Legal Services Commissioner v Trost

[4] The respondent relied upon an affidavit by him sworn on 17 January 2020.

[5] He described the heavily contested nature of the litigation in which the subject emails were written.

[6] He says that the first email (the subject of the charge which was dismissed) was written on the urging of counsel and after a discussion with the Senior Principal of the firm for which the respondent worked at the time. He says the Senior Principal told him to do what the barrister had asked, but to 'make sure you copy in Tucker & Cowen' (i.e. the opposing law firm in the litigation).

[7] In his affidavit, the respondent acknowledges that Tucker & Cowen protested the sending of the first email and the Judge ultimately declined the request to make further submissions.

[8] The respondent says that some days later he received an email from counsel, which provided the text of an email for the respondent to send to the Judge's Associate together with attachments. He discussed this with the Senior Principal who told him to send the email, but to again make sure he copied it to Tucker & Cowen.

[9] As to the third email to the Judge's Associate, the respondent says that the company in question was put into liquidation on 20 April 2012, and the Senior Principal of his firm told him to stop whatever he was doing and send an email to the Judge's Associate to advise of the liquidation, which he then did. He then says:

20. I acknowledge that, irrespective of whether I was directed, authorised or encouraged to send the communication by more senior practitioners, such does not excuse my conduct.

21. However, and whilst I held an unrestricted practising certificate at the time of the communications, I was a relatively junior lawyer in terms of post admission experience and had only been practising litigation full time for about six months.

22. I trusted [the Senior Principal's] and [counsel's] judgement that what I was doing was not inappropriate.

[10] The respondent than deposes to matters which he contends demonstrate his insight:

• (a) His co-operation with the applicant, including the opportunity to make submissions, in the course of which the respondent came to the conclusion that he had acted inappropriately and had no intention of repeating the conduct;
• (b) The terms of a submission by his firm to the applicant in November 2012 in which he:

  • (i) Acknowledged the seriousness of the relevant rule and its basis;

  • (ii) Assured the applicant and the profession that the conduct would not be repeated;

  • (iii) Acknowledged he should have adopted a more careful approach in communicating with the Court;

  • (iv) Expressed remorse for his conduct; and

  • (v) Offered to undertake an ethics course.

[11] The respondent continues to hold a principal practising certificate, and acts as a consultant to several law firms. He has deferred completion of the practice management course.

[12] He says that this proceeding has significantly affected the progression of his career and opportunities for advancement. He remained with his old firm until mid-2017, by which time relations between him and the Senior Principal had broken down. The pendency of these charges, and the firm's reluctance to provide financial support for the respondent to contest the charges, were significant factors in that breakdown.

[13] The respondent deposes that the bringing of these charges against him has resulted in a significant diminution in his earnings, and has caused him significant stress and mental trauma, which has resulted in him accessing the services of mental health professionals via LawCare.

[14] Counsel for the respondent outlined these circumstances,[2] and submitted that, whilst they do not excuse the respondent's conduct, they are mitigating factors which need to be taken into account in assessing the appropriate sanction.

[15] It was argued that neither a public nor a private reprimand need be imposed in the present case, given:

• (a) The respondent's insight and remorse;

• (b) The fact that the operation of r 18.6 of the Legal Profession (Solicitors) Rule 2007, which itself operates as a constraint on lawyers' conduct, has clearly been explained in the primary decision;

• (c) The conduct occurred more than eight years ago, when the respondent was a very junior lawyer and had been practising in litigation for only six months;

• (d) He had been counselled to engage in the conduct by more senior practitioners;

• (e) His career since the subject incidents has been blemish-free.

[16] Counsel for the respondent also urged this Tribunal to have regard to the effect of this disciplinary proceeding on the respondent's career and his state of mental health.

[17] The applicant argued that the Tribunal should order a public reprimand, based on Charges 2 and 3 having been substantiated and the approach of the respondent to the hearing. The applicant contended that the submissions of November 2012 did not demonstrate genuine remorse or insight, because the respondent challenged the charges at the time and submitted that no breach occurred. The applicant also referred to a statutory declaration dated 19 July 2019 made by the respondent in support of his application to defer completion of the practice management course, in which he referred to the present proceeding and again denied the charges.

