LSJ February 2020

Legal updates PRACTICE AND PROCEDURE

I hope this email finds you well (aware of your obligations under the Rules)

Angus Macinnis is Director of Dispute Resolution at StevensVuaran Lawyers.

I n the February 2008 edition of the Australian Law Journal , one of the ‘Current Issues’ identified by the Editor, Mr Justice Young AO, was encapsulated in a note entitled ‘Don’t ring the judge’. That note (the substance of which was adroitly captured by its ti- tle) included the wise counsel that ‘axi- omatically, no solicitor should go any- where near the judge even by telephone without the consent of the opponent’. This counsel is supported by more than mere axiom; for solicitors in NSW, it has the force of law as a consequence of rule 22.5 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (the ‘ ASCR ’). Today, ‘Don’t email the judge’ would be the more exact title. Despite a number of judgments and other forms of guidance to the profession (see, e.g. Cousten and St George, ‘Informal communications with judges’ chambers: a professional and risk management issue’ 23 Law Society of

The facts The Solicitor, who was employed by a Brisbane law firm, was acting for the defendant in proceedings in the Supreme Court of New South Wales. Following a hearing on an application for security for costs which took place on 29 March 2012, the Solicitor sent three emails to the Associate to Harrison AsJ, being: i. an email sent on 30 March 2012, which proposed that the Court be provided with some ‘concise closing submissions’, and sought the Court’s approval of that course; ii. an email sent on 4 April 2012, (follow- ing advice from the Associate that ‘her Honour declines’ the request to file additional submissions) attaching a number of authorities; and iii. an email sent on 20 April 2012, advis- ing the Co urt that the plaintiff in the proceedings (that is, the client of the Solicitor’s opponent) had been placed in liquidation.

• Rule 22.5 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules (concerning communication with the Court in the opponent’s absence) applies to email communications. • Email communications do not cease to be ‘in the opponent’s absence’ merely by being copied to the opponent when they are sent to the Court. • The rule requiring an opponent’s consent to be obtained before any communication with the Court is an incident of the

paramount duty to the administration of justice, and is capable of carrying professional disciplinary consequences if not observed.

Each of these emails was copied to the Solicitor’s opponent when it was sent, but consent was not sought for any of them. The Solicitor’s opponent objected to the Solicitor’s conduct by responding to the 30 March 2012 and 4 April 2012 emails advising the Court that the opponent had not been given any advance notice that the emails were to be sent, and had accordingly not consented to email contact being made with the Court. The relevant professional conduct rules (and their legal effect) At the relevant time, the applicable Queensland rule was rule 18.6 of the Legal Profession (Solicitors) Rule 2007 (Qld), which is in identical terms to rule 22.5 of the ASCR currently appli- cable in New South Wales: ‘18.6 A solicitor must not, outside an ex parte application or a hearing of which the opponent has had proper notice, commu-

NSW Journal, June 2016, 75), anecdotal evidence suggests that rule 22.5 would have reasonable claims to be the provision of the ASCR most often honoured in the breach rather than in the observance. Compliance with the ASCR is, of course, not simply a matter of professional courtesy; non-compliance is capable of amounting to unsatisfactory professional conduct or professional miscon- duct. A recent decision of the Queensland Civil and Admin- istrative Tribunal (‘ QCAT ’) provides a case in point. In Legal Services Commissioner v Trost [2019] QCAT 357 (9 December 2019), a QCAT panel of which the QCAT President, Daubney J, was the presiding member, made two findings of unsatisfacto- ry professional conduct against a solicitor (‘ the Solicitor ’) who had communicated with the Court without his opponent’s con- sent. The decision provides useful guidance in relation to rule 22.5 and the role of professional conduct rules more generally.

82 LSJ I ISSUE 63 I FEBRUARY 2020

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