Legal Services Commissioner v Merkin [2019] QCAT 272

Giannarelli v Wraith (1988) 165 CLR 543

Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149

G R Rice QC instructed by Legal Services Commissioner

[1] The applicant Legal Services Commissioner ("LSC") has brought a discipline application under the Legal Profession Act 2007 ("LPA") against the respondent, Patricia Sandra Merkin.

[2] The respondent was admitted as a barrister in March 2012, and immediately commenced in practice.

[3] 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
• (b) On 12 May 2015, the respondent breached Rule 12 of the Barrister Rules.

[4] The Barrister Rules are rules made by the Bar Association of Queensland ("BAQ") pursuant to s 220 of the LPA. That section falls within Chapter 3 Part 3.2 of the LPA. Section 217 provides:

217 Main purposes of pt 3.2

The main purposes of this part are as follows -

(a) to promote the maintenance of high standards of professional conduct by providing for legal profession rules to regulate persons who may engage in legal practice, or the practice of foreign law, in this jurisdiction;

(b) to allow each regulatory authority to provide for administrative matters by providing for administration rules.

[5] Sections 418 and 419 of the LPA provide non-exhaustive definitions of the terms "unsatisfactory professional conduct" and "professional misconduct":

418 Meaning of unsatisfactory professional conduct

Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

419 Meaning of professional conduct

(1) Professional misconduct includes -

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner, whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

[6] Section 420(1) enumerates particular forms of conduct which are capable of constituting unsatisfactory professional conduct or professional misconduct. Relevantly, s 420(1)(a) particularises:

conduct consisting of a contravention of a relevant law, whether the conduct happened before or after the commencement of this section;

Note -

Under the Acts Interpretation Act 1954, section 7, and the Statutory Instruments Act 1992, section 7, a contravention in relation to this Act would include a contravention of a regulation or legal profession rules and a contravention in relation to a previous Act would include a contravention of a legal profession rule under the Legal Profession Act 2004.

1. By s 218, the term "legal profession rules" includes the Barrister Rules. As appears from the note to s 420(1)(a), by the application of the Acts Interpretation Act 1954 and the Statutory Instruments Act 1992, a contravention of one of the Barrister Rules would amount to a contravention of the LPA, and therefore be a contravention of a "relevant law" for the purposes of s 420(1)(a).[1]

A barrister must not engage in conduct which is:

(a) dishonest or otherwise discreditable to a barrister;

(b) prejudicial to the administration of justice; or

(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

A barrister must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client's and the instructing solicitor's wishes where practicable.

1. Charges 1 and 2 arise out of the respondent's conduct of an appeal before the Full Court of the Family Court of Australia on 20 September 2013 in the matter cited as Carpenter & Carpenter.[2] That was an appeal against final parenting orders which had been made by Murphy J on 29 November 2012 after a contested hearing in which the respondent had also appeared for the mother.

[11] The respondent's client and the respondent were of the view that the written transcript of the hearing before Murphy J did not accurately reflect a particular incident which they contended had occurred in the course of the hearing. This alleged incident was not in the written transcript. When the audio recording of the hearing was checked by the client, it was found that the written transcript was accurate, i.e. there was no evidence in the audio recording of the asserted incident.

[12] The grounds of appeal, which were prepared by the client herself, albeit apparently with some input from the respondent, included Ground 9: "the interests of justice in this case cannot be seen to be supported where the recordings of proceedings were edited and or amended before final transcription by the official transcribers".

[13] In other words, what was being alleged was that the audio recording of the hearing before Murphy J had been tampered with to delete the asserted incident before the recording was sent for written transcription.

[14] On 27 June 2013, the client filed her summary of argument for the appeal. In relation to Ground 9, that summary said:

The interest of justice cannot be supported where the records of the proceeding of proceedings (sic) are edited and or amended before final transcription by the official transcribers.

The transcript is incomplete and absent of sections of the proceedings before the court where the internal record of the transcript demonstrates events not transcribed but nevertheless having been raised during trial. It is not open to counsel to edit or amend the transcript: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, at 72, per Heydon, Crennan, Bell JJ, and indeed had the transcript be (sic) different than that (sic) the transcript provided by the official transcribe (sic), it would constitute a serious offence as an officer of the court. If the records have been edited or amended in any way, is (sic) not open to the judiciary or anyone on behalf of the judiciary to amend or edit the audio recordings of the proceedings before they are sent to the official transcribers.

[15] On the material before this Tribunal, it is clear that on 19 August 2013 the client herself listened to the audio recording and ascertained that the written transcript was an accurate rendition of the audio recording.

