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Kooky
Builder of Shaka, the payment router that pays every agent their commission on closing date.
About Kooky and Shaka →In a country town with two law firms, it is quite possible that the family selling the farm and the family buying it have both used the same solicitor for thirty years. In a city, a developer's firm may be offered to every buyer in the building as a convenience. And in almost every sale, somebody recommends a lawyer to somebody else: the agent, the broker, a friend. Each of these situations raises the same question in a different form. Whose side is the lawyer on, and how would a client know?
The profession's answer is written down. Solicitors in Queensland practise under the Australian Solicitors' Conduct Rules, and three of those rules deal with conflicts: one about former clients, one about two current clients, and one about the solicitor's own interests. The Queensland Law Society, through its Ethics and Practice Centre, publishes guidance on how the rules apply, including a page on acting for both buyer and seller and a guidance statement on referral fees. This guide walks through what those documents say, what "informed consent" means in them, and what the rules require when a conflict appears halfway through a file. It describes a process. It is not legal advice.
Three rules, three kinds of conflict
The conduct rules treat a conflict as a clash of duties, and they sort the clashes by who is on the other end. The version published by the Queensland Law Society in July 2026 is titled the Australian Solicitors' Conduct Rules 2023, version 2, and records that it was amended by a notice made in 2026. Some of the Society's older guidance pages still cite the 2012 edition. The rule numbers discussed here, 10, 11 and 12, are the same in both.
Related readSolicitors' trust accounts and the fidelity fund in a property sale| Rule | The clash it covers | The basic position | What can make acting permissible |
|---|---|---|---|
| Rule 10 | A new client against a former client | Avoid the conflict where the former client's confidential information is material and detrimental. | The former client's consent, or an effective information barrier. |
| Rule 11 | Two or more current clients | Avoid conflicts between the duties owed to each. | Each client knows of the other and gives informed consent. |
| Rule 12 | The client against the solicitor's own interests | Do not act where duty to the client conflicts with the interests of the solicitor or an associate. | Only the specific exceptions written into the rule. |
A conveyancing file can touch all three. Rule 11 is the one in play when a single practice is asked to act for buyer and seller. Rule 10 arises when a practice that once acted for the seller is now asked to act for a buyer against that same person. Rule 12 is where referral payments, and any personal stake the solicitor has in the deal, are dealt with.
Rule 11, sentence by sentence
Rule 11 opens with a general duty. A solicitor and a law practice must avoid conflicts between the duties owed to two or more current clients, except where the rule itself permits. It is addressed to the practice as well as to the individual, which matters in conveyancing: putting the buyer's file with one solicitor and the seller's with another down the corridor does not, on its own, take the matter outside the rule.
The second part states the prohibition. A solicitor or practice must not act for two or more clients whose interests are adverse and where the duties owed to each conflict, unless the third part applies.
The third part is the gateway. Acting is permitted where each client is aware that the solicitor or practice is also acting for another client, and each has given informed consent to the solicitor or practice so acting. Both limbs must be met by both clients. Awareness without consent is not enough, and consent from one side only is not enough.
The fourth part deals with confidential information. Where a solicitor or practice holds information that is confidential to one client and could be to that client's detriment if used for another, the rule allows the work to go on only in defined ways: with each client's informed consent, or, for a practice, behind what the rule calls an effective information barrier.
Related readWhat a conveyancing solicitor does, from first call to settlementThe fifth part looks ahead to the moment the risk becomes real, and is discussed further below.
What the Law Society says about buyer and seller
The Queensland Law Society's Ethics and Practice Centre publishes a short page under the question "Should I act for both a buyer and a seller in a conveyancing transaction?" It is written for solicitors, but it is the clearest public statement of how the profession's own body reads the rule.
Its starting point is that there is no outright prohibition. The rules do not ban a practice from acting for both parties to a sale, provided the conditions in rule 11 are met: each client understands that the solicitor represents the other party, and each gives informed consent.
The page then spends most of its length on caution. It describes conveyancing as an area with a high risk of clients' interests being adverse. That is easy to see from the client's chair. A buyer wants the latest possible finance date and the fullest right to walk away; a seller wants certainty. If the building report turns up a defect, one client's best advice is to press for a price reduction and the other's is to refuse. A solicitor cannot give both pieces of advice with full loyalty.
