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Jerry Carries On

NZ $55.00

Author(s): Stuart Walker, Nick Davidson QC
Published: 1 June, 2002

Ethics and professional responsibility for property lawyers based on an original case study developed by Stuart Walker and Nick Davidson QC for the 1998 NZLS seminar "Conflicts of Interest for Conveyancers".

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. They result in complex, costly and time-consuming litigation and complaint procedures.

The continuing difficulty experienced by solicitors reflects the need for a sound knowledge of underlying principles and vigilance in determining whether a transaction produces an actual or potential conflict. But identifying conflicts of interest or the potential for them is not always easy, particularly if you are under pressure. Moreover, conflicts can arise when you least expect them, often in the course of a transaction which has proceeded without any difficulty, and the appropriate response may depend on the circumstances.

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.

This case study follows through the sale and purchase of a small cafe, and its aftermath. It features Jerry, a cheerful, breezy "fix-it" type who acts, or at least attempts to act, for all those involved, including the purchaser's mother, who advances a loan of $5,000. He also arranges an advance from his firm's nominee company. Unfortunately, things go wrong: the business does not prosper, Maxine and Don split up, Maxine cannot meet her mortgage payments, and Mrs Abbott begins to worry about her money as well. In an effort to keep everyone happy, Jerry offers to meet the mortgage payments himself, assures everyone that all is well, and continues to act for all parties ... A large number of conflicts, potential conflicts and dubious practices are identifed and discussed.

Participants will have the opportunity to

  • identify a range of common ethical dilemmas as they arise, in the context of a realistic situation that has been produced on video
  • discuss when and why such situations are likely to arise
  • consider how to resolve them in an appropriate and realistic manner

What the course contains

  • a videotaped case study
  • a discussion leader's guide
  • a copy of the 1998 NZLS seminar booklet Conflicts of Interest for Conveyancers by Nick Davidson QC and Stuart Walker
  • follow-up material for participants

How it works

  • Participants will view the case study with the discussion leader, who will stop the tape at set intervals to discuss the issues as set out in the discussion leader's guide.
  • The course is intended for a single one to one and a half hour session, but it could be lengthened, shortened, or split into two sessions depending on the time available and the needs of the participants

Who is it for

  • This course is for use with large and small groups, or by individuals. While it is particularly suitable for in-house training, it could also be used in district law society or bar association seminars and meetings
  • The course is designed for property lawyers in particular, both experienced and inexperienced, but it touches on wider questions of concern to all lawyers. Legal executives could also benefit from it.

To order
There are two other training packages available, The Case of the Poisoned Kindergarten - a guided course in ethics and professional responsibility for civil litigators; and The Organic Apple Orchard - a further guided course in ethics and professional for property lawyers.

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