A Queensland barrister who appeared in various courts without holding a practising certificate (PC) is to be struck off the roll.
David Philip Henry Edwards, 75, faced four charges from the Legal Services Commissioner (LSC) over conduct between 2013 and 2022, and on Friday he was deemed no longer a fit and proper person to engage in legal practice.
In his 15-page Queensland Civil and Administrative Tribunal decision, Judicial Member McMeekin KC recommended Mr Edwards’ name be removed from the local roll, and that he be publicly reprimanded.
Charge 1 alleged that between July 2022 and November 2022, the barrister engaged in legal practice when not entitled to.
Charge 2 alleged that between April 2013 and July 2020, he accepted a direct brief from people who were not solicitors, and failed to inform them of matters as required by the Barristers’ Conduct Rules.
Charge 3 alleged that in April 2013 he failed to discharge his retainer with the degree of skill and care expected of a reasonably competent barrister in relation to preparing a Statement of Claim for those clients.
Charge 4 alleged that between April 2013 and July 2020, by failing to return his brief in the matter directly briefed, he breached the Barristers’ Conduct Rules.
Mr Edwards and the LSC agreed that the conduct set out in charges 1 and 4 should be characterised as professional misconduct, and the conduct set out in charges 2 and 3 as unsatisfactory professional conduct.
The parties disputed the disciplinary orders that should be made, with the LSC submitting that Mr Edwards’ name be recommended for removal from the roll, and Mr Edward submitting that he be publicly reprimanded.
In relation to charge 1, Mr Edwards, a bankrupt, applied to renew his PC without a required letter from his trustee in bankruptcy. He was advised by the Bar Association that his PC would expire on 30 June 2022 and he was prohibited from practising from 1 July 2022.
Over the next four months, Mr Edwards made six appearances in the Federal Circuit and Family Court of Australia, Ipswich District Court, Ipswich Magistrates Court and Southport Magistrates Court, across various matters from various clients, purporting to be entitled to appear.
The Bar Association had contacted Mr Edwards about his inability to practise and his PC renewal in July 2022, and he had withdrawn his application in October.
Member McMeekin said that to “dishonestly represent to any court that one is entitled to appear as a barrister is a serious departure from the law, no matter the circumstances”.
“To do so repeatedly involves flouting the relevant law. And, to do so repeatedly after communicating to the Bar Association on 20 July acknowledging his inability to practise, and on 5 October of an intention to withdraw the application for a certificate, provides considerable insight into Mr Edwards’ attitude to his responsibilities,” he said.
In relation to charge 4, Mr Edwards’ lack of preparedness in dealing with the direct brief led to a referral to the LSC.
“Mr Edwards’ apparent ignorance included his clients’ disclosure obligations and the effect of failing to comply, expert evidence rules, the inadmissibility of the documents he sought to tender, and the means by which he could tender documents potentially relevant into evidence,” Member McMeekin said.
“This ignorance coupled with the apparent failure to even identify the relevant issues involved in the matter all resulted in his clients’ case not being presented as it should have been.
“The utility of a divided profession and the dangers in a direct brief are well recognised. The facts here demonstrate those dangers.”
Member McMeekin ordered a public reprimand for charges 2 and 3.
Mr Edwards – who was admitted as a solicitor in NSW in 1977, and as a barrister on Queensland in 2003 – had held a barrister practising certificate from their introduction in 2005 until 2022, except for two months.
In his submission on sanction, he pointed to factors including him having no intention to practise again, his self-reporting to the LSC, that he did not act for profit, and his good standing as a long-time practitioner.
Member McMeekin said Mr Edwards “claiming the right to appear in the courts before whom he appeared and with any practitioners whom he appeared against is a fundamental dishonesty”.
He said despite the barrister’s repeated expressions of contrition and regret, “his submissions do not reflect the gravity of his misconduct nor show much insight into his quite extraordinary level of incompetence”.
He said the conduct the subject of charges 2 and 3 indicated “at least, a shambolic, disorganised approach to his practice”.
“The pleading of the Statement of Claim was simply embarrassingly inadequate,” he said.
“Mr Edwards appeared on six occasions without a practising certificate and, startlingly so, Mr Edwards consistently appeared despite communicating with the Bar Association about his lack of holding a certificate.”
Member McMeekin said there was no good reason shown that Mr Edwards was fit to be a legal practitioner.
“He repeatedly betrayed the trust given to him. He did not demonstrate skill or competence in his practise of the law,” he said.
“The principal plea Mr Edwards advances is one of mercy given his position at the end of his legal career. That plea reflects the effect on him of an order to remove him from the roll. But our task here is to protect the public, not Mr Edwards.”
He said a different approach would be justified if Mr Edwards was a young, inexperienced practitioner.
“For a practitioner of 45 years’ standing to deliberately flout the law, as was involved in charge 1, is both inexplicable and inexcusable,” Member McMeekin said.
“How can it be but that his character is to be indelibly marked by his misconduct?
“As well, to pretend that a practitioner so incompetent as his conduct displays is fit to be a legal practitioner would be to seriously mislead the public. The approach he urges is contrary to our responsibility to maintain the standing of the profession.”
Mr Edwards was also ordered to pay costs.
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