Legal Services Commissioner v Merkin - [2019] QCAT 272

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Legal Services Commissioner v Merkin [2019] QCAT 272

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)

v

PATRICIA SANDRA MERKIN

(respondent)

APPLICATION NO/S:

OCR154-16

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 September 2019

HEARING DATE:

27 April 2018

HEARD AT:

Brisbane

DECISION OF:

Justice Daubney, President

Assisted by:

Mr Thomas Bradley QC
Mr Keith Revell

ORDERS:

Upon the respondent, Patricia Sandra Merkin, undertaking that she shall not practise in family law:

1.   On each of Charge 1, Charge 2 and Charge 3, there is a finding that the respondent engaged in professional misconduct.

2.   The respondent is publicly reprimanded.

3.   The grant of any future barrister’s practising certificate to the respondent shall be subject to a condition that the respondent undertake and complete a further period of 12 months’ readership in accordance with the requirements of Part 3 of the Administration Rules of the Bar Association of Queensland.

4.   The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if the discipline application were a proceeding before the Supreme Court of Queensland.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent is charged with engaging in conduct which is dishonest or otherwise discreditable to a barrister, prejudicial to the administration of justice, or likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute in contravention of r 12 of the Barristers’ Conduct Rules 2011 – where the respondent is charged with failing to exercise independent forensic judgment in contravention of r 41 of the Barristers’ Conduct Rules 2011 – where the Commissioner alleges those contraventions amount to professional misconduct under s 419 of the Legal Profession Act 2007 – where the respondent showed no insight into conduct until closing submissions at the oral hearing of this matter – whether the respondent engaged in professional misconduct – whether and what orders to make under s 456 of the Legal Profession Act 2007

Barristers’ Conduct Rules 2011, r 12, r 41
Legal Profession Act 2007 (Qld), s 217, s 220, s 418, s 419, s 420(1)(a), s 456, s 462

Giannarelli v Wraith (1988) 165 CLR 543
Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149

APPEARANCES & REPRESENTATION:

Applicant:

G R Rice QC instructed by Legal Services Commissioner

Respondent:

Self-represented

REASONS FOR DECISION

The applicant Legal Services Commissioner (“LSC”) has brought a discipline application under the Legal Profession Act 2007 (“LPA”) against the respondent, Patricia Sandra Merkin.
The respondent was admitted as a barrister in March 2012, and immediately commenced in practice.
In summary, the charges against the respondent are that:
(a)On 20 September 2013, the respondent breached:
(i) Rule 12 of the Barristers’ Conduct Rules 2011 (“the Barrister Rules”) (Charge 1);
(ii) Rule 41 of the Barrister Rules (Charge 2), and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCAT 272
Decision Date: 13 September 2019

CaseChat Overview and Summary

In the case of Legal Services Commissioner v Merkin, the Legal Services Commissioner brought disciplinary proceedings against Patricia Sandra Merkin, a barrister, alleging she had engaged in professional misconduct. The allegations included dishonesty, actions prejudicial to the administration of justice, and a failure to exercise independent forensic judgment. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether Merkin had engaged in professional misconduct as defined under the Legal Profession Act 2007 and, if so, to decide on the appropriate disciplinary orders.

The primary legal issues revolved around whether Merkin's conduct constituted professional misconduct and what orders should be made under the Legal Profession Act 2007 if misconduct was found. The Commissioner argued that Merkin's actions, which included presenting evidence that was not supported by the facts and showing a lack of insight into her conduct, amounted to professional misconduct. Merkin, on the other hand, did not demonstrate any insight into her conduct until her closing submissions during the hearing.

The QCAT found that Merkin had indeed engaged in professional misconduct, as her actions were dishonest, prejudicial to the administration of justice, and brought the legal profession into disrepute. The Tribunal also found that Merkin failed to exercise independent forensic judgment. Consequently, the QCAT imposed several orders, including a public reprimand, a requirement for Merkin to complete a further period of 12 months’ readership, and a costs order to be paid by Merkin. These findings and orders underscore the importance of maintaining high ethical standards and professional integrity within the legal profession.

