16Conflict concerning solicitor’s own interests (ASCR 12)

16 Conflict concerning solicitor’s own interests (ASCR 12)

(1)  A solicitor must not act for a client where there is a conflict between the duty to serve the best interests of a client and the interests of the solicitor or an associate of the solicitor, except as permitted by this rule.

(2)  A solicitor must not exercise any undue influence intended to dispose the client to benefit the solicitor in excess of the solicitor’s fair remuneration for legal services provided to the client.

(3)  A solicitor must not borrow any money, nor assist an associate to borrow money, from –

(a) a client of the solicitor or of the solicitor’s law practice; or

(b) a former client of the solicitor or of the solicitor’s law practice who has indicated a continuing reliance upon the advice of the solicitor or of the solicitor’s law practice in relation to the investment of money –

unless the client or the former client is –

(c) an Authorised Deposit-taking Institution; or

(d) a trustee company; or

(e) the responsible entity of a managed investment scheme registered under Chapter 5C of the Corporations Act 2001 (Cth) or a custodian for such a scheme; or

(f) an associate of the solicitor and the solicitor is able to discharge the onus of proving that a full written disclosure was made to the client and that the client’s interests are protected in the circumstances, whether by legal representation or otherwise; or

(g) the employer of the solicitor.

(4)  A solicitor will not have breached this rule merely by –

(a) drawing a will appointing the solicitor or an associate of the solicitor as executor, provided the solicitor informs the client in writing before the client signs the will –

(i) of any entitlement of the solicitor, or the solicitor’s law practice or associate, to claim executor’s commission; and

(ii) of the inclusion in the will of any provision entitling the solicitor, or the solicitor’s law practice or associate, to charge legal costs in relation to the administration of the estate; and