While both the client and the lawyer may request the court to formally adjudicate on solicitor-client costs, this procedure can be costly and time consuming. The Legal Profession Conduct Commission (LPCC) may be an appropriate alternative.
If a person makes a written complaint of overcharging the Commissioner must investigate the complaint if the complaint is made within two years of the client receiving the final bill. However, the Commissioner may still investigate a complaint if it is made outside of that two year period. The Commissioner may determine not to investigate the complaint if it considers the complaint frivolous or vexatious or if it is already the subject of civil proceedings between the client and the lawyer (for example if the solicitor has already sued the client in the Magistrates Court for their outstanding fees), or it would be more appropriately investigated by another body [Legal Practitioners Act 1981 (SA) s 77C, ss 77N(2)-(3)]. The Commissioner is entitled to require a complainant alleging overcharging to pay a reasonable fee for any investigation undertaken by the LPCC [s 77N(2)], but currently does not impose any charge for the investigation of cost complaints (as at July 2017).
The Commissioner will generally commence his investigation by considering whether the complaint is suitable to be resolved by agreement between the parties, usually by conciliation. Conciliation is voluntary. If both the solicitor and the client agree to participate in the conciliation process, a conciliator will facilitate a conference to attempt to resolve the issues giving rise to the complaint.
During an investigation, the Commissioner has the statutory power to require a lawyer to:
The Commissioner may arrange for the costs to be assessed by an independent lawyer who is qualified to make such an assessment. From 1 December 2019, the Commissioner may require a complainant to pay the reasonable costs of the assessment, but may, if the complaint is upheld, refund these costs to the complainant [s 77N(4a)].
At the conclusion of an investigation about overcharging, the Commissioner:
From 1 December 2019, the Commissioner is empowered to make binding determinations in relation to complaints of overcharging where the amount in dispute is no more than $50,000 [s77N(7)(a)]. Prior to 1 December 2019, the limit was $10,000. The new limit applies to complaints lodged from 1 December 2019, even if the final bill to which the complaint relates was delivered to the client before 1 December 2019 [see Legal Practitioners (Miscellaneous) Amendment Act 2019 (SA) Sch 1]. Where the Commissioner makes a determination that there has been overcharging, the Commissioner will determine the amount that has been overcharged. The Commissioner’s determination will specify the amount that has been overcharged and the determination is binding on, and enforceable against, the lawyer complained about.