Solicitor disciplined over failure to obtain opponent’s consent for court communication

The Legal Practice Committee has found a practitioner guilty of unsatisfactory professional conduct in Legal Services Commissioner v Rosen LPC 01/2020.

It found that the respondent had “communicated in an opponent’s absence, and without their consent, with the Court concerning a matter of substance in connection with current proceedings, in contravention of rule 22.5 of the Australian Solicitors Conduct Rules”.(ASCR)1

The respondent had acted for a client in family law proceedings, where the decision was reserved. The respondent sent an email to the judge’s associate “…alleging his opponent had failed to disclose a bank account in the proceedings. Further, the Respondent advised of his intention to reopen the proceedings as a result.”2

The respondent had not forewarned the opponent, and did not seek consent to send the email, but the opponent’s solicitor was copied into the email.

The opponent’s solicitor promptly advised the respondent that the assertion in relation to the bank account was incorrect and requested the email be remedied. The following day, the respondent replied to the opponent’s solicitor, noting that he had taken further instructions and was of the view that no proper grounds existed for an application to reopen proceedings. The respondent did not take any steps to advise the judge’s associate “…that the assertion regarding the bank account was in error, thus necessitating the opponent’s solicitor to do so”.3

Issues

The committee considered whether the conduct amounted to unsatisfactory professional conduct due to a breach of the ASCR Rule 22.5, and the appropriate penalty in the circumstances.

Issues considered

As outlined in the decision, “the Respondent raised in oral submissions that it is common practice for practitioners to communicate with the Associates of the Judges of the Federal Court by copying in the opposing practitioner/party without having sought the consent of that party prior to the communication being sent”.4 The committee did not accept “…the validity of that submission as an explanation for non-compliance with Rule 22.5 ASCR”.5

The respondent also raised “…that the conduct of the opposing spouse had influenced his decision not to rectify the breach”.6 The committee did not accept that the conduct of the opposing party lessened the ethical obligations of the respondent.

In finding that the conduct amounted to unsatisfactory professional conduct, the committee said that:

“The email communication contained information which was incorrect and potentially damaging about the opponent in circumstances where it had the potential to impact on the Judge’s assessment of the opponent’s credit. The Respondent made no attempt to obtain the consent of the opponent before the communication was sent. The Respondent failed to retract the incorrect information with the court despite the insistence of the opponent’s solicitor in circumstances where he could easily have done so. The respondent has not apologised to the court, the opponent or the opponent’s solicitor.”7

In considering the appropriate penalty in the circumstances, the committee was mindful of the objective of deterrence to the respondent and other practitioners from engaging in similar conduct. The respondent had previously been the subject to a finding of unsatisfactory conduct in 2015, and professional misconduct in 2016. As such, the committee noted a need for personal deterrence.8

The committee took into consideration that the respondent had co-operated with the Legal Services Commission in its investigation and pursuit of the matter, but also noted the respondent’s unwillingness to rectify the breach.9 The committee further noted that the respondent had “…breached his ethical obligations notwithstanding undertaking the Queensland Law Society Legal Ethics course…”10

Ultimately, the committee ordered the respondent to be publicly reprimanded, pay a fine of $3500, undertake the QLS Legal Ethics Course again, and pay the applicant’s costs. The committee further ordered that the decision was to be published on the Disciplinary Register of the Legal Services Commission website.

Lauren Bicknell prepared this article while working as a law graduate in the Queensland Law Society Ethics and Practice Centre. It has been approved by Grace van Baarle, Manager and Ethics Solicitor, QLS Ethics and Practice Centre.

Footnotes
1 Services Commissioner v Rosen LPC 01/2020 (14 October 2020) 1 (Rosen).
2 Ibid 2.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid 3.
7 Ibid.
8 Ibid.
9 Ibid.
10 Ibid.

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