test (looking at the strength of the perosns case) (see Legal Aid ).
• First Nations people can contact the North Australian Aboriginal Justice Agency (NAAJA), Northern Australian Aboriginal Family Legal Service (NAAFLS) or Central Australian Aboriginal Family Legal Unit (CAAFLU) for free or low cost legal advice and assistance.

If a person finds themselves in Court without legal representation, they can sometimes obtain assistance from a duty lawyer. Duty lawyer services are offered for free across various courts, including at the Local Court for people who have been charged with a criminal offence or are dealing with a domestic violence matter, either as applicants, protected persons or defendants. NT Legal Aid also offers a duty lawyer service at the Youth Court building in Darwin for criminal and child protection matters. A person who wants advice from a duty lawyer should arrive at court early and with all the information they have about their case. If their legal matter is complicated, a duty lawyer can assist to have the court date adjourned (rescheduled) until the person can seek legal advice. If there is no duty lawyer service, a person can ask the court themselves for an ajournment to seek legal advice. They should then contact a lawyer as soon as possible.

Choosing a solicitor

It can be difficult to know which solicitor will be the right one to work on a legal matter. Some solicitors are generalists and practice across many different types of law while others work to develop expertise in a particular area but may not be qualified in others. Some solicitors will undertake accredited specialist training in an area of law and can promote themselves as an "accredited specialist".

Many law firms will have multiple solicitors who practice in different areas, and will assign a client to a solicitor who practices in the relevant area. A solicitor can take on a case in an area of law which is different from their specialty or usual area of practice, but they must be able to access education or mentoring in that area from a qualified source and must tell their client about their lack of relevant expertise. A person who is thinking about hiring a solicitor (a prospective client) should always enquire about a solicitor's level of expertise before signing them on to ensure that they are getting the right solicitor for them. The Law Society maintains a list of law firms which work in different areas of law, available on its website, which can provide guidance to prospective clients who are looking for a lawyer.

Lawyer-client relationships

The relationship that a client has with their lawyer is special because of the trust that people place in their lawyers. Most people will hire (engage) a lawyer in periods of big change and difficult circumstances in their life, and put their faith in their lawyer to do the right thing by them. The relationship betwen a solicitor and a client is called a fiduciary relationship and it means that lawyers have certain ethical duties about how to interact with their clients.

When a client hires a solicitor, they enter into a contract which is called a retainer or sometimes a letter of engagement. Retainers are usually in writing, which is easier for everyone to understand, but might sometimes be agreed verbally. A contract should outline the method of charging to be adopted (see Contracts and consumer protection ). Some of the ethical duties that a lawyer has come from this agreement, like the duty to act in the best interests of their client and to be competent and diligent in their work.

Lawyers also have ethical duties that come from their relationship to the Court. Lawyers are called officers of the court because of the oath they swear to the Court when they are admitted which means that Courts trust lawyers to tell them the truth. There are also rules made by parliament which give lawyers additional obligations or help clarify those obligations. In the NT, the legal profession is regulated by the Legal Profession Act 2006 and the duties of lawyers are set out in the Law Society NT's Rules of Professional Conduct and Practice (NT Conduct Rules). Barristers duties are set out in a different set of rules, which are the Northern Territory Bar Association Barrister's Conduct Rules.

It is important for there to be good comunication between a client and their solicitor. The relationship should be respectful on both sides. Ultimately, a solicitor is hired by a client and the client is entitled to ask questions about the way their case is being conducted, request updates and expect the solicitor to get back to them within a prompt and reasonable time. However, solicitors are also entitled to charge for the time they spend on a client's matter and may charge for extra time spent explaining the matter and providing updates or clarification. Clients are entitled to ask questions abbout legal costs and lawyers must inform clients about the costs payable and what may happen if their case develops in certain ways. They also have to provide an updates if there are any significant developments about costs and must provide an itemised bill if the client requests they do so.

Once a client and a solicitor have entered into an agreement, the solicitor must act on their client's instructions. They cannot act in a certain way when they do not have instructions to do so and must properly inform their client of all the legal options available to them so that the client can give informed instructions. A solicitor's ability to outline all the legal options available to a client will be impacted by the information provided by the client. Clients should provide their lawyers with all relevant information about their legal matter. A lawyer also cannot act on a client's instructions blindly without excersing their own independent judgment, meaning that they can only act on instructions which are legal and ethical.