[18] In this disciplinary jurisdiction, orders are shaped in the interests of the protection of the community from unsuitable practitioners, and in determining what orders should be made 'regard should primarily be had to the protection of the public under the maintenance of proper professional standards'.[3]

[19] In the circumstances of the present case, the following observations by Thomas J in LSC v Bentley[4] are apposite:

[48] Another aspect of protection of the public is the maintenance of standards within the legal profession. If conduct is identified as being unsatisfactory professional conduct or professional misconduct, one of the aims of any sanction is to dissuade other practitioners from such conduct - essentially to warn practitioners that such conduct is not acceptable.

[49] That aim is best achieved by a public reprimand.

[20] In NSW Bar Association v Sahade (No 3),[5] the New South Wales Tribunal addressed the use of public and private reprimands:

[128] A difference between a 'public reprimand' and a 'private reprimand' is that the former, being published, can act as a warning to others not to offend in a similar way. A reprimand that remains private can really act only as a personal deterrent. Therefore, in the case of a legal practitioner who himself requires no deterrence, one factor that might determine whether a reprimand should be public would be whether there is any reasonable possibility that one or more other legal practitioners might act in the same way as the legal practitioner under consideration. If there is no such likelihood, one reason for imposing a public reprimand would be absent.

[21] Whilst the respondent now presents before the Tribunal as a remorseful person with insight into his misconduct, that is only a recent development in the course of this proceeding. Indeed, up to and during the principal hearing, the respondent, by his counsel, strenuously opposed any finding that the respondent had engaged in any sort of misconduct, and took every possible point in the case. The respondent was, of course, entitled to put the applicant to proof, and to take the points he did. But none of the arguments he advanced at the principal hearing could be seen as expressive of insight, remorse, or contrition. As was noted in the principal reasons,[6] the respondent at the time of that hearing had demonstrated no insight into the offending conduct, nor had he offered any explanation or justification for the conduct. Only now, on the sanction hearing, has he sought to claim insight into his conduct, and the seriousness of his failure in this instance to observe the requirements of r 18.6. He has now expressed remorse and has demonstrated a readiness not to repeat this conduct. Late though the expression of insight and remorse may be, it nevertheless militates to some degree against the need for a reprimand to act by way of personal deterrence for the respondent. The Tribunal is also cognisant of the other mitigating factors, including the delay in finalising the proceeding and the effects of the ongoing pendency of this proceeding on the respondent's career and mental health.

[22] But imposition of a sanction in the present case is not just about the respondent. For the reasons canvassed at length in the principal reasons, the impugned conduct in this case went to fundamental professional obligations. The prescription in r 18.6 is directed to preservation of a judicial officer's independence and 'it is an incident of every legal practitioner's paramount duty to the administration of justice to ensure that the actuality and appearance of judicial independence is preserved and, equally, to avoid any conduct which might have the effect of causing that independence to be questioned'.[7]

[23] These are serious matters, and members of the profession need to understand that a breach of this rule is not merely a technical default but goes to one of their fundamental professional obligations. It also needs to be understood that a breach of this rule is and will be treated seriously, and carries serious consequences.

[24] Accordingly, this Tribunal is of the view that it is appropriate to order that the respondent be publicly reprimanded.

[25] By s 462(1) of the LPA, this Tribunal, having found that the respondent engaged in unsatisfactory professional conduct, must order him to pay the costs of the discipline application unless the Tribunal is satisfied that exceptional circumstances exist.

[26] Counsel for the respondent advanced a number of arguments.

[27] First, it was contended that because Charge 1 had been dismissed, the costs associated with that charge ought to be excluded from any costs order. That proposition cannot be accepted. The authorities are clear that the mere fact that a charge fails cannot constitute 'exceptional circumstances', and the statutory requirement under s 462(1) to pay costs requires a respondent to pay all the costs of a discipline application unless such circumstances are shown to exist. In that regard, it is sufficient to refer to the following observations about the cognate predecessor of s 462(1) by McPherson JA in Baker v Legal Services Commissioner:[8]

[56] In my view, however, the criterion adopted in s 286(1) is whether the practitioner has been found guilty of one or more of the forms of misconduct specified in s 286(7). If he has, then an order requiring him to pay costs must be made against him unless the Tribunal is satisfied that "exceptional circumstances" exist. It is true that s 286(1) refers simply to "costs" and not to all the costs of the proceedings; but the latter is I consider its primary meaning in this context. Section 286(1) is not designed to confer or preserve the broad discretion over costs commonly found in statutory provisions conferring power to award costs. If it had been intended to do so, it could and would have been expressed to that effect. On the contrary, the mandatory rule imposed by s 286(1) is designed to follow unless the Tribunal is satisfied that exceptional circumstances exist that call for some other order to be made, either generally or in terms of an amount under s 286(5)(a) or (b) or against the Commissioner under s 286(4).

