This article discusses when a solicitor conflict caretaker body corporate may arise and whether it is ethical for one solicitor to act for both parties.
Question: Is it ethical for a solicitor to act for both the caretaker and the body corporate committee?
Answer: It depends.
For me, the answer is ‘it depends’.
And what it depends on is what the issue is that the advice / acting relates to. We act for plenty of bodies corporate and caretakers in the same building. An issue that doesn’t present a problem (as an example) relates to by-laws. Everyone has an interest in making sure the by-laws are what they should be. In a matter like that, we act for the body corporate and not anyone else.
Where (to me at least) it is problematic, is where the caretaker and the body corporate’s interests aren’t necessarily aligned – say on the sale of the management rights. I personally think it is pretty hard to suggest that the same firm could act for a body corporate and a caretaker in relation to that and say they are giving completely independent advice to their respective clients. But that’s a personal view. In theory, it is lawful, provided both clients are aware of the fact the firm is acting for both of them and that if there is a conflict between them, both are referred elsewhere.
This post appears in the May 2023 edition of The QLD Strata Magazine.
Frank Higginson Redchip Strata Law E: FrankH@redchip.com.au P: 07 3193 0500