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INTRODUCTION May it please the court, my name ... My task today is to speak with Your Honour about the topic of lawyer-client conflict and the specific matter of Mahmoot and his clients. ISSUES Your Honour, Mahmoot has two complaints against him. The first complaint concerns Mahmoot failure to advis...

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INTRODUCTION 1. May it please the court, my name …

2. My task today is to speak with Your Honour about the topic of lawyer-client conflict and the specific matter of Mahmoot and his clients. ISSUES 1. Your Honour, Mahmoot has two complaints against him. 1. The first complaint concerns Mahmoot failure to advise Shani to obtain independent legal advice about the loan to P&I proprietary limited and the … 2. Second complaint being Mahmoot’s loan dealings with Kapil.

FIRST SUBMISSION Your Honour, I will begin my first submission by addressing the first complaint. Mahmoot had a financial and controlling interest in P & I proprietary limited and he was also well aware that Shani had no knowledge of this matter. Your honour, the query before the court is whether there was an act of professional misconduct when he did not advise Shani of his relationships prior to the loan deal involved with P&I proprietary limited.

1.0 State Mahmoots legal obligation as a solicitors to P&I Principle Your Honour, I make specific reference to section 9.1 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), it provides that a solicitor must not disclose any information which is confidential to a client and acquired by the solicitor engagement to any person who is not a solicitor or barrister. Application Based on the facts of the case, Kapil retained Mahmoot as a solicitor and it had been expressed that they had confided in each other. Therefore, Mahmoot was not to disclose any information which was confidential to Kapil to anyone including Shani.

Conclusion Given these circumstances, Mahmoot was acting in his fiduciary duties as a solicitor for Kaphil by not disclosing this information. However, it is still his legal obligation to then advise Shani to seek independent legal advice if there is such a constraint in disclosing this information.

2.0 Advise Shani to seek independent legal advice Principle Your Honour, this takes me to the case of Occupational Division Council of the Law Society of NSW and Low where it had mentioned about the case of Law Society of NSW and Harvey, particularly the judgement of Justice of Appeal Hope that “if “the interest of the client and of the solicitor generally conflict, the solicitor must insist that the client have independent and informed advice. Application Based on the facts of the case, Shani had complained about Mahmoot that he was compelled to advise Shani to obtain independent legal advice about the loan to P & I proprietary limited. However, Mahmoot had not provided that advice. Conclusion Therefore, Your Honour, Mahmoot’s failure to exercise his fiduciary duties as a solicitor for Shani renders him to professional misconduct. As any prudent lawyers would insist that the client receive independent legal advice on the matter, this is in accordance to page 228 of the Textbook (7th ed).

If there are no further questions Your Honour, I will move onto my second submission.

SECOND SUBMISSION Your Honour, my second submission will be addressing the second complaint. Mahmoot retainer with Kapil consisted of providing legal services in matters such as loan agreements. He had obtained a loan from Kapil even when he was well aware of the proper agreements in place. Your Honour, the query before the court is whether within this timeframe there was an act of professional misconduct in his loan dealings with Kapil.

1.0 Whether the loan was personal or a commercial loan Rule Your Honour, I make specific reference to the case of Law Society of New South Wales and Harvey, particularly the judgment of Chief Justice Street where “a solicitor who does act as a loan broker ought to regard himself as precluded, by the very relationship between him and his client, from commending to his client a loan to a company, or for a venture, in which the solicitor has an interest”. Application However, based on the facts of the case, Mahmoot expressed that the loan he had received from Kapil was not an investment loan and was not an action of commercial character. But rather Kapil wanted to lend the loan as an act of friendship. Mahmoot did not solicit the loan either and that he was not stressed financially nor did he have any particular need for the loan.

Conclusion Given these circumstances, Mahmoot had no intention to use Kapil’s money for any other reasons but rather to accommodate the generous wishes of Kapil. Although, if Mahmoot was presumed in a better position than Kapil, he should have taken the steps to solicit the loan properly.

2.0 The legal practices carrying out these loan dealings Principle Your Honour, this takes me to section 12.3 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) where it states a solicitor must not borrow any money from a client of the solicitor, unless there the solicitor was 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. Application Based on the facts of the case, Mahmoot had obtained a loan of $10,000 from Kapil which was eventually repaid. However, it was the fact that there was no formal agreement encompassing the terms of the loan agreement and the only document was a receipt. Conclusion A prudent lawyer must disclose to a client the terms such as the risks attached to the loan, the lawyer’s own personal financial position and the security for the loan, in accordance to page 232 of the Textbook (7th ed).

Mahmoot failure to exercise these fiduciary duties as a solicitor renders him to professional misconduct as it is difficult to see how Kapil can be adequately protected without having a formal agreement in place.

CONCLUSION

Your Honour, in finding a suitable consequence for Mahmoot, I make reference to the case of Occupational Division Council of the Law Society of NSW and Low where the lawyer was found guilty of professional misconduct based on the facts that he had borrowed the amount of $100,000 from his client. With this, it was brought to the court that the lawyer breached section 12.3.1 of the Legal Profession Uniform Law Australian Socilitors’ Conduct Rules 2015 (NSW). Your Honour, this is similar to Mahmoot’s case where there had been a breached in his fiduciary duties to both Kapil and Shani and this unethical behaviour could been seen as an act of professional misconduct . If there are no further questions your Honour, that concludes my submissions....