- 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.
In 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 title) included the wise counsel that ‘axiomatically, no solicitor should go anywhere near the judge even by telephone without the consent of the opponent’. This counsel is supported by more than mere axiom; for solicitors in New South Wales, 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 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 misconduct. A recent decision of the Queensland Civil and Administrative Tribunal (‘QCAT’) provides a case in point. In Legal Services Commissioner v Trost  QCAT 357 (9 December 2019), a QCAT panel of which the QCAT President, Daubney J, was the presiding member, made two findings of unsatisfactory professional conduct against a solicitor (‘the Solicitor’) who had communicated with the Court without his opponent’s consent. The decision provides useful guidance in relation to rule 22.5 and the role of professional conduct rules more generally.