Professional Skills Essay Example

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Professional Skills Final Exam

Question 1

Conveyancers are not professionals because any person who is a legal professional from any background can be a licensed conveyancer as long one has completed the required training course that is enforced by the Council of Licensed Conveyancers. A licensed conveyancer does not need to be a property specialist unlike a solicitor or conveyancy lawyer whose area of specialty is property law. A licensed conveyancer is not focused on only property law and hence is a bit general which makes it hard for them to be perceived as professionals1.

. This is unlike professionals who are not prohibited from performing functions of on behalf of more than one license holder at the business premises.2, a licensed conveyancer is prohibited from carrying out functions on behalf of more than one license holder at the business premisesConveyancers Licensing Regulation 2015 of Section 20(4) & (5) According to

. On the other hand, professionals such as solicitors are restricted when it comes to their scope of work. 3 Fair Trading regulates conveyancers and most conveyancers have licenses that are not restricted and hence they perform full scope of conveyancing work for residential, commercial as well as rural property

Question 2

According to Conveyancers Licensing Regulation 2015, Conveyancers are fiduciaries which means they are subject to fiduciary responsibilities and hence in regard to the conflict of interests, conveyancers owe their clients duty of loyalty and confidence4. In this case, there might be conflict of interests because it will involve representing two clients, namely; Laura & Daisy and Don in the same transaction where the conveyancer is acting on sale of the property and at the same time acting on the purchasing on the property. Therefore, in this case the conveyancer there is not only conflict of interests but also confusion in regard to duty of loyalty. Duty of loyalty obligates legal representatives to act single-mindedly and objectively in the interests of their clients. One should dedicate all his/her legal skills to their clients, share all information with their clients to the clients’ interests and not perform any other activity that can distract one from pursuing the interests of the clients5. In this case, it will be difficult for the conveyancer to act to the best interests of both clients. In the case, Spincode Pty Ltd v Look Software Pty Ltd [2001] VSC 287, it was held that the equitable duty of loyalty is not observed when a legal representative acts on two clients in the same matter6.

According to the Settlement Agents Code of Conduct (1982), section 46 of the Act and rule 5, in an event where a licensee acts for both parties in the same matter, he should inform them and can go further to advising one of the parties to seek another legal advice and appoint another conveyancer in order to avoid any probable conflict of interest7. Accordingly, in this case it would be advisable to advice either Laura or Daisy and Don to seek another conveyancer so as for the two parties to have each a different representative in the same matter in order to avoid conflicts of interests. Section 4 of the Lawyers and Conveyancers Act 2006 obligates lawyers and conveyancers to always exercise independent professional judgment on their clients. Violation of this Act leads to risk of a conflict of interests. Therefore, the conveyancer should act according to this Act to avoid conflict of interests8.

In Farrington v Rowe McBride & Partners [1985] 1 NZLR 83, it was held that when a solicitor is acting for two clients and there is conflict in his responsibilities, the conveyancer should make sure that the material facts are disclosed to the two clients and that the conveyancer gets informed consent regarding his acting from both the clients9. The other duty is confidentiality which is the cornerstone of a conveyancer and the client because it is fundamental for appropriate administration of justice. This promotes clients to reveal all relevant facts and hence the duty of confidentiality can conflict with that of disclosure to another client. In this case, it would have been appropriate for the conveyancer to ensure that all details were revealed to both the clients to uphold the duty of loyalty and confidentiality as well as ensure that the conveyancer has the informed consent from both clients to take the matter for them without any conflict of interest10.

Question 3

Sara is not qualified to be licensed according to Conveyancers Licensing Act 2003. According to Conveyancers Licensing Act 2003, an individual is eligible to be licensed if the person is above 18 years old, be suitable to have a licence, has the needed qualifications to be licensed and makes payment of the required contribution as per section 1211. Additionally, to be lincensed as a conveyance, a person should not be an Australian legal practitioner; a person should not be bankrupt; not disqualified as per the Legal Profession Act 2004; no conviction within the last 10 years for a crime punishable through incarceration for 3 months or more; and last a person is disqualified one has been convicted of fraud, dishonesty, drug trafficking or violence regardless of one was imprisoned or not12.

From the case, Sara is disqualified in various aspects as per the Conveyancers Licensing Act 2003. First, the Act stipulates that a person should not be bankrupt. Sara is bankrupt and hence she is not qualified. Similarly, the Act stipulates that a person should not have been convicted for violence regardless of whether one was imprisoned or not. Sara was convicted for violence after a fight occurred in a pub and she was charged with assault which she pleaded guilty and was fined. The assault was a violence offense. Sara’s conviction took place within the last ten years and hence this disqualifies her to get a license as a conveyancer.

In regard to Sara’s education and experience qualifications, Sara is still not qualified to be licensed as a conveyancer. To be licensed, a person should have at least a twelve month experience in the last 5 years and have a recognized law degree and the required legal training requirements. For one to be a qualified conveyancer, a person is also required to complete a property law and conveyancing practice from a Registered Training Authority13. Even though Sara completed a degree in law from Sydney University, she did not undertake the required training requirements. For instance, Sara has not completed any property law and conveyancing practice from a Registered Training Authority and also did not complete units of competency as stipulated in the FNS10 Financial Services Training Package. Education therefore disqualifies Sara from holding a license as a conveyance. In regard to experience, Sara has more than a year experience in conveyancing and hence experience does not disqualify her14.