Orders

Orders of the court

Upon the respondent, Patricia Sandra Merkin, undertaking that she shall not practise in family law:

1. On each of Charge 1, Charge 2 and Charge 3, there is a finding that the respondent engaged in professional misconduct.

2. The respondent is publicly reprimanded.

3. The grant of any future barrister’s practising certificate to the respondent shall be subject to a condition that the respondent undertake and complete a further period of 12 months’ readership in accordance with the requirements of Part 3 of the Administration Rules of the Bar Association of Queensland.

4. The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if the discipline application were a proceeding before the Supreme Court of Queensland.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There being findings of professional misconduct against the respondent, and there being no submission as to exceptional circumstances, it follows, by operation of s 462 of the LPA, that there will be a costs order against the respondent.Conclusion For these reasons, the decision and orders of the Tribunal are as follows:Upon the respondent, Patricia Sandra Merkin, undertaking that she shall not practise in family law:1.On each of Charge 1, Charge 2 and Charge 3, there is a finding that the respondent engaged in professional misconduct.2.The respondent is publicly reprimanded.3.The grant of any future barrister’s practising certificate to the respondent shall be subject to a condition that the respondent undertake and complete a further period of 12 months’ readership in accordance with the requirements of Part 3 of the Administration Rules of the Bar Association of Queensland.4.The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if the discipline application were a proceeding before the Supreme Court of Queensland.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Merkin [2019] QCAT 272
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant)
v
PATRICIA SANDRA MERKIN (respondent)
APPLICATION NO/S:	OCR154-16
MATTER TYPE:	Occupational regulation matters
DELIVERED ON:	13 September 2019
HEARING DATE:	27 April 2018
HEARD AT:	Brisbane
DECISION OF:	Justice Daubney, President Assisted by: Mr Thomas Bradley QC Mr Keith Revell
ORDERS:	Upon the respondent, Patricia Sandra Merkin, undertaking that she shall not practise in family law: 1. On each of Charge 1, Charge 2 and Charge 3, there is a finding that the respondent engaged in professional misconduct. 2. The respondent is publicly reprimanded. 3. The grant of any future barrister’s practising certificate to the respondent shall be subject to a condition that the respondent undertake and complete a further period of 12 months’ readership in accordance with the requirements of Part 3 of the Administration Rules of the Bar Association of Queensland. 4. The respondent shall pay the applicant’s costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if the discipline application were a proceeding before the Supreme Court of Queensland.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – COMPLAINTS AND DISCIPLINE – PROFESSIONAL MISCONDUCT AND UNSATISFACTORY PROFESSIONAL CONDUCT – GENERALLY – where the respondent is charged with engaging in conduct which is dishonest or otherwise discreditable to a barrister, prejudicial to the administration of justice, or likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute in contravention of r 12 of the Barristers’ Conduct Rules 2011 – where the respondent is charged with failing to exercise independent forensic judgment in contravention of r 41 of the Barristers’ Conduct Rules 2011 – where the Commissioner alleges those contraventions amount to professional misconduct under s 419 of the Legal Profession Act 2007 – where the respondent showed no insight into conduct until closing submissions at the oral hearing of this matter – whether the respondent engaged in professional misconduct – whether and what orders to make under s 456 of the Legal Profession Act 2007 Barristers’ Conduct Rules 2011, r 12, r 41 Legal Profession Act 2007 (Qld), s 217, s 220, s 418, s 419, s 420(1)(a), s 456, s 462 Giannarelli v Wraith (1988) 165 CLR 543 Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149
APPEARANCES & REPRESENTATION:
Applicant:	G R Rice QC instructed by Legal Services Commissioner
Respondent:	Self-represented