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Lawyer wins bid to stay in practice

A Brisbane lawyer has had a Queensland Law Society (QLS) decision to refuse him a practising certificate overturned on appeal.

In May 2021, QLS found formerly bankrupt lawyer John Maximus Merlo was not a fit and proper person to hold a practising certificate, citing allegations he “phoenixed” his firm, and used a bow and arrow at a school.

Last month in the Queensland Civil and Administrative Tribunal, Member Lyons KC found QLS came to the wrong decision after the matter was heard in July and August last year.

On 25 May 2020, Merlo applied for an unrestricted employee practising certificate and declared suitability matters. On 29 September that year, he applied for an principal practising certificate and declared suitability matters

On 17 May 2021, QLS found Merlo was not a fit and proper person to hold either under Section 51(5) of the Legal Profession Act 2007 (Qld).

In making its decision, the Society considered an incident in 2017, where it was alleged Mr Merlo had fired an arrow across a school oval and an adjoining road, drawing the attention of police.

Mr Merlo denied he had fired an arrow and was instead “setting up the optical sighting components”.

A lack of contrary evidence had Member Lyons not satisfied Mr Merlo was firing arrows.

QLS also alleged Mr Merlo was involved in phoenixing his firm, Merlo Law, into another company JMMLBW, for $4500, just before a liquidator was appointed.

The 2018 sale left creditors about $500,000 out of pocket, which QLS said was “a matter of concern about the applicant’s financial trustworthiness”. Mr Merlo denied he had arranged for the transfer just before a liquidator was appointed.

Member Lyons found the allegation was not made out.

QLS also argued Mr Merlo failed to notify QLS of a conviction, as required of a certificate holder under the Act.

On the day Mr Merlo was convicted on trespass in March 2019, he had emailed QLS to give notice, but had not used the required Form 6. He submitted to QCAT that this matter was one of form rather than substance, and Member Lyons agreed, stating that in the context of a question of a fitness to practise, it was of no significance.

Member Lyons ordered the QLS decision to refuse renewal of a practising certificate be set aside, and substituted with a decision that Mr Merlo be granted a principal level practising certificate subject to the usual statutory conditions.

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