From the above analysis, it shows that Sara is not qualified on grounds of bankruptcy because Conveyancers Licensing Act 2003 disqualifies any person who is bankrupt. Similarly, Sara is not a fit and proper to hold a licence because she was convicted of assault which is a violence offense and people convicted of such an offense within the last 10 years are not qualified to be licensed15. Finally, in regard to her education, apart from her degree in law from Sydney, Sara has not undertaken the required training courses that a person should take after completing a law degree so as to be licensed as a conveyancer. Therefore, it is unlikely that Sara will succeed on her appeal against the Commissioner’s decision.

Question 4

One key area of risk is missing limitation deadlines. In this case, the office has already missed one settlement date and is falling behind with preparation of sale and purchase matters. In addition, the office has a lot of workload and only one person is fully available to work on all office matters and this is totally overwhelming due to work load. This indicates that there are high-volume areas in the office and hence an area of risk because it can lead to missing limitation deadline and hence cause the clients to file claims. In addition, the office is not maintaining an efficient diary system and also there is no appropriate and regular update of the office matters16. Ron, the firm’s principal keeps all the information either in his head or in a pocket notebook he carries with him and there are no file lists in the office. The risk in the lack of an efficient diary system in the office includes that any critical date that the client initially notified and afterwards turned out to be inaccurate might not be changed and corrected and this may lead to adverse effects on the way the subject is handled as well as missing of the deadline.

This problem can be addressed by ensuring that the status of all matters can be identified clearly. This can be achieved by ensuring that a file summary sheet is attached to every file as this will ensure easy verification of dates and appropriate update of the diary system. In this manner, there is a very low likelihood of the limitation dates being missed17.

Another area of risk is that the office seems to be taking many cases without even carrying out initial risk assessments. Ron takes 20 matters per week and some of them might be matters that are very complex and some from even difficult clients. One potential risk that is likely to occur is that the office might lack enough time to establish the correct way of handling issues complex matter18.

This problem can be solved by ensuring that the firm undertakes initial risk assessment on the prospective clients and matters and take into account all generic risks allied to the type of work the clients want to be undertaken. This way, it is possible to identify very complex matters and difficult clients and thus decline to take such complex matters and difficult clients19.

Another area of risk is inappropriate reliance on support personnel. Ron who is the principal of the conveyance firm seems to rely completely on the newly licensed conveyancer who should be working under supervision of a full licensee. Instead, Ron is the one who has the responsibility of ensuring that there is proper management of the conveyance matters. A full licensee should review all the purchase and sale contracts, correspondences, and title search as well statement of adjustments to make sure that all these aspects are as required. For instance, a newly licensed conveyancer may take a note of tax arrears and assume the issue has been handled appropriately but actually the issue has not been handled accordingly. Failure to have such an issue is not flagged by a fully licensed and experienced conveyancer and buyer might end up with property whose back taxes are still unsettled and it might be too late to hold back funds since all transactions will be completed. Additionally, the newly licensed conveyancer might not have the required skills to tackle some complex matters and this may result to errors on the completed work and unsatisfied clients and this can even generate legal problems for the firm20.

This issue can be addressed by the firm’s principal ensuring that he reviews most of the matters and does not leave the newly licensed conveyancer to work on the matters unsupervised. Alternatively, Ron can recruit an experienced lawyer or an experienced conveyancer who will be supervising the new conveyancer and reviewing all the work completed by the newly incensed conveyancer21.

Finally, there is risk inadequate review of the office documents which can result to errors due to lack of comprehensive and careful review of the document. There is shortage of staff in the office and this is what has result to the excess workload and therefore there might not be time to review the documents. Inadequate review of documents can cause issues that arise from section 116 the Income Tax Act or unsettled taxes from being addressed and this can prevent the correct amounts being determined22. As mentioned earlier, this issue can be resolved by hiring more staff members in the office to ensure that there are enough individuals to review all documents23.

1McCarthy Frankie, Chalmers James and Bogle Stephen, Essays in Conveyancing and Property Law in Honour of Professor Robert Rennie (Open Book Publishers, 2015)

2Conveyancers Licensing Regulation 2015

3Australian Institute of Conveyancers

4Conveyancers Licensing Regulation 2015

5Hepbum Samantha, Australian Principles of Property Law, (Cavendish Publishing, 2006)

6Spincode Pty Ltd v Look Software Pty Ltd [2001] VSC 287

7Settlement Agents Code of Conduct (1982)

8Lawyers and Conveyancers Act 2006 

9Farrington v Rowe McBride & Partners [1985] 1 NZLR 83

10Glazebrook Susan, Conflicts Of Interest : The New Zealand Perspective, Surfers Paradise, 11 August 2006.

11Conveyancers Licensing Act 2003

12Legal Profession Act 2004

13Conveyancers Licensing Act 2003

14Conveyancers Licensing Act 2003

15Conveyancers Licensing Act 2003

16Abbey Robet and Richards Mark, A Practical Approach to Conveyancing, (Oxford University Press, 2015)

17Abbey Robet and Richards Mark, A Practical Approach to Conveyancing, (Oxford University Press, 2015)

18Burren Olivia, Risk Management in Solicitors’ Professional Negligence Claims, (St. Paul, 2004)

19Abbey Robet and Richards Mark, A Practical Approach to Conveyancing, (Oxford University Press, 2015)

20Burren Olivia, Risk Management in Solicitors’ Professional Negligence Claims, (St. Paul, 2004)

21Abbey Robet and Richards Mark, A Practical Approach to Conveyancing, (Oxford University Press, 2015)

22Income Tax Act 

23Burren Olivia, Risk Management in Solicitors’ Professional Negligence Claims, (St. Paul, 2004)