It is best for a client to confirm their instructions in writing and receive written advice in most cases. This may sometimes increase the costs payable to the lawyer but it avoids the risk of misunderstandings and can help clients if they have more time to reflect on the advice given to them, particularly when the matter is complicated.

Ultimately, a lawyer cannot make decisions for a client and the client must decide which option is best. If a solicitor does not follow their client's instructions, the client can end (terminate) the retainer and seek another lawyer. A lawyer may also terminate the retainer in circumstances where a client does not follow the legal advice given and the relationship between the client and the lawyer breaks down. Clients can generally terminate a retainer for any reason, although they may still have to pay any fees for work which has been completed until then. There are some other circumstances where a lawyer may also terminate the retainer but these are more limited, and must always be done with 'resonable notice' to the client. What counts as reasonable notice depends on the circumstances, including any upcoming court dates or deadlines.

When a solicitor is doing legal work, they will create a client file and draft documents which will go in that file alongside any correspondence and documents provided by the client. Most of the documents in the client file are owned by the clilent, including documents which the solicitor has prepared for a client's court case or other legal matter (like a will, a contract, an affidavit or a settlement statement). If a client wants these documents, they must be provided by the lawyer. If there are fees owed to the lawyer by the client the lawyer may refuse to provide the client with the documents until this outstanding amount is paid. This is called a lien. Some documents kept in a client file by a lawyer are owned by the lawyer rather than the client and the lawyer is not required to provide those documents (things like file notes). Solicitors are required to keep a complete record of case files for several years and should maintain copies of any original documents given to clients.

Court costs

When a case is filed in court and becomes a litigation matter, the relevant court can decide who should be responsible for paying legal costs associated with the litigation. This means that a person who is a person names in a court case (a party) can become responsible for the fees the other party owes to their lawyer, as well as their own legal fees. This is one of the reasons why people seek to avoid litigation.

Generally, the Court is likely to make an order that the party who wins the case should have their reasonable costs paid by the other side. This is more common in some areas of law than others (ie, it is very uncommon in criminal law and domestic violence order proceedings) and is something a party to a litigaiton matter or any legal matter which may end up in court should discuss with their solicitor. If a court orders that a person is responsible for paying costs, their lawyers may appeal this decision.

In awarding costs the court can:

• specify an amount to be paid; or
• suggest that the client and the other party negotiate an agreement regarding costs or apply to have the amount of the costs determined through the process of taxation (see Disputing solicitors' fees ).

If costs are awarded, a client will receive a bill from the other party's legal representatives which can be treated in the same manner as a bill from their own legal representatives. The amount of the costs can be challenged through a process called taxation (see Taxation of costs).

Fees

Solicitors' fees

A person who hires a solicitor should discuss the way that the fees for their legal services will be charged before any work is done. The way a solicitor calculates their fees can vary, including charging by the hour (or part of an hour, often 6 minutes at a time) or quoting a fixed fee for the work they have agreed to do.

The Legal Profession Act 2006 (NT) sets out the legal requirements for a solicitor to follow when they are talking to their client about their fees and when they charge those fees. A solicitor is required to provide certain information to their client about their fees (called costs disclosure). This includes an estimate of the likely cost of the legal case (including differences in cost for different legal options); how often the client will be billed; that the client has the right to disagree with (dispute) the bill, and how a client can dispute their bill. Costs disclosure must be given in writing for any matter where costs are likely to exceed $1,500.00. If the solicitor does not provide costs disclosure then the client does not have to pay their bill until it has been assessed by an independent expert.

Costs agreements

A costs agreement is a written and signed agreement between a client and a solicitor that sets out the agreed amount of the legal fees for the proposed work or, if there is no agreed amount, the way those fees will be calculated. Costs agreements must comply with the rules for costs agreements set out in Part 3.3 Division 5 of the Legal Profession Act 2006 (NT). Costs agreements often include other terms and conditions of the retainer, like the rules as to when a solicitor can stop working for a client or how long they will keep a client's documents.

A costs agreement is binding on both parties, so a client should seek independent advice or shop around before signing.

