BSBCNV612 Case Study
The answers should be as per Victorian Legislation with all relevant citations and weblinks from government websites.
Item 1
Review each of the scenarios below and explain whether you find the conveyancer in each scenario has breached the code of conduct. You must include in your answer the breach which has been made to the relevant code of conduct and what regulation applies:
A conveyancer receives a short call from a client about a property matter. The conveyancer does not record the interaction in the file notes as it was under 5 minutes. Citation: https://classic.austlii.edu.au/au/legis/vic/consol_reg/ccr2018472/s12.html
Breach: Yes, the conveyancer has breached the code of conduct. Failure to keep adequate records of client interactions.
Relevant Code of Conduct: Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Regulation 12 Explanation: According to Regulation 12 of the Conveyancers (Professional Conduct) Regulations 2018 (Vic), a conveyancer must make and keep accurate and complete records of all dealings, including telephone conversations, with clients. The duration of the call is irrelevant; all interactions should be documented to ensure transparency and accountability. This practice helps in maintaining a clear record of advice and instructions given, which is vital for resolving any future disputes or misunderstandings.
A conveyancer prepares and signs a Solicitors Certificate at the request of the clients bank. The conveyancer has the conveyancing qualification and works in a law firm. Citation: https://classic.austlii.edu.au/au/legis/vic/consol_reg/ccr2018472/s8.html https://classic.austlii.edu.au/au/legis/vic/consol_act/ca2006153/s10.html
Breach: Yes, there is a breach. Acting outside the scope of professional qualifications and duties.
Relevant Code of Conduct: Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Regulation 8 Conveyancers Act 2006 (Vic) – Section 10 Explanation: According to Regulation 8 of the Conveyancers (Professional Conduct) Regulations 2018 (Vic), a conveyancer must not engage in legal practice unless they hold the appropriate legal qualifications and are admitted to practice law. The preparation and signing of a Solicitors Certificate typically require a practicing solicitor, as it involves providing legal advice and assurances. Section 10 of the Conveyancers Act 2006 (Vic) specifies that a licensed conveyancer must not perform legal work unless permitted by law. Since the conveyancer in question holds only conveyancing qualifications and not a legal practicing certificate, preparing and signing a Solicitors Certificate exceeds the permissible scope of their professional duties, thereby constituting a breach of both the Act and the Regulations.
A conveyancer receives a call from a client about a blog post that was recently sent out regarding a seminar. The conveyancer does not record the interaction in the file notes. Breach: None.
Relevant Code of Conduct: None applicable.
Explanation: The phone call from the client was regarding a blog post about a seminar, which is unrelated to any specific conveyancing transaction or legal advice. The Conveyancers (Professional Conduct) Regulations 2018 (Vic) focus on the conduct of conveyancers in relation to their professional duties and interactions directly impacting a conveyancing transaction. Since the interaction was about a blog post and not directly related to a property matter or conveyancing transaction, it is not mandatory to record such interactions in the file notes. Therefore, no breach of the code of conduct has occurred in this scenario.
Feedback from assessor:
1. First scenario not say that you are incorrect however you have chosen the wrong section within the Regulation
2. Second scenario again you have mentioned the Regulation this is correct but incorrect section this is all all about Solicitor Certificate so why would you require a Solicitor Certificate and then see what section might be relevant here.
3. Third scenario you are correct.
Item 2
Jamie, who works as a conveyancer at your organisation, was acting on behalf of a client who was selling their property. You find out that the conveyancer was receiving kickbacks for recommending clients to a certain developer. While the gifts were not monetary, they were significant.
Over the course of a couple of months, Jamie received:
A fully paid trip to Fiji sponsored by the developer
Two tickets to see Jimmy Barnes at his next show
The conveyancer did not disclose to the client that they were also acting for the developer when they made the recommendation to go with the developer.
Apply the key principles and responsibilities of codes of conduct to this scenario and explain why Jamie is in breach of them and advise the relevant regulation.
