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CIC98

Conflicts of Interest for Conveyancers

NZ $35.00
incl GST
Author(s): Stuart Walker, Nick Davidson QC
Published: 12 October, 1998
Pages: 110

   

Introduction


Lawyers are conscious of the obligation to perform to high ethical standards, corresponding with their obligations as fiduciaries.

Yet actions based on a breach of fiduciary obligation arising out of conflict persist. While there is evidence of recognition of the obligation, and determined attempts to avoid or deal with conflict, there remains a significant number of actions (for smaller sums than were claimed in the aftermath of the 1987 crash). They result in complex, costly and time-consuming litigation and complaint procedures.

The continuing difficulty experienced by solicitors reflects the fact that a sound knowledge of the underlying principle is required, and vigilance in determining whether a transaction produces an actual conflict, or the potential for such, as opposed to the theoretical possibility of same. The appropriate response depends on the circumstances. Chapter 2 of this paper discusses the conceptual issues. Conflicts can arise when least expected, often in the course of a transaction which has proceeded without any difficulty.

At a personal level solicitors are often faced with compelling pressure from their clients to act for them in circumstances when the proper response would be unwelcome, either to send the client away, or to provide the thorough information associated with informed consent and a restricted retainer. Often the genuine desire to avoid inconvenience by sending a client to another lawyer at a distance, or time pressure will see the strict obligation undermined.

Without preempting a close analysis of the fiduciary obligation and how it should be handled, experience suggests that the prudent course of action is to err on the side of caution both in respect of conflicts between the interests of lawyers and their clients, and those between clients whether current or former.

 

Content outline

  • Conceptual issues
  • Conflicts when acting for vendor and purchaser
  • Conflicts and investment advice
  • Conflicts when acting for lender and borrower
  • Conflicts and all-obligations mortgages
  • Conflicts and guarantees
  • Conflicts when acting for landlord and tenant
  • Conflicts between company and shareholders
  • Acting against former clients
  • Conflict of interest and duty
  • Breach of fiduciary duty - consequences
  • Avoiding liability
  • Risk management procedures
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