[16] Despite this, on 18 September 2013 an amended summary of argument, which had been settled by the respondent, was filed in which it was asserted:

The interests of justice cannot be supported where the recordings of the proceeding of proceedings (sic) are edited and or amended before final transcription by the official transcribers.

The transcript is incomplete and absent of sections of the proceedings before the court where the internal record of the transcript demonstrates events not transcribed but nevertheless having been raised during trial.(41) It is not open to counsel to edit or amend the transcript. Neither is it open for anyone to do so either: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, at 72, per Heydon, Crennan, Bell JJ, and indeed had the transcript been different than the transcript provided by the official transcriber, it would constitute a serious offence as an officer of the court. If the recordings have been edited or amended in any way, is (sic) not open to the judiciary or anyone on behalf of the judiciary to amend or edit the audio recordings of the proceedings before they are sent to the official transcribers.

1. In evidence before this Tribunal, the respondent confirmed[3] that at the time she settled the amended summary of argument:
   • (a) she knew that the audio recording and the written transcription matched;
   • (b) nevertheless it was the respondent's intention to frame the argument in terms that the audio had been interfered with and edited prior to transcription.
2. Indeed, the respondent said that when preparing the submissions and even at the time she gave evidence before the Tribunal she considered it a possibility that the trial judge himself, or someone closely connected with the administration of justice, had interfered with the audio recording.[4]

[19] The transcript of the hearing before the Full Family Court, in which the respondent appeared for the mother, is in evidence before this Tribunal. The respondent confirmed to the Full Family Court that she knew there was no evidence to support the assertion that the audio recording had been interfered with, but nonetheless persisted in advancing the contention.

[20] In the course of argument before the Full Family Court, the respondent was asked how Ground 9 demonstrated error by the trial judge, to which the respondent replied, "I'm not sure, your Honour. It's unprecedented."

[21] When asked what she was asking the Full Family Court to do about the matters complained of in Ground 9, the respondent said, "This appeal court is in a position to ask for the Attorney-General to intervene and look at this."

[22] The Full Family Court, apart from dismissing Ground 9 as not a proper ground of appeal, was highly critical of the respondent's conduct in advancing that ground. It is sufficient to refer to the following observations in the Court's joint judgment:

1. It has not been established to us that anybody has amended or edited the transcript of this hearing or the audio of this hearing before it has been transcribed.

2. The particular concern that we have about the conduct of

   Ms Merkin is that despite the mother in effect no longer pursuing the claim that the transcript had been edited or amended, and limiting the claim in her evidence to an allegation in relation to the audio recording, her counsel has, as referred to above, pursued both claims, and most troubling, has suggested that the trial judge may have been involved in this.

3. In these circumstances we proposed to have the Appeals Registrar forward these reasons for judgment and the relevant part of the transcript of the proceedings before us to the Bar Association of Queensland for them to take whatever action they consider appropriate.

[23] On 18 July 2014, the BAQ informed the LSC that it had received the referral of the matter from the Family Court. The LSC then agreed that the respondent's conduct ought be investigated by the BAQ. In the course of its investigation, the BAQ obtained, inter alia, several responses from the respondent. It provided an investigation report to the LSC in December 2014. Subsequently, the LSC gave the respondent a copy of the investigation report, and the respondent provided the LSC with a written submission.

[24] In her submissions to the BAQ, the LSC and her written submissions to this Tribunal, the respondent did not resile from her conduct in advancing Ground 9. On the contrary, the respondent repeatedly sought to rationalise and justify her conduct.

[25] So, for example, in a written response to the BAQ dated 3 November 2014, the respondent made lengthy submissions as to why there were "reasonable grounds to allege tampering with the Family Court transcript", and concluded:

This is a matter of great and critical importance to the issue of natural justice and importantly to the integrity of the Australian legal system as a whole. I submit it was my duty not only as an advocate but my duty as an officer of this court to raise it.

[26] In her response to the LSC the respondent, apart from again reprising her contentions as to why her submissions to the Full Family Court had been proper and justified, went so far as to seek to characterise herself as a "whistle blower".