Answer: In this scenario, Jamie, a conveyancer, has engaged in actions that are in breach of the key principles and responsibilities of codes of conduct for conveyancers. Jamie’s actions are ethically and professionally problematic and raise concerns regarding conflicts of interest and the duty to act in the best interests of the client. Below are the breach of key principles and responsibilities and the relevant regulation: Breach 1: Duty to Act in the Best Interests of the Client Principle: Conveyancers have a fundamental duty to act in the best interests of their clients, providing impartial and unbiased advice that prioritizes the client’s welfare above other considerations. Relevant Regulation: Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 7(1). “A licensee must act honestly and fairly in the best interests of a client.” Explanation: By receiving significant gifts from the developer and not disclosing this relationship, Jamie’s ability to provide impartial and unbiased advice is compromised. This creates a conflict of interest and undermines Jamie’s duty to act in the best interests of the client. Breach 2: Disclosure of Conflicts of Interest Principle: Conveyancers are obligated to disclose any conflicts of interest to their clients. This disclosure is essential to ensure transparency, maintain trust, and allow clients to make informed decisions. Relevant Regulation: Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 7(2) “If a licensee becomes aware that a conflict of interest exists or may arise, the licensee must disclose the conflict of interest to the client in writing.” Explanation: Jamie did not disclose the relationship with the developer to the client when recommending the developer’s services. This is a clear breach of the duty to disclose conflicts of interest, which is necessary for maintaining transparency and allowing the client to make informed decisions. Breach 3: Acceptance of Gifts and Benefits Principle: Conveyancers should not accept gifts, benefits, or incentives from third parties, such as developers, that could compromise their professional integrity or independence. Relevant Regulation: Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 10 “A licensee must not solicit or accept any gift, benefit or other inducement in connection with the provision of conveyancing work.” Explanation: Jamie accepted a fully paid trip to Fiji and tickets to a Jimmy Barnes show from the developer. These gifts, although not monetary, are significant and can be perceived as influencing Jamie’s professional judgment. This compromises Jamie’s professional integrity and independence, which is prohibited by the regulations. Breach 4: Broader Consumer Protection Codes Additionally, Jamies actions may also breach the Australian Consumer Law (ACL). Relevant Regulation: Competition and Consumer Act 2010 (Cth) – Sec 18. Explanation: Under the ACL, conduct that is misleading or deceptive, or is likely to mislead or deceive, is prohibited. Jamie’s undisclosed relationship with the developer and acceptance of gifts may lead clients to believe that recommendations are made solely based on merit, which is misleading. In conclusion, Jamies acceptance of significant gifts from a developer, combined with the failure to disclose this relationship to the client, constitutes multiple breaches of the Conveyancers (Professional Conduct) Regulations 2018 (Vic). These actions undermine the principles of acting in the best interests of the client, maintaining transparency through disclosure of conflicts of interest, and upholding professional integrity by not accepting significant gifts or benefits. It is crucial for conveyancers to adhere to these principles and regulations to maintain trust and uphold the integrity of the conveyancing profession.
Feedback from assessor:
Great answer, please advise which specific codes have been breached. Keep in mind conveyancing codes and some of the more broader consumer protects codes.
Agree with Fiona but you are quoting incorrect sections also have a look at the Conveyancers Act 2006 there also is a section on this as well.
Item 3
Review each of the following scenarios and explain how you would ensure that you would exercise ethical behaviour that complies with relevant codes of conduct and advise the relevant regulation and provide in full that regulation.
You act for a vendor who asks you to omit material facts about their property that had 6 murders take place over the last 2 years. Omission of Material Facts About Property Situation: You act for a vendor who asks you to omit material facts about their property that had 6 murders take place over the last 2 years. Ethical Response and Compliance: In this scenario, it is crucial to adhere to the ethical principles and regulations governing the disclosure of material facts in property transactions. As a conveyancer, you have a duty to ensure that all material facts about a property are disclosed to potential buyers. Failing to disclose such significant information can lead to legal consequences and breach of professional conduct regulations.
Relevant Regulation: Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 12 Full Regulation: “Regulation 12 – Disclosure of Material Facts: (1) A licensee must disclose to a client all known material facts about a property or conveyancing transaction that could reasonably be expected to influence the clients decision to buy, sell, or lease the property or proceed with the transaction. (2) A licensee must not make any statement or representation that the licensee knows or ought to know is false, misleading, or deceptive.” Explanation: The regulation explicitly requires conveyancers to disclose all known material facts about a property. The occurrence of six murders on the property is a significant material fact that could influence a potential buyer’s decision. Therefore, omitting this information at the request of the vendor would be a breach of Regulation 12 of the Conveyancers (Professional Conduct) Regulations 2018 (Vic). Steps to Ensure Ethical Behaviour: 1. Inform the Vendor: Clearly explain to the vendor that you are legally obligated to disclose all material facts about the property, including the incidents of murder, and that failing to do so would be a breach of professional conduct regulations. 2. Document the Discussion: Record the conversation with the vendor, including their request and your response, in your file notes. This documentation will serve as evidence that you acted ethically and in compliance with the regulations. 3. Disclose Material Facts: Ensure that all material facts, including the history of the property related to the murders, are disclosed in the Section 32 Vendor Statement and any other relevant documentation provided to potential buyers. 4. Seek Legal Advice: If the vendor insists on omitting the material facts, seek legal advice or report the issue to your professional body to ensure that you are protected and that you continue to comply with the relevant regulations. By following these steps, you ensure that you act ethically and in compliance with the Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 12, thereby maintaining the integrity of your professional practice and protecting the interests of potential buyers.
