Incompetence as ‘unsatisfactory professional conduct’

A barrister in NSW is being prosecuted for being incompetent in the presentation of a criminal appeal: Council of the NSW Bar Association v DCF [2010] NSWADT 291.  The incompetence of his written submissions are said to amount to unsatisfactory professional conduct.  Section  496 of the Legal Profession Act, 2004 (NSW) says that unsatisfactory professional conduct includes:

‘conduct of an Australian legal practitioner occurring 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’.

The barrister admits that his submissions were incompetent, but denies any lack of diligence.  His application for summary dismissal of the charge on the basis that unsatisafactory professional conduct requires both incompetence and a lack of diligence failed.  Either incompetence or a lack of diligence alone may warrant discipline.

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