[27] This position of seeking to justify her conduct persisted in her formal responses to the discipline application and in her affidavit and oral evidence before this Tribunal. For example, in her affidavit filed in this proceeding the respondent made a variety of assertions about what she generically described as a problem in the Family Court with the reliability and accuracy of transcripts, and said:

1. No-one has addressed this problem that I am aware; not the legal profession, not the Court, neither the Attorney-General. Given the silence on this issue I considered that the formality of the Appeal Court may be the only option to address this problem. I reject the contention that the Court itself was not the appropriate forum. While the form of the ground of appeal may be lacking, the editing of transcripts is known among the profession and no other member of the legal profession appears to have done anything to address this serious issue that dates back from my own knowledge to 2007. I genuinely believe it is a serious matter in the interests of justice and so was appropriate for the Full Court to be presented with the evidence for either an internal review into this practice or referral to the Attorney-General. My ground of appeal revolved around the fairness of conducting a trial and then an appeal if the transcript was not accurate. I also genuinely believe it was appropriate to address the Court directly any issues in relation to anything that may interfere with the operation of justice - whether or not anyone can be identified as having done them.

1. Under cross-examination before this Tribunal, the respondent, when confronted with the criticisms levelled against her by the Full Family Court, said that she did not accept that there was any professional lapse on her part.[5]

[29] It was only during her closing submissions to this Tribunal that the respondent, for the first time, demonstrated any proper insight into how she had conducted herself before the Full Family Court, and the seriousness of her conduct in advancing such a grave submission without any proper basis for so doing. She accepted that she had failed to apply appropriate judgment about the level of evidence necessary to sustain such a serious allegation. The respondent expressed remorse and apologised. She conceded that, for various personal reasons, she was not suited to practice in family law. She recognised that this case was beyond her level of competence and experience as a newly-admitted barrister. She acknowledged that she had demonstrated a lack of independence which affected her reasoning and judgment.

1. On 12 May 2015, the respondent appeared before the Full Family Court for an appellant mother in the appeal cited as Kamano & Kamano.[6] It was an appeal against parenting orders which had been made in favour of the father, following a contested hearing before Cleary J in which the present respondent also appeared as counsel for the mother.

[31] The grounds of appeal advanced by the respondent included Ground 2 in the following terms: "Her Honour erred when she made Orders that reflected Her Honour's own researches suggesting the existence of a finding of alienation of the children by the mother."

[32] The respondent's written argument filed in the Full Family Court included the following written submission:

On 17-20 March 2013 her Honour presented a talk at the 6th World Congress on Family Law and Children's Rights entitled 'Some Psychological Outcomes for Alienated Children Who, Under Court Orders, Had Moved to Live With Their Rejected Parent.' It is submitted the orders subsequently made reflected the substance of the presentation. The issue of 'alienation' was a live issue during proceedings. However, there was no notice to the parties of her Honour's presentation to the 6th World Congress on Family Law and children's Rights and that the presentation could be a likely influence on her decision making process. It is submitted the Final Orders reflect the recommendation of the concept of alienated children in circumstances where the expert had no properly tested specialisation in domestic violence to differentiate between that and 'high conflict' as an explanation for the children's behaviour and what they reported to the expert, there is no evidence properly established that 'alienation' is differentiated from Parental Alienation Syndrome' and it is not a general rule that 'alienation' is an uncontested concept.

[33] In fact, Cleary J had participated in a presentation entitled "Alienation in High Conflict Cases" at a conference in March 2013 in which she said, amongst other things:

Each case is a dispute, usually between parents, but sometimes others, as to appropriate arrangements and decision making for children. It is not an opportunity to apply labels outside legal expertise. Judges may know something or very little about social science. Whatever the state of that knowledge it cannot be brought to bear on a case without there being evidence.

[34] The transcript of the appeal hearing is in evidence before this Tribunal. It is sufficient to note that the respondent persisted in advancing this ground, notwithstanding the fact that, when questioned by the Court, she was unable to articulate how the ground could be supported, nor could she identify any part of the trial judge's reasons or orders which demonstrated or supported the proposition that the trial judge had acted on her own research rather than the evidence.

[35] In its joint judgment, the Full Family Court relevantly held that:

• (a) the trial judge had not, in fact, made the finding of alienation of the children by the mother on which this ground was premised, and on that basis alone the ground failed;

• (b) counsel for the mother (i.e. the respondent) was unable to identify where in the reasons or orders was "reflected her Honour's own researches suggesting the existence of a finding of alienation of the children by the mother";

• (c) counsel for the mother (i.e. the respondent) directed no submissions to demonstrate how the content of the conference presentation found reflection in the proceedings, and nor did any submission establish any connection between the content of that presentation and the case at hand;

• (d) the content of the paper in fact correctly reflected the law, and was diametrically opposed to the respondent's contentions;

• (e) this ground of appeal was not only devoid of merit but was fanciful.

