W0 Flashcards
What are the three phases of a property transaction?
The three phases of a property transaction are instructions, pre-exchange, and completion of the deed.
What conduct issues need to be considered when accepting instructions to act in a property matter?
When accepting instructions to act in a property matter, conduct issues that need to be considered include providing a competent and timely service, being authorized to act on the client’s behalf, avoiding conflicts of interest, and maintaining duty of confidentiality.
What does it mean to provide a competent and timely service in a property matter?
Providing a competent and timely service means having the necessary skills and experience for the client’s request and ensuring that the client’s matter is dealt with promptly. If necessary, the matter can be referred to another lawyer or team member who has the required skills and availability.
What does it mean to be authorized to act on a client’s behalf in a property matter?
Being authorized to act on a client’s behalf means acting only on instructions from the client or someone properly authorized to provide instructions. Identity checks are essential to verify the client’s identity, and when acting for a company, ensuring instruction by a validly appointed director with authority is important.
What are the two types of conflicts of interest in property transactions?
The two types of conflicts of interest in property transactions are own interest conflicts and conflicts that do not involve your own interests. Own interest conflicts have no exceptions, while conflicts that do not involve your own interests may have exceptions.
What is an own interest conflict in a property transaction?
An own interest conflict is any situation where your duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may, with your own interests in relation to that or a related matter. There are no exceptions to this rule.
What is a conflict of interest in a property transaction that does not involve your own interests?
A conflict of interest in a property transaction that does not involve your own interests is a situation where your separate duties to act in the best interests of two or more clients in the same or related matter conflict. In most cases, if there is a conflict of interest, you will not be able to act.
What are the exceptions to the rule of not acting in a conflict of interest?
The exceptions to the rule of not acting in a conflict of interest are when the clients have a substantially common interest in the matter or are competing for the same objective. In these cases, all clients must give informed consent, effective safeguards must be put in place to protect client confidentiality, and it must be reasonable for you to act for all the clients.
What is the substantially common interest exception to the conflict of interest rule?
The substantially common interest exception applies when there is a clear common purpose between clients and a strong consensus on how it is to be achieved. An example is acting for two companies that want to take out a lease as joint tenants.
What is the competing for the same objective exception to the conflict of interest rule?
The competing for the same objective exception applies when two or more clients are competing for an objective, such as in a structured competition process like an auction or tender. This exception is rare in practice and usually applies to sophisticated clients.
What is the duty of confidentiality in property transactions?
The duty of confidentiality in property transactions requires keeping the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents. This duty applies to solicitors and legal professionals and continues even after a client’s death.
Can a solicitor act for both a buyer and lender in a property transaction?
Generally, acting for a buyer and lender in the same transaction is permitted because both parties have a common interest in ensuring the property is good and marketable. However, in commercial transactions, this is not usual due to potential conflicts of interest, while in residential transactions, it is common for the buyer’s solicitor to act for both.
What are the conduct issues to consider when accepting instructions to act in a property matter?
When accepting instructions to act in a property matter, conduct issues to consider include providing a competent and timely service, being authorized to act on the client’s behalf, avoiding conflicts of interest, and maintaining duty of confidentiality.
What is the duty of disclosure in relation to client representation?
The duty of disclosure, also known as reporting to a client, requires lawyers to make clients aware of all information material to the matter of which they have knowledge. This duty helps ensure that clients are fully informed and can make informed decisions. There are limited exceptions to this duty, such as when disclosure could cause serious harm or is prohibited by legal restrictions.
How should lawyers provide information to clients?
Lawyers must provide clients with information in a way that they can understand. This means tailoring the communication to the client’s level of comprehension. For example, commercial clients may be accustomed to reading technical reports, while residential clients may require simpler language. If necessary, lawyers can offer to go through complex reports with clients over the phone or in person.
