Queensland bar … Shortcomings fixed by lashings more bar readership … Professional misconduct where barrister persisted with appeal submissions that had no basis in fact … Inexperience … Promises not to practice family law again … Penny dropped late in the process … Out comes the damp lettuce leaf … Ghost of Rose Mary Wood
At the time, Ms Merkin was at the Queensland bar n’ grill with a practice in family law.
The Legal Services Commissioner charged her with three breaches of two barristers’ rules.
In 2017, there was an attempt by Merkin to have the disciplinary proceeding struck out on the ground it was “infected with jurisdictional error, is a nullity and ought to be dismissed”.
The allegation she unsuccessfully put to Hon. J.B. Thomas was that the commissioner had not complied with requirements to keep a record of any decision about the complaint and to send it to her.
Two charges related to Merkin’s conduct in 2013 before the Full Family Court in a case cited as Carpenter & Carpenter – an appeal against parenting orders made by Justice Peter Murphy where she appeared for the mother.
Merkin and her client got in into their heads that a “particular incident” did not appear in the written transcript of the hearing before Justice Murphy. When the client checked the audio recording it was discovered that the transcript was accurate – i.e. there was no audio evidence of this mysterious “particular incident”.
Nonetheless the client, with input from Ms Merkin, included an allegation in the appeal that the transcript was incomplete, “edited and/or amended before final transcription by the official transcribers”.
On September 18, 2013 an amended summary of argument, settled by the barrister, was filed for the appeal. Ground 9 said:
“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.”
She told the Full Family Court that she knew there was no evidence to support this ground of appeal, but persisted with it anyway. She even told the judges:
“This appeal court is in a position to ask the attorney general to intervene and look at this.”
Squarely she was suggesting that Murphy may have been involved with some form of tampering.
She told the Legal Services Commissioner that she was a “whistle-blower”. To the tribunal she said there had been silence about the issue of transcripts being edited.
“… 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.”
This was despite the fact that she admitted that at the time she settled the summary of argument she knew that the audio recording and the written transcription matched.
It was only during her closing submission to the tribunal that she recanted.
“She accepted that she had failed to apply appropriate judgment about the level of evidence necessary to sustain such a serious allegation.”
There was remorse and apologies. She was not suited to practice family law and “recognised it was beyond her level of competence and experience as a newly admitted barrister”.
Maybe she imagined that Richard M. Nixon’s secretary, Rose Mary Wood, was in charge on the Family Court tapes and “inadvertently” deleted a chunk of dialogue by hitting the record button instead of the play button at the crucial moment.
The other charge related to events in 2015, again for a mother in a parenting appeal, in a case called Kamano & Kamano.
Here Merkin claimed that Justice Margaret Cleary had presented a talk at the Sixth World Congress on Family Law and Children’s Rights and that her orders reflected the views she presented in her paper rather than the evidence before the court.
She persisted with this ground in the appeal even though she was unable to explain how it could be supported and could not identify any part of the judge’s reasons or orders which showed the trial judge had acted on her own research.
The full court judgment found that Merkin’s submission was “fanciful” and “raises serious concerns” about her conduct in suggesting actual bias by pre-judgment.
Once again, “the penny seemed to drop” in her closing submission when she apologised, she had been mistaken, she didn’t intend to bring disrepute on the profession, etc.
Justice Daubney, assisted by Thomas Bradley and Keith Revell, said this all amounted to professional misconduct. She hasn’t renewed her ticket since 2016, and now says she will not again practice family law.
One senior brief volunteered to be her mentor, solicitors rallied around and said she was a good egg. One client spoke up for her as well.
It boiled down to a reprimand, a further period of readership for 12 months if she reapplies for a ticket, and costs.
Over and out.