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LEGAL PROFESSION UNIFORM LAW AUSTRALIAN SOLICITORS' CONDUCT RULES 2015 - REG 12
Conflict concerning a solicitor's own interests
12 Conflict concerning a solicitor's own interests
12.1 A solicitor must not act for a client where there is a conflict between
the duty to serve the best interests of a client and the interests of the
solicitor or an associate of the solicitor, except as permitted by this Rule.
12.2 A solicitor must not exercise any undue influence intended to dispose the
client to benefit the solicitor in excess of the solicitor's fair remuneration
for legal services provided to the client.
12.3 A solicitor must not borrow
any money, nor assist an associate to borrow money, from: 12.3.1 a client of
the solicitor or of the solicitor's law practice, or
12.3.2 a former client
of the solicitor or of the solicitor's law practice who has indicated a
continuing reliance upon the advice of the solicitor or of the solicitor's
law practice in relation to the investment of money,
UNLESS the client is: (i)
an Authorised Deposit-taking Institution,
(ii) a trustee company,
(iii) the
responsible entity of a managed investment scheme registered under Chapter 5C
of the Corporations Act 2001 (Cth) or a custodian for such a scheme,
(iv) an
associate of the solicitor and the solicitor is able to discharge the onus of
proving that a full written disclosure was made to the client and that the
client's interests are protected in the circumstances, whether by legal
representation or otherwise, or
(v) the employer of the solicitor.
12.4 A
solicitor will not have breached this Rule merely by: 12.4.1 drawing a Will
appointing the solicitor or an associate of the solicitor as executor,
provided the solicitor informs the client in writing before the client signs
the Will: (i) of any entitlement of the solicitor, or the solicitor's
law practice or associate, to claim executor's commission,
(ii) of the
inclusion in the Will of any provision entitling the solicitor, or the
solicitor's law practice or associate, to charge legal costs in relation to
the administration of the estate, and
(iii) if the solicitor or the
solicitor's law practice or associate has an entitlement to claim commission,
that the client could appoint as executor a person who might make no claim for
executor's commission,
12.4.2 drawing a Will or other instrument under which
the solicitor (or the solicitor's law practice or associate) will or may
receive a substantial benefit other than any proper entitlement to executor's
commission and proper fees, provided the person instructing the solicitor is
either: (i) a member of the solicitor's immediate family, or
(ii) a
solicitor, or a member of the immediate family of a solicitor, who is a
partner, employer, or employee, of the solicitor,
12.4.3 receiving a
financial benefit from a third party in relation to any dealing where the
solicitor represents a client, or from another service provider to whom a
client has been referred by the solicitor, provided the solicitor advises the
client: (i) that a commission or benefit is or may be payable to the solicitor
in respect of the dealing or referral and the nature of that commission or
benefit,
(ii) that the client may refuse any referral, and
the client has
given informed consent to the commission or benefit received or which may be
received,
12.4.4 acting for a client in any dealing in which a financial
benefit may be payable to a third party for referring the client, provided the
solicitor has first disclosed the payment or financial benefit to the client.
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