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Unethical or incompetent – does it matter?

Unethical or incompetent – does it matter?

By Gino Dal Pont

Ethics 


There is a qualitative difference between conduct that is ‘unethical’ and conduct that is ‘incompetent’. Practitioners will be aware of the statutory definitions of professional misconduct and unsatisfactory professional conduct, which nowadays are uniform across Australia. In its statutory sense, “professional misconduct” is defined to include, inter alia, inclusively by reference to two limbs: conduct that would justify a finding that the lawyer is not a fit and proper person to engage in legal practice; and unsatisfactory professional conduct that involves “a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence”. “Unsatisfactory professional conduct” targets a lawyer’s conduct 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 lawyer”.

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