Some costs agreements provide that the payment of a solicitor's fees only becomes due if the case is successful. These are called conditional costs agreements but most people would have heard of them as 'no win, no fee.' This type of costs agreement is often used in personal injury cases like worker's compensation, medical negligence or public liability matters. There are certain prescribed proceedings where 'no win, no fee' arrangements are prohibited, such as criminal and family law matters. Conditional costs agreements generally do not include disbursements or outgoings, meaning that any fees that a solicitor pays to a third party (such as a barrister, court filing fees, expert witness costs) are still payable by the client, and the legal fees are higher than normal given the solicitor is bearing the risk that their bill won't be paid. If a client has a 'no win, no fee' arrangement and they lose in a court or tribunal, they may still end up being responsible for the winning party's legal costs if the Court orders them to pay. Conditional costs agreements can include other unique terms, for example that if the client refuses to accept a settlement offer (ie to accept money or the doing of some action from the other side instead of going to a trial) which the solicitor considers to be realistic and reasonable, then the solicitor can terminate the agreement and charge fees for the work done until that point.

A solicitor cannot ask the client to agree to an arrangement where the solicitor gets paid a percentage of any settlement or award monies. This is called a contingency fee and is currently illegal.

Fees for representation in courts and tribunals

A person who is a party to a litigaiton matter before a Court or Tribunal and has engaged lawyers to represent them will be responsible for the fees associated with their legal representation. Litigation can attract particularly high fees, as these are usually complicated matters and lawyers may have to go to Court several times before a matter is resolved. Not all litigation matters will be complicated, but when the parties cannot agree to resolve a litigation matter at an early stage then it will continue towards what's often called a contentious hearing or a trial. This is where each parties' legal team works to prepare evidence to support their case and prepares legal arguments to support that evidence before a date where the Court will hear all the evidence and arguments together and a judge will make a decision. These matters are time consuming and complicated and often attract high fees.

Many courts and tribunals, including the Supreme Court, Local Court and Family Court, set the fees that lawyers may charge when they appear before them. Fees are set out in the published scales, usually found in the rules of a court. For example, the NT Supreme Court Rules provides an hourly rate that can be charged by solicitors, and the Local Court Rules ( LCR ) contain a scale of practitioners' costs. However, these fee scales are generally only used when determining how much the Court will order the loosing party to pay of the other party's legal fees to set a standard for how much is reasonable and prevent overcharging. The rate a lawyer can charge their own client is usually set by the market, meaning that it will depend on how in demand they are, their level of experience and the type of work.

Barristers' fees as disbursements

Barristers' fees can be a significant cost in any court case. Barristers may charge a fixed fee for their services, but generally charge different hourly, daily or half-day rates, depending on the type of work (see Barristers' fees ). The barrister charges the solicitor for their services and the solicitor passes the cost on to the client as a disbursement. The solicitor is responsible for paying the barrister's fee, so they usually want their client to pay some money in advance. Any money paid in advance is put into the solicitor's trust account and a trust account receipt must be issued to the client if the client requests one. A client who wants a particular barrister to handle their case or to place a limit on the fees payable to a barrister must inform their solicitor. Otherwise, the solicitor will choose the barrister and often that choice is often based on who is available at the time and their experience.

The solicitor's bill

A solicitor is entitled to charge for all reasonably incurred costs, including time taken to receive telephone calls from a client or to read documents or letters received on a client's behalf. When the bill is given to a client will depend on the type of matter and how complicated it is. For simple matters, the solicitor might issue just one invoice to the client for a lump sum. In more complicated matters, it is likely that clients will receive invoices progressively (say, once a month) and these may be broken down into detail about each item making up the total bill. A bill may also contain disbursements for fees incurred up front by the solicitor in conducting the client's case. If a client receives a lump sum bill and wants to see the break down of the charges, they can request the solicitor provide an itemised bill. They need to make that request within 30 days, or longer if their costs agreement gives them a longer period of time. Once requested, a solicitor must provide the client with the itemised bill within 21 days of the request.

Solicitor's bills are generally payable within 30 days of delivery to the client. If a client then requests an itemised bill, the client will essentially then have a further 30 days to pay the bill. All bills must include a notice informing the client of their right to dispute the bill, discussed below. If the bill remains unpaid after the relevant period has passed, the solicitor can sue their client to recover their costs. They may also charge interest on any amounts which are overdue (provided the client has previously agreed to this).