[36] Their Honours then observed:

1. The seriousness of the error contended for by this ground, and the fact that it and the argument in support of it is so devoid of merit and so lacking in foundation as to be fanciful, raises serious concerns about Ms Merkin's conduct in advancing it at all. The ground and the argument in support of it plainly suggest actual bias by pre-judgment. That is a serious assertion central to judicial integrity and the integrity of the judicial process.

[37] After referring to counsel's paramount duty to the administration of justice, and the reflection of that in the Barrister Rules, the Court said:

1. Here, not only was there no foundation at all for the ground and the argument in support of it, but at least part of the argument advanced was premised on a misleading statement as to the content of the presentation referred to. Ms Merkin's misleading (and thus false) assertions made about the integrity of a judge without the slightest foundation is an abdication of Counsel's paramount duty to the administration of justice and is deserving of the strongest condemnation.

2. We propose to have the Appeals Registrar forward these reasons for judgment and the relevant part of the transcript of the proceedings before us to the Bar Association of Queensland for it to take whatever action it considers appropriate.

[38] The BAQ then forwarded the matter to the LSC, which commenced an investigation.

[39] Consistent with her conduct in relation to the other charges, the respondent's response to the investigation and to the charges laid in the discipline application was to seek to justify the submission she had made to the Full Family Court and to vindicate her own position.

[40] Even under cross-examination before this Tribunal, the respondent persisted with that attitude, and affirmed that she had been asserting that the trial judge's own researches, as reflected in the conference paper, had led the trial judge consciously or subconsciously to making the particular orders, and that the judge demonstrated a subconscious bias.

[41] Again, it was only in the course of closing submissions before the Tribunal that the respondent extended an apology for her conduct, and said that it was not her intention to bring disrepute to the profession or the judiciary. She said that she wanted to advance an argument which she mistakenly thought was properly grounded.

[42] The prescriptions on conduct set out in Rule 12 align precisely with the essential qualities required of a barrister:

• - Rule 12(a) reflects the personal attributes of honesty, probity and integrity;

• - Rule 12(b) adopts and reinforces the barrister's paramount duty to the administration of justice;

• - Rule 12(c) acknowledges the role played by each barrister in maintaining public trust and confidence in the profession and the administration of justice.

[43] Rule 41, by its self-explanatory terms, affirms the established position relating to members of the independent Bar. Barristers in private practice are independent of their instructing solicitors and clients. That does not merely refer to being independent in a business or commercial sense. It means that a barrister is duty bound to render independent advice, regardless of the solicitor's or the client's own preconceptions or views. It means that counsel engaged in a case will certainly have regard to and seek to accommodate a solicitor's or client's wishes, but must always exercise the barrister's independent forensic judgment in running the case. It means, as the rule says, that the barrister is not a mere mouthpiece. It means that the barrister must always be conscious of the fact that he or she is an officer of the court, whose paramount duty is to the administration of justice, and on whom the court is relying for the exercise of independent skill and judgment.

1. To the extent that these codified obligations are sourced in counsel's paramount duty to the administration of justice, it must be recalled that, in the performance of that duty, there is a strong element of public interest.[7] Writing extra-judicially, Ipp J said of the so-called "duty to the court": [8]

This does not mean that the duties are owed to a particular judge. On the contrary, duties of this kind are in reality owed to the larger community which has a vital public interest in the proper administration of justice. That public interest is indeed the source of those duties, and the court in enforcing them is acting as the trustee and guardian of the due administration of justice.

1. In relation to the quality of independence maintained by Rule 41, Mason CJ observed that counsel's duty to the court: [9]

... epitomizes the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client's success, but also to the speedy and efficient administration of justice.

[46] In relation to the matters encompassed under Charges 1 and 2, it is clear that:

• (a) the respondent had no factual basis for persisting with Ground 9;

• (b) the respondent knew she had no factual basis for persisting with Ground 9;

• (c) the respondent persisted with Ground 9 knowing that it was not a proper ground of appeal, but for the collateral purpose of ventilating what she perceived to be an issue concerning the administration of justice;

• (d) the respondent cast her argument in such a way as to at least raise a question about the integrity of a judicial officer, or someone close to that judicial officer.

[47] Individually and collectively, these circumstances were discreditable for a barrister and were likely to diminish confidence in the administration of justice. The respondent's persistence in advancing Ground 9 in these circumstances also manifested an abrogation of the necessary quality of independence.

[48] Accordingly, the Tribunal finds that:

• (a) in respect of Charge 1, the respondent engaged in conduct in breach of Rule 12; and

• (b) in respect of Charge 2, the respondent engaged in conduct in breach of Rule 41.

