The decision of Legal Services Commissioner v Trost  QCAT 357, is a concise summary of the law surrounding unilateral communication with the Court. The President of QCAT, Justice Daubney was called upon to decide whether three emails sent by Mr Trost were matters of substance and whether the act of cc’ing the opponent into the correspondence resolved any non-compliance.
By way of background, the solicitor was acting for a defendant in proceedings in the Supreme Court of New South Wales. An application for security of costs came on for hearing before Harrison AsJ in the Court on 29 March 2013. After hearing argument, Her Honour reserved her decision.
Following the hearing, Counsel for the Plaintiff sent an email to Her Honour’s Associate attaching a decision, referred to in the course of argument. This saw Mr Trost, respond with a series of three emails.
Legal Services Commission Complaint
There was a complaint by the Legal Services Commission that this communication was contrary to the Legal Profession (Solicitors) Rule 2007. In particular the prohibition against unilateral communication with the Court.
18.6 A solicitor must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:Rule 18.6 of the Legal Profession (Solicitors) Rule 2007
- 18.6.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or
- 18.6.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.
Mr Trost, a lawyer with 6 months commercial law experience, sent three (3) emails to Her Honour Judge Harrison’s Associate.
- The first was drafted by Counsel and was sent at the direction of the Senior Principal of the firm The email sought to provide some closing submissions and extracts of the more relevant cases that had been referred to;
- The second was sent following an email from Counsel, providing the text of what was to be sent, together with attachments. Again it was sent following a discussion with the Senior Principal; and
- The third was sent at the direction of the Senior Principal. The email provided notice that the Plaintiff company had been placed into liquidation.;
All emails were sent in response to an initial email from opposing counsel enclosing an authority that had been referred to during the hearing.
CC’ing the Opponent
Trost did not give notice, nor seek consent for the emails to be sent. He argued  that because he cc’d the opposing solicitors into the emails he did not communicate in the absence of, the opponent.
The tribunal rejected this argument at  holding that the act of sending an email is not rendered bilateral by the simple expedient of copying it to the opponent. The President held:
Even in the contemporary age of instantaneous communication, this Tribunal does not accept that the purpose to which the rule is directed can be met by nothing more than “cc-ing” the opponent. If that was so, it would open the gate for all manner of otherwise improper or inappropriate communications to a judge to be justified by the simple expedient of sending a copy to the opponent.
Counsel for Trost argued that the other side had started this conduct with the email of 29 March 2012, that the respondent was “only responding” to that email, and that it can be “fairly assumed that the respondent had the implied consent of his opponent for all three emails”. This was rejected by Daubney.
Trost was found to have contravened rule 18.6 in relation to two of the three emails that were sent. The question became whether the conduct was professional misconduct or unsatisfactory professional conduct. Ultimately, Daubney J held that the conduct was a significant departure from competent professional conduct and made a finding of unsatisfactory professional conduct.
This decision is a timely reminder for all solicitors to ensure that we are not communicating with the Court without the consent of the other party. CC’ing them is not sufficient. It is also clear that even for young practitioners a familiarity with the Legal Profession (Solicitors) Rule 2007 is essential.
All lawyers need to be cognisant that we must not communicate with the Court without the consent of the opposing party.
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