Information about complaints processes applying to Barristers undertaking ADR

16/04/2021

A member of the Association recently raised a query which is applicable to barristers who undertake ADR work through arrangements or accreditation schemes which require the barrister to nominate a complaints process applicable to that work. By way of example, these schemes include accreditation as a Family Law Dispute Practitioner.

Rule 11(d) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 provides that barristers’ work consists of “representing a client in or conducting a mediation or arbitration or other method of alternative dispute resolution”. The complaints and discipline framework of the Legal Profession Uniform Law (NSW) (‘the LPUL’) will therefore apply to barristers who represent a client in a mediation, arbitration or other form of ADR or who conduct the ADR process.

Chapter 5, Part 5.2 of the LPUL sets out what constitutes ‘a complaint’ (see section 265) and captures both ‘consumer’ and ‘disciplinary’ matters (sections 268, 269, 270 and 271). If conduct is capable of satisfying the definitions of ‘unsatisfactory professional conduct’ and/or ‘professional misconduct’ (as defined in the LPUL), then it will fall to be dealt with under Chapter 5 of the LPUL.

Members should not assume that the LPUL framework would not apply simply because they have nominated some other dispute resolution organisation or institution as the complaints handler or complaint process.

Barristers practising as Family Dispute Resolution Practitioners and as ADR practitioners should nominate the Office of the Legal Services Commissioner as the applicable complaint mechanism, as set out in the LPUL. Barristers should not nominate the New South Wales Bar Association. The Association handles complaints as delegate of the Legal Services Commissioner and not in its own right.

The Association wishes to make clear that any barrister who signs-up to, or agrees to comply with a separate complaints process set out by the by-laws of other dispute resolution organisations, may find they are subject to two (possibly conflicting) processes, the outcomes of which may have ramifications for the barrister’s indemnity insurance policy and disclosure obligations to be made in respect of the barrister’s practising certificate.

If members would like more information, or to discuss this further, please contact the Director, Professional Conduct or the Director, Policy and Public Affairs, via (02) 9232 4055