If a client decides to dispute the bill, a decision about whether the solicitor's costs are reasonable may depend on whether the client gave the authority for the work to be done and the amount to be charged. Relevant information as to whether a charge is reaosnable will include whether the client was warned that they might be incurred and whether they are of an unusual nature.

Disputing solicitors' fees

The first step toward resolving any dispute over fees should be to approach the solicitor and raise any concerns. Some solicitors will offer to discount their fees to avoid a lengthy dispute. Clients can access resources available on the Law Society's website, or contact the Society for information about their right to challenge legal costs, including about how to talk to their lawyer, the difference between lump sum and itemised bills, costs mediation, costs assessment, setting aside a costs agreement and other avenues for challenging legal costs.

Where the bill is less than $10,000 a person can apply to the Statutory Supervisor at the Department of Attorney General and Justice to have the costs mediated. If a compromise cannot be reached, or if a person doesn't believe there is any possibility of resolving the dispute through mediation, the client can apply to a costs assessor to determine what is fair and reasonable. There may be costs associated with obtaining a costs assessment. An application for a costs assessment must be made in writing and an application fee must be paid. The application must be made within 12 months of the bill being given (or the final bill if interim bills were issued) or 12 months of the costs being paid if no bill was given. A client can apply for a costs assessment even if the costs have already been paid. Once an assessment has been requested the solicitor cannot take legal action to recover the costs, until such time as the assessment has been completed. Solicitors can also apply for a costs assessment, but this happens very rarely. If the bill is reduced by 15% the solicitor must pay the costs associated with the costs assessments. Otherwise the costs assessor decides who pays the costs associated with the costs assessment - the costs assessor can decide it is the solicitor, or the client or that the costs are shared between the solicitor and the client. .

The application form for a mediation with the Statutory Supervisor or a costs assessment can be obtained from the Law Society's website.

If either party is dissatisfied with a decision of the costs assessor they may apply to the Supreme Court for a review, and in limited circumstances can lodge an appeal. There will be costs associated with a review or with an appeal.

Making a claim under the Small Claims Act

An alternative for disputing a solicitor's bill is to make an application under the Small Claims Act 2016 (NT) ("SCA"). The same avenue can be used to claim for unsatisfactory or negligent services where they amount to breach of contract (see Contracts and consumer protection ). The SCA enables the NTCAT to inquire into claims for amounts or the performance of work not exceeding $25,000 in value or relief from payment of money of an amount not exceeding $25,000.

Claims are processed with as little formality as possible; for example:

• NTCAT’s rules and procedures have been designed to support parties who are self-represented;
• A party may engage a lawyer to appear on their behalf in their small claims matter, however, only with leave of NTCAT;
• NTCAT is not bound by the rules of evidence, but it must apply the rules of procedural fairness, including to give party to a fair opportunity to state their case; and
• NTCAT can appoint an assessor to give expert evidence or advice or decide on a question of fact.

NTCAT may require the parties resolve their dispute with the assistance of alternative dispute resolution processes to promote resolution of their matter by a settlement. NTCAT may require the parties to:

• attend a compulsory conference which aids the parties to identify and clarify the issues between them;
• attend mediation by an approved mediator; or
• achieve a negotiated settlement of the matter; and
• if the parties agree in writing, NTCAT can make any decision or order necessary to assist in the settlement of the matter.

NTCAT has powers (within the small claims monetary limit) to:

• order a party to perform work to a value;
• provide relief from payment of an amount of money;
• grant the orders sought by the applicant party in a proceeding; or
• make any other alternative orders or relief it considered appropriate. In general, parties bear their own costs in a proceeding before NTCAT. However, NTCAT can make a costs order in certain circumstances.

Claims must be made in the NTCAT within three years of when the money was owed. If the person who owes money confirms the debt in writing during the three years, the three year deadline restarts from that date. However, applications by clients should be made as soon as possible after the dispute arises because of time limits in relation to payment of lawyer's invoices.

Barristers' fees

Barristers are engaged by the solicitor on the instructions of the client so they bill their fees to the solicitor. A client should ask their solicitor about a barrister's fees before instructing a solicitor to engage a barrister.

