Screen a matter for a conflict with the solicitor's own interests
Key facts
- Human involvement
- YellowClose supervision
- How AI is used
- When a matter is opened or a benefit is proposed, record any interest of the solicitor or an associate that is different from the client's, any proposed benefit above remuneration for the legal services, any proposed borrowing from a client or former client, any appointment of the solicitor or an associate as executor, and any commission or referral benefit. Record what the client has been told in writing and any consent. Do not decide that the solicitor may act, and do not draft the disclosure.
- What the lawyer must review
- The lawyer decides whether the solicitor may act. Rule 12 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, in the Western Australian compilation that was opened, concerns a conflict with the solicitor's own interests. Rule 12.1 says a solicitor must not act 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, except as permitted by the rule. Rule 12.2 says a solicitor must not do anything calculated to dispose a client or third party to confer a benefit above fair and reasonable remuneration for the legal services, or that the solicitor knows or ought reasonably to anticipate is likely to induce such a benefit and is not reasonably incidental to the retainer. Rule 12.3 says a solicitor must not borrow money, nor assist an associate to borrow money, from a client, or from a former client who has indicated a continuing reliance on the solicitor or the practice for investment advice, unless the client is an authorised deposit-taking institution, a trustee company, 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, an associate and the solicitor can discharge the onus of proving full written disclosure and that the client's interests are protected, or the solicitor's employer. Rule 12.4 says the solicitor will not have breached the rule merely by drawing a will appointing the solicitor or an associate as executor, if before the will is signed the client is informed in writing of any entitlement to claim executor's commission, of any provision entitling them to charge legal costs of the administration, and that the client could appoint an executor who might make no claim for commission; by drawing a will or other instrument under which the solicitor, practice or associate will or may receive a substantial benefit other than proper commission and proper fees, if the person instructing is a member of the solicitor's immediate family, a member of the immediate family of the solicitor's spouse, or a solicitor or a member of the immediate family of a solicitor who is a partner, employer or employee of the solicitor; by receiving a financial benefit from a third party, or from a service provider to whom the client is referred, if the solicitor advises the client that a commission or benefit is or may be payable and of its nature, that the client may refuse any referral, and the client has given informed consent; or by acting in a dealing in which a financial benefit may be payable to a third party for the referral, if that payment or benefit was first disclosed to the client. The opened rule does not define associate, informed consent, or immediate family. The lawyer decides whether the solicitor may act. The opened text is the Western Australian compilation. Other compilations were not opened.
- Written for / version
- US
Open a jurisdiction version of this task to see which instruments apply: US
Who does what
| Role | What they do |
|---|---|
| Assistance | When a matter is opened or a benefit is proposed, record any interest of the solicitor or an associate that is different from the client's, any proposed benefit above remuneration for the legal services, any proposed borrowing from a client or former client, any appointment of the solicitor or an associate as executor, and any commission or referral benefit. Record what the client has been told in writing and any consent. Do not decide that the solicitor may act, and do not draft the disclosure. |
| Lawyer | Set the scope, supervise the work closely, verify every part relied on, resolve omissions and exceptions, and approve the exact output. |
Checklist
- Separate this from a former-client information conflict and from two current clients. This screen is the solicitor's or an associate's own interest.
- A borrowing from a client is rule 12.3. Do not treat remuneration for the legal services as that borrowing.
- An executor appointment needs the written information before the will is signed, including that someone else might claim no commission. Record whether that writing exists. Do not draft it.
- Do not describe consent as informed. The opened rule uses the words and does not define them.
Sources
These are suggested working checks. Confirm the required checking with the responsible lawyer before work starts; the checking approach does not establish permission to use AI.