12. Conflict concerning a solicitor's own interests

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. 

12.2        A solicitor must not do anything:

(a)          calculated to dispose a client or a third party to confer on the solicitor, either directly or indirectly, any benefit in excess of the solicitor’s fair and reasonable remuneration for legal services provided to the client, or

(b)          that the solicitor nows, or ought reasonably to anticipate, is likely to induce the client or third party to confer such a benefit and is not reasonably incidental to the performance of the retainer.

12.3        A solicitor must not borrow any money, nor assist an associate to borrow money, from:

12.3.1     a client of the solicitor or of the solicitor’s law practice; or

12.3.2     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 is:

(i)      an Authorised Deposit-taking Institution;

(ii)     a trustee company;

(iii)     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;

(iv)    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

(v)     the employer of the solicitor.

12.4        A solicitor will not have breached this Rule merely by:

12.4.1     drawing a Will appointing the solicitor or an associate of the solicitor as executor, provided the solicitor informs the client in writing before the Will is signed:

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

(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

(iii)     if the solicitor or the solicitor’s law practice or associate has an entitlement to claim commission, that the client could appoint as executor a person who might make no claim for executor’s commission.

12.4.2     drawing a Will or other instrument under which the solicitor (or the solicitor’s law practice or associate) will or may receive a substantial benefit other than any proper entitlement to executor’s commission and proper fees, provided the person instructing the solicitor is either:

(i)      a member of the solicitor’s immediate family; 

(ia)    a member of the immediate family of the solicitor’s spouse, or

(ii)     a solicitor, or a member of the immediate family of a solicitor, who is a partner, employer, or employee, of the solicitor.

12.4.3     receiving a financial benefit from a third party in relation to any dealing where the solicitor represents a client, or from another service provider to whom a client has been referred by the solicitor, provided the solicitor advises the client:

(i)      that a commission or benefit is or may be payable to the solicitor in respect of the dealing or referral and the nature of that commission or benefit;

(ii)     that the client may refuse any referral, and 

the client has given informed consent to the commission or benefit received or which may be received.

12.4.4   acting for a client in any dealing in which a financial benefit may be payable to a third party for referring the client, provided the solicitor has first disclosed the payment or financial benefit to the client.