[49] As to the matters under Charge 3, it is also clear that the respondent's conduct was discreditable for a barrister and was likely to diminish public confidence in the administration of justice in that the respondent:

• (a) advanced Ground 2 in circumstances where there was not only no evidence to support it, there was evidence to contradict it;

• (b) advanced, and persisted in advancing, a serious allegation of bias on the part of a judicial officer without any proper basis for doing so; and

• (c) advanced, and persisted in advancing, Ground 2 when it was not a proper ground of appeal.

[50] The Tribunal therefore finds in respect of Charge 3 that the respondent engaged in conduct in breach of Rule 12.

[51] The conduct under each of the charges was not a momentary or fleeting lapse of judgment. Rather, in each case it involved a wilful and persistent course of action by the respondent which was, for the reasons stated above, inimical to the respondent's paramount duty to the administration of justice. The Tribunal has concluded that the respondent's breaches were each so fundamental and persistent as to warrant a finding of professional misconduct on each count.

1. These findings of professional misconduct enliven the Tribunal's discretion under

s 456 of the LPA to make any order it thinks fit, including any of the orders stated in that section. This is a wide discretion, which is exercised primarily in protection of the public under the maintenance of proper professional standards.[10]

[53] As already noted, the respondent was a recently-admitted barrister at the time of the first incident and still a very junior barrister at the time of the second. That lack of experience in the profession may go some way to explaining her lack of appreciation of the gravity and serious consequences of the submissions she advanced in each of these cases.

[54] Of concern, however, is the fact that, even when confronted with the direct inquiries made by the BAQ and the LSC, and even when responding to the allegations made in this discipline application and giving evidence, the respondent persisted in seeking to justify her conduct. In so doing, she demonstrated a lingering lack of appreciation of the application in a barrister's professional role of the most fundamental of counsel's duties. It was only in the course of closing submissions, after counsel for the LSC had addressed the Tribunal, that the penny seemed to drop with the respondent that her conduct in these matters had involved a serious departure from the standards expected of counsel.

[55] Apart from inexperience, the respondent also attributed her failings to certain personal issues which she recognised rendered it inappropriate for her to continue to practice in family law. The respondent offered an undertaking to no longer practice in that area of law. The respondent also acknowledged the need for her to undertake further education and training, especially in the field of professional ethics, in order to equip herself properly for practice as a barrister.

[56] The respondent was given leave to file further material after the hearing. That included a statement by her in which she confirmed her undertaking not to practice in family law and details of efforts she had made to undertake professional development sessions, particularly in ethics units. The respondent also filed statements by a number of practitioners. One was a barrister of significant seniority who offered to act as the respondent's mentor. The others were from five solicitors, and also one client, who spoke favourably of the respondent's work as counsel in various family law and domestic violence matters.

[57] But for the very late realisation and appreciation of the fundamentally misguided approach she had taken in these matters, there may well have been cause for this Tribunal to doubt the respondent's ongoing fitness to practice. It seems clear, however, that the respondent gained insight not only into the fact that her conduct in each instance involved a departure from her paramount duty as counsel, but also the need for ongoing education and mentoring to reinforce her understanding of the essential qualities necessary for practising as a barrister.

[58] These instances of professional misconduct were, however, sufficiently serious as to warrant the issuing of a public reprimand.

1. The respondent's practising certificate has not been renewed since 2016. Noting the respondent's willingness to be mentored and to undertake further professional development, it nevertheless seems to the Tribunal that this would be better achieved under a structured process, rather than simply ordering ongoing mentoring on some unstructured basis. Given that the misconduct in this case involved elements which are the professional foundation for life as a barrister, the Tribunal is inclined to accept the submission made on behalf of the LSC that the Tribunal should order[11] that it be a condition of any future grant of a practising certificate by the BAQ that the respondent undertake and complete a further period of 12 months' readership under Part 3 of the Administration Rules of the BAQ. This will ensure close mentoring of the respondent by both senior and junior counsel, and also require the respondent to complete the practical and professional development components of readership.

[60] 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.

[61] 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.

1. [1] See definition of "relevant law" in LPA, sch 2.
2. [2] [2014] FamCAFC 100.
3. [3] T 1-30.
4. [4] T 1-35-36.
5. [5] T 1-41.
6. [6] [2015] FamCAFC 111.
7. [7] Giannarelli v Wraith (1988) 165 CLR 543, per Mason CJ at 555.
8. [8] "Lawyers' Duties to the Court" (1998) 114 LQR 63.
9. [9] Giannerelli v Wraith (supra) at 556.
10. [10] Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149 at [122].
11. [11] Pursuant to s 456(2)(d)(i) of the LPA.