Barristers are not prevented from suing a solicitor for unpaid fees, but this is practically very rare. In any event, a solicitor is obliged under the Solicitors Conduct Rules to pay a barrister irrespective of whether their client has paid and are then entitled to seek that amount from their client as a debt owing. Solicitors will also often request that clients pay for the barristers fees in advance.

Historically barristers were not entitled to sue for fees. Due to legislative changes there is now no legal reason to stop barristers suing for fees in the NT, but by tradition they don't. In any event, a solicitor is ethically obliged to pay a barrister irrespective of whether their client has paid them or not. For this reason, a solicitor will often request a client to pay the barrister's fees in advance.

Taxation of costs

If the Court orders one party to pay the other party's costs in court proceedings the Court may make the order for a specific amount or it may make an order that the amount of the costs is 'as agreed or to be taxed'. If the parties cannot agree on the amount to be paid under the costs order the party with the order for costs can apply to the Court for the costs to be taxed. The solicitor for that party will prepare a bill in taxable form and file it with the Court. The officer whose job it is to tax costs, known as the Taxing Master of the Court, will conduct a hearing and go through each item on the bill to decide if it should be allowed, disallowed or allowed at a reduced amount. At the end of the taxation hearing the taxing officer will add up the allowed amounts and the total is the amount the other party has to pay under the costs order.

Problems with lawyers

Conduct of lawyers

Lawyers sometimes make mistakes. Sometimes a lawyer's mistake may fall below their duty to act in the best interests of their client, in which case the client may have a legal right against their lawyer in negligence. Any rights that a client may have in negilgence or to recover fees or damages from their lawyer is a matter for civil action and is something a person should seek other legal advice about.

Alternatively, a lawyer may make a mistake of a more serious character which can amount to what is called a conduct issue. Conduct issues arise when a lawyer does not follow their ethical obligations and professional responsibilities which come from their retainer, the Court's oversight their honesty and diligence, or the Solicitor or Barrister Conduct Rules. Sometimes, negligent work may be so bad as to also be a conduct issue, and conduct issues might also arise out of mistakes like delay; failures to communicate; a failure to follow instructions or a misrepresentation of client instructions. A lawyer's conduct (being something that they have done or something they have failed to do) would also be of concern where they have made significant errors in the management of their legal practice and their trust accounts, acted dishonestly or in bad faith, acted in conflict, or done something in their personal life which was so serious as to raise a question about whether their character was sound enough for them to practice law.

Under the Legal Profession Act 2006 (NT), there are two levels of conduct that a lawyer could be found to have done. The lower level is called unsatisfactory professional conduct and the more serious type is called professional misconduct. It is the Law Society that has the responsibility to investigate potential conduct issues of lawyers, in accordance with the Act. Clients or other people who are concerned with the conduct of a lawyer can make a complaint in writing to the Law Society (see Complaints below).

Common conduct issues

Some of the most common issues people may encounter with their lawyers include:

• delay;
• poor quality work;
• negligence;
• failure to communicate; and
• handling money.

Legal problems sometimes take a long time to resolve. Delays are not always a solicitor's fault. They may be caused by other parties, by hold-ups in gaining access to documents or by backlogs in court cases. At other times the necessary steps may take longer than a client feels is reasonable. A client should discuss the reason for delays with their solicitor. A person who believes a lawyer has caused unnecessary deay can make a complaint to the Law Society.

It can be difficult for client's to judge the quality of a solicitor's work and many times a client may feel like the work is poor due to a misunderstanding about the law and its consequences. Alternatively, merely winning a case does not always mean that a lawyer has got the best possible outcome or that their work is good. Clients who are concerned about the quality of a solicitor's work can always raise concerns with their solicitor or a supervisor if the solicitor works in a law firm or other organisation like Legal Aid or a community legal centre. They could also contact the Law Society for more information about whether they should consider making a complaint. Clients can withdraw their instructions at any time if they believe their solicitor is not doing their best work, but should be aware this may have negative consequences.

