BSBCNV612 CASE STUDY
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National Business Institute Inc. *
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BSBCNV612
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Law
Date
Feb 20, 2024
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BSBCNV612 ASSESSMENT ACTIVITY
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.
The conveyancer is in breach under section 17 (b) of the Conveyancers (Professional Conduct) Regulations 2018. The Regulation states that conveyancers “must keep a written record, in the form of a file note, [of all] telephone conversations made or received in connection with conveyancing work”. A conveyancer prepares and signs a Solicitor’s Certificate at the request of the
client’s bank. The conveyancer has the conveyancing qualification and works in a law firm.
The conveyancer is in breach under section 9 of the Conveyancers (Professional Conduct) Regulations 2018, as it is not within a conveyancer’s competence to prepare and sign a solicitor’s certificate. This can only be done
by a solicitor, even if the conveyancer works in a law firm. The Regulation states that conveyancers “must not accept instructions to perform conveyancing work unless the licensee is competent to perform the conveyancing work concerned.” 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.
The conveyancer is not in breach of the code of conduct. Section 17 of the Conveyancers (Professional Conduct) Regulations 2018 states any “telephone conversation made or received in connection with conveyancing work”. Given that this phone call between the conveyancer and their client was of a ‘trivial’ nature and unrelated to conveyancing, the conveyancer would not be obligated to make a file note detailing the conversation.
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.
Making sure that your clients are informed and aware of all aspects of their transaction is incredibly important, and frankly, imperative, to ensure transparency and that the conveyancer is performing their work in accordance with the legislation and code of conduct.
Jamie clearly failed, or ignored, her duty to inform her client of a potential conflict of interest in acting for more than one party.
Jamie did not show professionalism in the situation and did not meet up to her
obligations to her client to disclose that she was also acting for the developer when she recommended them. Jamie breached sections 6(2), 11, and 14 of the Conveyancers (Professional Regulations) 2018, as well as section 49 of the Conveyancers Act 2006. 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.
For a conveyancer to omit material facts from a Contract of Sale that they are aware of would be highly unethical. Section 11 of the ‘
Conveyancers (Professional Conduct) Regulations 2018’
states that “a licensee must act in the client’s best interests and according to the client’s instructions at all times
unless it would be contrary to the Act or these Regulations or otherwise unlawful to do so”. If I was in this situation, I would ensure that the client knew and acknowledged/understood the consequences of not disclosing known material facts about their property. I would advise my client that to omit material facts from a Contract of Sale is an offence and is also an offence
for the conveyancer to knowingly conceal any material facts. If my client persisted that they did not want the material facts included in the contract, I would advise them to seek other representation and cease acting. You find that a conflict of interest has taken place since you signed on a client.
When a conflict of interest occurs in a transaction, it is important for the conveyancer to ensure they are following the applicable guidelines and regulations set out in the ‘Conveyancers (Professional Conduct) Regulations 2018’ and the ‘Conveyancers Act 2006’
. To ensure that ethical behaviour is conducted in this situation, as soon as the conflict of interest is identified I would disclose this to my client and have them sign the applicable disclosure form. Section 14 of the ‘Conveyancers (Professional Conduct) Regulations 2018’
provides indication as to which disclosure form is required for different conflict of interest situations pertaining to section 49 of the ‘Conveyancers Act
2006’
. If however the conflict that has arisen be that I, the conveyancer, be unable to
act in the best interest of all parties, then the ethical outcome would be to cease acting. This is advised under section 15 of the ‘
Conveyancers (Professional Conduct) Regulations 2018’ stating that “if a licensee who is acting for more than one party cannot continue to act for all of the parties without acting in a manner contrary to the interests of one or more of the parties, the licensee must cease to act for all of the parties”
.
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.
Under section 10 of the ‘Conveyancers (Professional Conduct) Regulations 2018’
it states that “a licensee must not accept instructions to perform conveyancing work unless the licensee reasonably expects to be able to carry out the conveyancing work concerned reasonably promptly.
” Therefore, if I was in this situation and a client had pressured me to take on their matter that I know couldn’t be completed within a ‘reasonable’ amount of time, I would advise the client very clearly, by phone call and followed up in writing, that I may not be able to carry out the work within a reasonable timeframe and suggest other representation be sought. I would advise the client that my conveyancing work must be performed at the professional standards set out and I must ensure that I am conducting ethical behaviour with every matter and therefore do not believe that taking on their matter would be ethical. 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.
Create this document in a word document and upload your answer.
5.
John Vu is one of your clients. He is buying a property that is subject to finance. He calls you to let you know that Westwealth, the bank they applied to for finance, has approved the loan, which is for 345,000. He will send through the paperwork when he receives it.
Update the file note below to summarise the call.
Client Name – John Vu
File number #e4334444
Date of call – 11 July 2023 at 11:15am
Notes
– Spoke with John to get an update regarding his finance clause which falls due tomorrow. John confirmed that his finance has been approved by Westwealth for $345,000 and he will send through the approval once he receives it. I advised once the approval letter/paperwork comes through we’ll check it’s in order and contact him to confirm that he is happy for us to confirm the finance clause has been satisfied.
Diarise for 14/07 – follow up with john at the end of the week if he has not sent through the formal approval paperwork.
6.
Read the following profiles and identify the person responsible for updating the team with legislative changes and industry codes of conduct.
Name: Karen Jones
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Qualifications: Advanced Diploma of Conveyancing
Job title: Residential Conveyancer
Responsibilities:
Karen Jones is a residential conveyancer who specialises in assisting clients with the buying and selling of properties. She is responsible for ensuring that all legal aspects of the transaction are taken care of, from the initial offer through to completion. This includes conducting searches, preparing contracts, dealing with stamp duty and Land Registry requirements, and liaising with other professionals such as mortgage lenders and surveyors. In addition, Karen provides guidance and support to clients throughout the process, keeping them updated on progress and answering any queries they may have.
Karen would not be the person responsible for updating the team/her colleagues regarding legislative changes and industry codes of conduct. This would be the responsibility of the business owner or principal solicitor/conveyancer. If Karen were the business owner however, then it would be her responsibility to keep her team informed of any legislative changes and industry codes of conduct.
Name: John Smith
Qualifications: Bachelor of Law, Advanced Diploma of Conveyancing
Job title: Conveyancer
Responsibilities: John is responsible for the legal transfer of property ownership from one person to another. He carries out all the necessary searches and enquiries, prepares the contract of sale and transfer documents,
and liaises with the buyer's and seller's solicitors to ensure a smooth transaction.
John would not be the person responsible for updating the team/his colleagues
regarding legislative changes and industry codes of conduct.
His job description does not include these additional responsibilities, and these would be the responsibility of another team member or principal solicitor/conveyancer.
Name: Nevi James
Qualifications: Bachelor of Law, Advanced Diploma of Conveyancing
Job title: Senior Conveyancer
Responsibilities: Nevi is responsible for the legal transfer of property ownership from one person to another. He carries out all the necessary searches and enquiries, prepares the contract of sale and transfer documents,
and liaises with the buyer's and seller's solicitors to ensure a smooth transaction. Nevi is also responsible for monitoring and communicating changes to legislation and industry codes of conduct. Nevi handles all newsletters and website content and keeps it up to date regularly.
It is clearly noted in Nevi’s job description/responsibilities that he is the person responsible for updating the team/his colleagues with legislative changes and industry codes of conduct. It is part of Nevi’s role to monitor and communicate these to the tram as they come in.