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Qld lawyer reprimanded for communication with court without opponent’s consent
A solicitor working for a Brisbane-based firm has been reprimanded and ordered to pay costs following a 2019 finding of unsatisfactory professional conduct.
Jerome Doraisamy
In December of last year, Benjamin Che Trost was alleged by the Queensland Legal Services Commissioner – while he was working for Brisbane firm Cleary Hoare – to have entered into communications with a judge’s associate in proceedings without the consent or knowledge of opposing legal counsel.
On two of the three charges brought, he was found to have engaged in unsatisfactory professional conduct. The third charge was dismissed.
In arguing against charges that he had communicated in his opponent’s absence, and without his opponent’s consent, with the court concerning a matter of substance connected to ongoing proceedings, Mr Trost argued that by copying his opponent into the email correspondence, he had not breached professional conduct rules.
This, however, was rejected by QCAT, which held that “even in the contemporary age of the instantaneous communication”, simply “cc-ing” an opponent does not meet the standard expected by the rules.
“Indeed, the invocation of modern instantaneous communication in this context is a red herring. The act of sending an email is not rendered bilateral by the simple expedient of simultaneously copying it to the opponent,” QCAT determined.
“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.”
In holding that Mr Trost should be reprimanded, QCAT mused that the charges brought against him were “serious matters”, and that lawyers must understand that a breach of professional conduct rules in such a manner “is not merely a technical default but goes to one of their fundamental professional obligations”.
It also took into account certain mitigating factors, including but not limited to: his insight and remorse, the fact that the conduct took place when Mr Trost was a junior solicitor more than eight years ago and that his career has subsequently “been blemish-free”.
Mr Trost was also ordered to pay LSC’s costs.
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly and HR Leader. He has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. In June 2024, he also assumed the editorship of HR Leader. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of the Minds Count Foundation.
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