[57] The present was not such a case. Even though he succeeded in some of the charges against him, the practitioner was found guilty of some seven charges that resulted in the ultimate sanction being imposed upon him of removal from the roll. No exceptional circumstances existed to defeat the mandatory requirement imposed by s 286(1) that he pay the costs including those of the Commissioner. That being so, the Tribunal was required to make the order that was made in this matter. In any event, if his Honour had discretion, it was or would have been appropriately exercised by making the order he did.

(emphasis added)

[28] Secondly, counsel for the respondent argued that exceptional circumstances arose from the fact that, in its investigation, and notwithstanding that the matter involved a proceeding in New South Wales, the applicant did not consider whether there were issues of jurisdiction in its investigative report. Reference was made to the decision of Thomas J in an earlier interlocutory hearing to determine the jurisdictional point then being ventilated by the respondent,[9] in which his Honour considered it unnecessary at that point to make a finding about the respondent's physical location when he sent the emails. Following that hearing, the applicant then sought and obtained the consent of the New South Wales Legal Services Commissioner. The respondent contends that the applicant ought not have its costs prior to 12 September 2017, when the applicant obtained evidence that the server from which the emails were sent was in Brisbane, or alternatively prior to 6 November 2017 when the consent of the New South Wales Legal Services Commissioner was obtained.

[29] These arguments cannot be accepted:

• (a) This Tribunal determined the jurisdictional objection raised by the respondent on the basis that the physical location of the server was sufficient to confer jurisdiction. It was necessary for the applicant to obtain evidence of the physical location of the server because the respondent had raised this as one of several jurisdictional objections. The fact that the applicant put on evidence to successfully meet one of those objections does not constitute an exceptional circumstance;

• (b) For the reasons given in the principal decision, it was not necessary to consider the alternative argument about the lack of consent of the New South Wales Legal Services Commissioner, and accordingly this does not found an 'exceptional circumstance' argument; and

• (c) In any event, for the reasons stated above, 'costs' in s 462(1) means all the costs of the discipline application.

[30] Finally, the respondent sought his costs of an interlocutory hearing on 15 November 2017, at which the applicant was ordered to provide further and better particulars. In fact, what was ordered on that day was only part of a much wider-ranging application which had been filed by the respondent. Ultimately, only some of the particulars sought by the respondent were ordered to be provided, so at best the respondent was only successful in part. The costs of that application were reserved and, as is conventional, ought to follow the outcome in the principal proceeding. In any event, the LPA would permit an order for payment of those costs to the respondent only if there had been no finding of unsatisfactory professional conduct and 'special circumstances' warranting the making of such an order had been demonstrated.[10]

[31] Accordingly, there are no 'exceptional circumstances', and therefore no reason why the mandate of s 462(1) ought not apply in this case.

[32] For these reasons, the Tribunal orders that:

1. The respondent Benjamin Che Trost is publicly reprimanded;
2. The respondent pay the applicant's costs of and incidental to this discipline application, such costs to be assessed on the standard basis as if this were a proceeding before the Supreme Court of Queensland.

[1] Legal Services Commissioner v Trost [2019] QCAT 357 ('Trost [2019]').

[2] Written submissions on behalf of the Respondent filed 17 January 2020.

[3] Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149, [122]; see also Legal Services Commissioner v Meehan [2019] QCAT 17, [31].

[4] [2016] QCAT 185.

[5] [2006] NSWADT 39.

[8] [2006] QCA 145; see also Legal Services Commissioner v Bone [2014] QCA 179.

[9] Legal Services Commissioner v Trost [2017] QCAT 171.

[10] Legal Profession Act 2007 (Qld) s 462(4).