APC - Conflict Flashcards
What is a conflict
Arises when a member or firm is threatened due to a conflict between two clients
If threatened by conflict, must not advise or represent unless its legal and obtain written consent
What is a dispute and why do they happen
Where two or more parties disagree on something. Happens when there is negligence or contractual obligations are not met
Tell me what you understand about conflicts if interest?
When someone is in a position of trust has competing personal or professional interest making it difficult for then to fulfil their duties impartially
How could COI be managed internally where to separate departure instructed by the same client?
1) ensure exclusivity of staff to each department
2) separate communication lines
3) separate work locations/data storage
4) sign NDA with staff
5) monitor business relationship
If the client was insistent that you continued despite an existing COI, how would you proceed?
1) check clients understanding of COI
2) make them aware of reduced impartiality
3)seek written consent
4) talk through information barriers
5) agree formally in writing with client
What RICS guidance is available for conflicts?
RICS Global PS on Conflicts of Interest, Eff Jan 2018 (Applies for potential conflict)
RICS PS: Conflicts of Interest – UK Commercial Property Market Investment Agency, Eff Jan 2018
Applies when a conflict has been identified.
What is the aim of RICS Global PS on Conflicts of Interest, Eff Jan 2018
Ability to advise/ carry out duties unhindered objectively and independently
POC
What are the types of conflicts of interest?
Party Conflict – working on the same project/instruction but for two separate clients
Own Interest – when the duty to act on behalf of a client is compromised by your own personal interests.
Confidential information conflict – when you have a duty to present information to one client but have a duty to another client to keep that information confidential.
CWC
How would you handle a conflict of interest?
3 Stepped process
1) Conflict avoidance
2) Written advice to both parties requesting written consent
3) Conflict management - ensuring information barriers are implemented. Make sure to receive written confirmation
What is the your employers protocol for dealing with a conflict?
1) Fill out form send to line manager
2) Unit head informed
3) Stored within conflict register
DMI
What types of conflict are mentioned in the RICS agency guide?
1) Dual agency - acting for both parties and banned in 2018
2) Multiple instruction - competing contractual relationships simultaneously with several buyers. Exclusive basis - must inform other parties. Non Exclusive - must implement information barriers.
Incremental Advice (Similar to dual agency)
Agent is approached by another party to provide advice related to the purchase or disposal that is incremental to its existing instruction
What is an expert witness and who do they act for?
Surveyor providing evidance to a judicial body. Overiding Duty of care is to jusdiciary/court.
What are the choices if a dispute cannot be resolved?
1) Litigation
2) ADR
What are the three pillars of dispute resolution? Who introduced these terms? Give examples of each.
1) Negotiation
2) Mediation/ Conciliation non binding decision
3) Adjudication is a judge or arbitrator determining a decision.
What are the three pillars of ADR?
- Mediation
□ Neutral mediator who facilitates discussions and explores a solution
□ Confidential and informal
□ ‘without prejudice’
□ Not legally binding decision - Arbitration
□ Appointed in a quasi-judicial role in accordance with Arbitration Act 1996
□ Parties bound by decision
□ Fast, cost effective
□ Surveyors can act as an arbitrator if passed the Chartered Institute of Arbitrators exams
□ PACT (Professional Arbitration Court Terms) used for lease renewals - Independent Expert Determination
□ Independent expert appointed by both parties (or president of FRICS)
RICS GN: Independent Expert Determination, 2016
