You must understand your responsibilities under laws that set rules for your business - for example, the Australian Consumer Law and Fair Trading Act 2012, which applies to all Victorian businesses.
As a conveyancer, it is also your responsibility to understand your legal obligations under the Conveyancers Act 2006.
The Rules of professional conduct for conveyancers are set out in the Conveyancers (Professional Conduct) Regulations 2018, effective from 26 May 2018.
The current Conveyancers (Professional Conduct and Trust Account and General) Regulations 2008 are available from the Legislation we administer page.
In summary, from 26 May 2018, a conveyancer must:
- act honestly, fairly and professionally with all parties in a transaction
- exercise reasonable skill, care and diligence in the performance of conveyancing work or carrying on a conveyancing business
- comply with the fiduciary obligations arising out of the performance of conveyancing work or carrying on a conveyancing business
- only accept instructions to perform conveyancing work if they are competent to perform the conveyancing work concerned
- only accept instructions to perform conveyancing work if they reasonably expect to be able to carry out the conveyancing work reasonably promptly
- act in the client’s best interest and according to the client’s instructions at all times unless it would be contrary to the Act or the Professional Conduct Regulations or otherwise unlawful to do so
- regularly communicate with a client to ensure that the client is kept up to date with the progress of the client’s matter
- ensure that oral instructions (other than those of a trivial nature) received from a client are confirmed with the client in writing as soon as possible after they are received
- use the prescribed forms to advise a client that they are, or will act, for more than one party to a transaction, or they do, or will, pay or receive a commission in respect of a transaction
- cease to act for all parties to a transaction if a conflict arises
- keep a written record of:
- all instructions received from a client and advice given
- all telephone conversations and enquiries made in connection with conveyancing work, and responses given
- comply with any undertaken given
- complete the conveyancing work they have accepted from a client unless otherwise agreed with the client; or they, or the client, terminates the service
- transfer all relevant documents and information to another conveyancer or law practice within 14 days of receiving a direction in writing from a client, if their account for legitimate work done to the date of transfer has been paid by the client
- transfer the whole or any part of a conveyancing business (including clients’ work in progress) to another conveyancer or a law practice, within 14 days of giving written notice of the client, unless otherwise instructed by the client
- ensure that any other business they conduct:
- does not impair or conflict with their duties to their client
- has separate and independent flies, records and accounts, and
- ceases if it conflicts with a client’s interests
- provide competent and independent advice to a proposed signatory to a document creating a loan or a security interest (loan or security document)
- advise a proposed signatory to a loan or security document:
- of those matters they consider appropriate
- that they do not profess any qualification to give financial advice
- to consult an accountant or other financial counsellor on any questions they have before signing the document
- obtain the borrower’s written acknowledgement of any independent advice given.
In summary, from 26 May 2018, a conveyancer must not:
- misinform or otherwise mislead or deceive any parties in negotiations or a transaction
- use or disclose any confidential information obtained while acting on behalf of a client unless the client authorises the disclosure, or it is permitted by law
- falsely represent to a client or prospective client that the service provider is independent of the conveyancer
- solicit clients or customers through advertisements or other communications that they know (or ought to know) are false or misleading
- include any matter (including any statement, slogan or logo) on stationery or business cards used in connection with conveyancing work that they know (or ought to know) is false or misleading
- enter into a undertaking that requires the co-operation of a third party
- act for the lender in the transaction to which the loan or security document relates, and
- provide advice to a proposed signatory to a loan or security document, if the interests of a signatory or proposed signatory conflict with their interests or the interests of any other client.
From 26 May 2018, breaches of rules relating to the following matters of the following rules have a fine of up to 20 penalty units for an individual and 120 penalty units for a company:
- soliciting through false or misleading advertisements or communications
- undertakings
- terminating conveyancing services and transferring conveyancing work or business
- conducting another business
- the independence of a licensee advising on loan or security documents
- advising proposed signatories on loan or security documents.