Communicating with the Court – Solicitors’ Responsibilities

A recent Legal Services Commission (“LSC”) case has highlighted the consequences for practitioners who communicate with judges without the prior consent of opposing parties. In a recent hearing before the Queensland Civil and Administrative Appeals Tribunal, the solicitor in question was charged with and found to have engaged in 3 counts of unsatisfactory professional conduct.

In that matter, there were proceedings before the New South Wales Supreme Court which had proceeded to hearing with no orders or directions made for the parties to make further submissions. The 3 charges of unsatisfactory professional conduct related to three emails sent by the solicitor to the judge’s associate following the hearing which detailed further arguments that had been referred to in oral submissions by counsel. He copied the opposing solicitor into those emails albeit, the emails were sent without the prior consent of the opposing solicitor. 

After the first email was sent, the opposing solicitor sent an email in response making clear that no prior consent or notice was provided before the communication was sent to the court and opposing any directions being made for the provision of further submissions. The judge’s associate emailed both parties and made clear that the judge would not accept any further submissions.

Despite this, the solicitor proceeded to send a further email to the judge’s associate wherein he made reference to extracts of cases and other written materials that had been referred to by counsel in oral submissions. Again, the opposing solicitor sent an email making clear that no prior consent or notice was provided before the communication was sent.

The third email sent by the solicitor (that was subject to charge 3) was some two weeks later, wherein he provided an update to the judge about further developments in the matter.

The conduct complained of occurred in 2012 when the Legal Profession Act 2007 was still in-force. Rule 18.6 of that Act was the rule alleged to have been contravened. Rule 22.5 of the Australian Solicitors Conduct Rules (that came into force only 2 months after these events) is the equivalent rule.

Rules 22.5 of the ASCR states:

22.5 A solicitor must not, outside an ex parte application or a hearing of which an 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:

22.5.1 the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or

22.5.2 the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

In his defence, the solicitor argued that his copying the opponent solicitor into the emails did not breach the Rules. QCAT disagreed.

QCAT were of the view that merely copying parties into electronic communication does not amount to compliance with the Rules. Communication with the judiciary must only be done with the prior consent and knowledge of the other party (unless exceptions apply). 

The importance of the court maintaining independence and impartiality with respect to matters it is adjudicating was discussed and paragraph 41 of the judgment in particular explained this as follows:

[41] It is fundamental to the maintenance of the rule of law and the proper administration of justice that a judge is, and is able to be seen to be, impartial and independent of the parties whose dispute is the subject of adjudication. It is an incident of every legal practitioner’s paramount duty to the administration of justice to ensure that the actuality and appearance of this judicial independence is preserved and, equally, to avoid any conduct which might have the effect of causing that independence to be questioned.

In a world of instantaneous email communication, it is easy to send quick correspondence to chambers when need be. In time-pressure situations, it is also easy to do this without having regard to Rule 22.5 of the ASCR.

So the next time you consider a need to email the court, don’t even think about it until you have discussed same with the other party and obtained their consent to do so. 

There very limited exceptions to this rule, such as:

  1. Any ex parte urgent proceedings if the other party has been given reasonable notice of same.
  2. If the court has first contacted you and requested a response.