What will be regarded as negligent work varies from case to case. No firm guidelines can be given here. A client who wishes to sue their solicitor must not only show negligence, but also that they have suffered financially from it. An example of negligence could be a failure to provide advice about possible options available or to make necessary inquiries, but this may not always result in an actual loss by the client. If the negligence is severe, or involves other conduct such as covering up past negligence, this is likely to be a conduct issue. If a client has suffered another bad outcome even though they haven't had a monetary loss, this may make the conduct issue worse.

Barristers and solicitors acting as counsel in the courtroom can't be sued for negligence in the actual conduct of a case in court, though they can be sued for negligence in other areas, such as for giving negligent advice. All barristers and solicitors must take out compulsory professional indemnity insurance to cover themselves against claims for negligence.

A solicitor has a duty to keep their client informed of progress on their case and to report at reasonably regular intervals or when a significant development occurs. Clients should not be afraid to ask their solicitor questions but should also be aware that solicitors can charge for all telephone calls and correspondence with a client. One practical approach a client can take to ensure maximum information for minimum cost is to list in writing specific questions for their lawyer. It helps to avoid misunderstandings if the client and lawyer agree at the beginning of the matter when and how the client will be updated.

Due to the nature of certain legal work, solicitors often hold money on trust for their clients. For example, a solicitor might hold the money a client has paid to purchase a house or a client may leave trust account funds with a solicitor to pay disbursements. Sometimes solicitors insist that money be paid in advance before they will act in particular matters. In all cases trust funds are kept in a trust account, which is a separate account maintained by a solicitor and subject to extensive control and regulation under the Legal Profession Act 2006 (NT), including requirements that the account and trust records be audited by an independent external auditor every year.

A client who has difficulty obtaining money held by their solicitor on trust or who has difficulty obtaining a trust account statement about their money in the solicitor's trust account should immediately contact the Law Society. A client who loses money entrusted to a solicitor who has dealt with it improperly can claim for their lost money from the Fidelity Fund . A client wishing to make a claim should set out their case in a letter addressed to the Chairman of the Funds Management Committee (which manages the Fidelity Fund) and send it care of the Law Society (see Contact points ).

Complaints

Every member of the community is entitled to have their solicitor or barrister act responsibly and ethically in their interests.

In general, issues with a lawyer should be raised with that lawyer first, and then with their supervisor if they have one. This may not always be appropriate but can often resolve issues early before they become bigger misunderstandings. If the issue can't be resolved or it's not appropriate for it to be resolved directly (such as if it involves suspected fraud, criminal activity, bullying or harassment), the person can make a complaint to the Law Society as set out below.

In addition, NT Legal Aid also has an internal complaints process and complaints can be lodged with the Director (see Contact points ).

The Law Society

The Law Society is a member body for lawyers in the NT, but it is also empowered with the ability and the responsibility to regulate lawyers in the NT. All lawyers practising in the NT are subject to regulation by the Society, even if they hold an interstate practising certificate.

Anyone who has a complaint concerning the professional conduct of a barrister or solicitor can make it in writing to the Law Society. A complaint must be made within 3 years from the time the concerning conduct occured, but this time limit can be waived by the Society in certain circumstances, which include if the conduct is of a very serious nature and there is strong evidence of it. Making a complaint to the Law Society does not involve any cost to the complainant but make take some time, depending on the complexity of the matter.

Sometimes, a person will want to make a complaint but doesn't feel comfortable with their name and their complaint being revealed to the lawyer they are complaining about. A lawyer about which a complaint is made has a right to know what it's said they have done (or not done). In some circumstances, the Society may delay giving the lawyer certain information or redact certain information from a complaint if there is a risk of harm or prejudice to any person involved, but the Society cannot accept fully anonymous complaints.

If information in the public domain or otherwise reported to the Society with evidence to support it raises a concern about the conduct of a lawyer the Society has the power to commence its own complaint and to investigate that conduct.

The Society receives a broad range of complaints from different people, including by clients across various areas of law; people working with lawyers like psychologists or real estate agents; parties on the other side of contested litigation matters; concerned members of the public and other lawyers. Complaints by clients could include:

• persistent delay in answering a client's letters or telephone calls;
• not accounting for money belongng to a client;
• not keeping certain information confidential;
• acting in a matter against a former client where the former client provided relevant confidential information;
• charging grossly excessive costs;
• unreasonably delaying completing work on a client's behalf; or
• failing to properly inform the client of the progress of the case

The Law Society has no power to deal with the negligence of solicitors, although this is a commonly made complaint. If a solicitor has been negligent and a client feels they have suffered a loss as a result and wishes to be compensated, they have to take the matter to court and should seek independent legal advice.