You find that a conflict of interest has taken place since you signed on a client. Conflict of Interest After Signing On a Client Situation: You find that a conflict of interest has taken place since you signed on a client. Ethical Response and Compliance: In this scenario, it is critical to handle the conflict of interest in accordance with ethical principles and relevant regulations to maintain the integrity of the conveyancing process and ensure transparency. Relevant Regulation: Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 14 Full Regulation: “Regulation 14 – Conflict of Interest: (1) A licensee must not act for a client where a conflict of interest exists or is likely to arise unless the licensee has fully disclosed the conflict to the client and has obtained the client’s informed consent in writing to continue to act for the client. (2) A licensee must take all reasonable steps to avoid any conflict of interest in relation to the licensee’s duties to a client. (3) If a conflict of interest arises, the licensee must immediately inform the client and cease to act for the client unless the client, after full disclosure of the conflict, gives informed consent in writing for the licensee to continue to act for the client.” Explanation: This regulation mandates that conveyancers must not act for a client if a conflict of interest exists or is likely to arise, unless the conflict is fully disclosed to the client and the client provides informed consent in writing to continue the representation. The conveyancer must take all reasonable steps to avoid conflicts of interest and must inform the client immediately if a conflict arises, ceasing to act for the client unless informed consent is obtained. Steps to Ensure Ethical Behaviour: 1. Identify the Conflict: Determine the nature and extent of the conflict of interest. This could include personal, financial, or professional conflicts that could affect your impartiality and ability to act in the best interests of the client. 2. Disclose the Conflict: Inform the client of the conflict of interest as soon as it is identified. Provide a clear and comprehensive explanation of how the conflict may affect their matter and your ability to represent them impartially. 3. Obtain Informed Consent: If the client wishes to continue with your services despite the conflict, obtain their informed consent in writing. Ensure the client fully understands the potential implications of the conflict. 4. Document the Process: Keep detailed records of the identification of the conflict, the disclosure made to the client, and the client’s written consent. This documentation is essential for accountability and transparency. 5. Consider Ceasing Representation: If the conflict is significant and cannot be managed through disclosure and consent, or if the client does not provide informed consent, you must cease to act for the client to comply with ethical standards and regulations. 6. Seek Guidance: If you are uncertain about how to handle the conflict, seek guidance from a senior colleague, your professional body, or legal counsel to ensure that you are acting in accordance with the relevant regulations and ethical principles. By following these steps, you ensure that you exercise ethical behaviour and comply with the Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 14, thereby maintaining professional integrity and protecting the interests of your clients.
You are swamped with work and a client pressures you to take on their matter but you may not be able to carry out the work in a reasonable amount of time. Managing Workload and Client Expectations Situation: You are swamped with work, and a client pressures you to take on their matter, but you may not be able to carry out the work in a reasonable amount of time. Ethical Response and Compliance: In this scenario, it is essential to manage your workload effectively to ensure that you can meet your professional obligations and provide high-quality service to all clients. Taking on more work than you can handle may lead to substandard service and ethical breaches. Relevant Regulation: Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 8 Full Regulation: “Regulation 8 – Standards of Work: (1) A licensee must ensure that conveyancing work is carried out with due care and diligence. (2) A licensee must ensure that conveyancing work is carried out in a timely manner.” Explanation: This regulation mandates that conveyancers must carry out their work with due care and diligence and ensure that their work is completed in a timely manner. Overcommitting and failing to manage workload appropriately can lead to a breach of these standards, impacting the quality and timeliness of service provided to clients. Steps to Ensure Ethical Behaviour: 1. Assess Current Workload: Evaluate your current workload and determine your capacity to take on additional work without compromising the quality and timeliness of service for existing clients. 2. Communicate with the Client: Explain to the client your current workload and the potential impact on your ability to handle their matter promptly. Be transparent about your availability and the realistic time frame for commencing and completing their matter. 3. Prioritize Client Matters: Prioritize your current matters based on urgency and deadlines. Ensure that high-priority and time-sensitive matters are given adequate attention. 4. Decline or Postpone New Work: If your assessment indicates that you cannot take on the new matter without compromising your standards of work, politely decline the new work or negotiate a later start date when your workload eases. 5. Delegate or Refer: If possible, delegate the work to a competent colleague within your firm or refer the client to another conveyancer who has the capacity to handle their matter promptly. 6. Document Communication: Keep a record of all communications with the client regarding your workload and their matter. Document your reasons for declining or postponing the new work and any referrals made. 7. Seek Assistance: If the workload consistently exceeds your capacity, discuss the issue with your supervisor or manager. Seek additional resources or support to manage the workload effectively. By following these steps, you ensure that you exercise ethical behaviour and comply with the Conveyancers (Professional Conduct) Regulations 2018 (Vic) – Reg 8, thereby maintaining professional standards and ensuring client matters are handled with due care, diligence, and in a timely manner.
Feedback from assessor:
With scenario 1 you mention Regulation 12 believe this is not the correct section. Please have a look at the Regulation again for me and also look at the Sale of Land Act this is all about omission
Scenario 2 is correct section 14 but is there another section you could provide here and also have a look at the Conveyancers Act 2006 as well for me
Scenario 3 I will get you to read the question and then look at the Regulation to see what would be more appropriate to the question being asked.
Item 4
Your supervisor has asked you to draft up a quick handout at the next meeting. This handout will be provided to the interns who have recently been signed up to do a work experience program. The handout needs to explain the following key concepts:
Key steps that are involved in the process of amending or changing legislation.
A list of three amendments that have recently passed (in the last year) that relate to the conveyancing industry.
A list of all relevant codes of conduct that are applicable to each state.
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