Professional Responsibility

This article covers the top four potential conflict scenarios we see when practitioners act for multiple parties and their consequences.

Managing the receipt and payment of trust money is not a simple administrative task and needs careful attention by practitioners to avoid claims.

The preparation of thorough file notes is a core part of prudent legal practice and something practitioners should aim to fine-tune. The importance of a detailed file note cannot be overstated, both as evidence should a negligence claim ever arise, as much as for matter management, continuity and reference.

The announcement by Land Use Victoria that all land transactions will be conducted electronic by July 2019 is a timely reminder that practitioners need to implement a process to either destroy any paper titles or make them invalid in accordance with clause 6 of schedule 3 to the ARNECC Model Participation Rules.

There are several considerations that go into deciding what makes a ‘right client’. Thinking about this at the beginning and making sure it is communicated openly, can save you a headache later.

In the current financial environment requests for practitioners to advise on loans and guarantees, particularly from second and third tier lenders, appear to be increasing. Providing solicitors’ certificates in these matters is risky at the best of times, but where there is uncertainty about future financial and property market stability and clients under severe financial stress, extreme care needs to be taken.

The COVID-19 pandemic has caused major disruptions to our usual approach to both work and life. The stress of juggling commitments and adapting to new working arrangements means added risk as we find ourselves more distracted than usual. Although these distractions may be unavoidable during a pandemic, there are a few critical issues to keep in mind that will help you to work safely.

Does your firm have effective policies for maintaining the security of digital certificates? Are digital certificates being shared within your firm? Below are some of the risks and consequences and what you should do about it.

Have you been asked to provide a statement as to the circumstances surrounding the preparation and execution of a will and to also provide copies of the will file? Did the request refer to Larke v Nugus? This article covers some key issues you should consider.

LPLC has previously warned practitioners about bad cheque scams, also known as advance fee scams. These appear to still be alive and well.

Providing a solicitor’s certificate for a borrower or guarantor is risky. It is essential to treat it as providing professional advice and not just witnessing documents.

LPLC regularly receives calls from practitioners seeking guidance about a potential conflict when acting for both the vendor and purchaser of real estate.

Principals need to be proactive in supervising all employees, including experienced lawyers and clerks, to ensure the firm’s policies and procedures are followed and matters are progressed in a timely manner.

There can be a number of reasons claims arise where trust funds are held by a law firm. In some claims trust funds were paid by the law firm to the wrong party, while in others trust funds were not invested in accordance with the client’s instructions or the option to invest was not raised with the client.

Sometimes claims arise where a practitioner acts for both the vendor and purchaser in a conveyancing transaction.

You should always be aware of the risks when a matter moves into unfamiliar territory beyond your expertise. This often happens where the matter starts within a practitioner’s normal area of practice but subsequently takes a turn into another area. Sometimes the practitioner thinks ‘it can’t be that different’ from the area familiar to them.

Tactics are an essential part of mediations as practitioners seek to reach an outcome favourable to their clients. However, there are legal and ethical limits to how far practitioners can go in settlement negotiations. Practitioners in mediations should be mindful of the provisions of Part 2.3 of the Civil Procedure Act 2010 (Vic) and section 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cwlth), known as The Australian Consumer Law.

Look before you leap is an old age adage that is well suited to the situation where a client informs their practitioner that they want to nominate. LPLC has seen a number of claims where a practitioner has failed to fully advise a client about the consequences of nominating.

With the introduction of the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 practitioners should no longer provide certificates of advice for borrowers and guarantors to lenders other than those referred to in rule 11.

When a person loses capacity it is usually a lot simpler to deal with any financial and legal decisions where that person has appointed an attorney via an enduring power of attorney (financial). This is part of the advice often given by practitioners to clients. It is not clear how many practitioners have taken their own advice.

Some practitioners mistakenly assume, when acting for multiple parties in a matter, any conflict of interest concerns will be overcome by the clients’ consent to act.

The following article contains a case-study discussion of what constitutes an undertaking.