The Law Society is given wide powers of investigation by the Legal Profession Act 2006 (NT) which apply to both lawyers and non-lawyers. The Society can force lawyers or other people to provide it with copies of documents or other information, to cooperate with its investigations and to ask questions put to them. Investigators also have the power to execute search warrants and seize documents from a lawyer's office or home in exceptional circumstances. All of these powers are given to the Society to help it protect members of the public from bad conduct by lawyers.

Once a complaint is made to the Society, it will first conduct a preliminary assessment. During the assessment, the investigators may contact the complainant and the lawyer and ask them for questions or more informaiton. Sometimes, the Society will try to resolve the complaint if it does not involve a serious conduct issue but some kind of misunderstanding or small mistake. If there is some evidence which supports the complaint and it seems that there may be a conduct issue, the Society will proceed to investigate the complaint. The Society can use its investigative powers during both a preliminary assessment and a formal investigation.

If there is no evidence to support a complaint or what the lawyer has done (or not done) is not serious enough to warrant the Society taking action against them, the Law Society may summarily dismiss the complaint. Before summarily dismissing a complaint, the Society must provide the parties with an opportunity to put forward their case about the proposed dismissal.

If a matter proceeds to investigation, the Society's investigator will prepare a report for the Ethics Committee who will consider the complaint, the evidence and the law, and make a recommendation about whether the lawyer should be found guilty or the complaint should be dismissed. The parties must also be provided with an opportunity to be heard on the recommendations of the Committee. Their responses and the recommendations are then provided to the Society's Council, which has decision making power in relation to complaints.

Council may decide to dismiss a complaint. If the person who complained does not agree with this outcome, they can appeal the Society's decision to the Legal Practitioner's Disciplinary Tribunal, discussed below.

Council may also decide that there should be a finding that the lawyer has committed unsatisfactory professional conduct. If the lawyer is otherwise competent and diligent and has no other significant complaints against them, the Society can decide how the lawyer should be punished. This includes privately or publically reprimanding the lawyer, and/or ordering them to pay a fine. If the lawyer does not agree with this outcome, they can also appeal to the Disciplinary Tribunal.

If the Council decides that the person's conduct is serious enough that there should be a finding that the lawyer has committed professional misconduct, they must commence a matter in the Disciplinary Tribunal against that lawyer.

The Disciplinary Tribunal

If not satisfied with the decision of the Law Society then the complainant or the barrister or solicitor can appeal to the Disciplinary Tribunal. For very serious matters the Law Society itself will refer the complaint to the Disciplinary Tribunal, as discussed above.

The Disciplinary Tribunal is a body of lawyers and non-lawyers set up under the Legal Profession Act 2006 (NT) to maintain the highest standards of professional behaviour within the legal profession and to make findings about complaints of professional misconduct or unsatisfactory professional conduct against barristers and solicitors. The members of the tribunal are appointed by the Attorney-General and consist of former magistrates or judges, lawyers and lay persons.

The Disciplinary Tribunal has all the powers of the Law Society and more, including the power to order one of the parties to pay the costs of the proceedings before it and to recommend that the Supreme Court remove their name from the roll, preventing them from ever practicing law.

The Supreme Court

If a party is dissatisfied with a decision of the Disciplinary Tribunal they may appeal to the Supreme Court which can make any order it considers appropriate, including an order removing a solicitor's right to practise.

Legal aid lawyers

Whether salaried staff of NT Legal Aid or private solicitors paid by it to act in a particular case (see Legal Aid ), NT Legal Aid solicitors are covered by the same professional conduct rules and complaints mechanisms as those that apply to other members of the legal profession.

In addition to the complaints mechanisms discussed, NT Legal Aid staff are subject to internal disciplinary procedures. A complaint can be made to the Director about the conduct of its salaried staff. The Director has the power to discipline and counsel salaried staff. The Director may also be able to help an individual with a complaint about a private solicitor being paid by NT Legal Aid to act in their case.