On disclosure, the Society sets a high bar: explaining the risk of representing clients with adverse interests "requires conscientious and comprehensive candour". On the outcome if things go wrong, it is blunt. If an actual conflict arises, the page says, the solicitor will need to withdraw from representing both clients. It recommends that a practice have an effective system to identify and assess potential conflicts before taking instructions. It notes that professional indemnity insurance bears on the decision, saying that Lexon policies impose what it calls "a deterrent excess" where a practice has acted for both sides. And it closes with a rule of thumb for practitioners:
Related readWho may do conveyancing in Queensland, and why it takes a law firm"When in doubt, don't act"
That is the closing advice of the Queensland Law Society's ethics page on acting for both buyer and seller. The rules permit it with informed consent from both; the guidance treats declining as the safe course.
Read together, the rule and the guidance explain what clients usually experience in practice: a firm that already acts for one party to a sale will often tell the other that it cannot take them on, and suggest they find their own solicitor. That is the system working as designed.
Informed consent is more than a signature
The phrase "informed consent" carries most of the weight in rules 11 and 12, and the rules do not define it. The Law Society's guidance fills the gap. Its Guidance Statement No. 3, published on 30 June 2015, describes informed consent as resting on full and frank disclosure to the client of all information known to the solicitor which the client should know.
Three ideas sit inside that description. The first is that consent follows information, not the other way round. A client who signs a form acknowledging that the firm acts for both parties, without having been told what that could mean, has been made aware but has not been informed.
The second is that the information is specific to the risk. For two parties to a sale, drawing on what the buyer and seller page says, the explanation would need to cover the fact that the practice acts for the other side, the ways in which the two clients' interests could diverge, and the consequence if they do: that the practice may have to stop acting, leaving each client to engage someone new in the middle of a transaction with dates running.
The third is that timing and record matter. The same guidance statement says disclosure and consent should be evidenced in writing before the solicitor accepts instructions. The Society's commentary on rule 12 adds that whether a client truly gave informed consent is a question of fact in all the circumstances, and strongly recommends that solicitors advise clients to seek independent and suitably skilled advice. Writing is how a practice later shows what was said. From the client's side, a careful written explanation at the start is a sign of a practice following its professional guidance, not a sign that something is wrong.
Related readChecking a Queensland conveyancing lawyer before you engage oneA reader may fairly ask whether consent can cure everything. The rules answer no. Rule 11 allows consent to open the gateway for two current clients, but the guidance on buyers and sellers makes plain that once a real conflict exists the solicitor is expected to withdraw. And in one part of rule 12, on borrowing from clients, the Society's commentary says outright that no amount of client consent can cure a breach.
The solicitor's own interest
Rule 12 turns from two clients to one client and the lawyer. Its opening statement is that a solicitor must not act for a client where there is a conflict between the duty to serve the client's best interests and the interests of the solicitor or an associate of the solicitor, except as the rule permits. The definitions in the rules cast "associate" widely. It takes in partners, employees and agents of the solicitor, corporations in which the solicitor has a material beneficial interest, directors of such bodies, and members of the solicitor's immediate family.
In property work this is the rule that applies when the solicitor has a stake in the transaction itself: where the buyer is the solicitor's spouse, say, or the seller is a company in which a partner of the practice holds a material interest. The other client in such a deal is entitled to a lawyer whose only interest is theirs.
The rule goes on to deal with benefits. A solicitor must not do anything calculated to dispose a client or a third party to confer a benefit beyond fair and reasonable remuneration for legal services. And it sets a firm limit on borrowing: a solicitor must not borrow money, or help an associate to borrow, from a client of the solicitor or the practice, or from a former client who has shown continuing reliance on the solicitor's advice about investment. The exceptions are narrow and listed. They cover clients that are in the business of lending or holding money, such as an authorised deposit-taking institution or a trustee company, as well as an associate of the solicitor (with full written disclosure) and the solicitor's employer.
Related readConveyancing fees in Queensland: fees, outlays and your rightsRule 12 ends with a set of what it calls safe harbours: situations where a personal interest exists but the rule is not breached if stated steps are taken. Two of the four concern wills. The other two concern referrals, and they are the ones that matter in a property sale.
Borrower and lender
A purchase with a mortgage has a second relationship running beside the sale: the buyer borrows and the lender takes security. Buyers sometimes assume that the solicitor handling their purchase also looks after the bank's side, or the reverse.
The Law Society ethics pages read for this guide address buyer and seller by name. They do not contain a separate statement on acting for a borrower and a lender in the same loan. What can be said is what the rule itself says. Rule 11 is not written for any one kind of transaction. It applies whenever a solicitor or practice has two or more current clients, their interests are adverse and the duties owed to them conflict. If a practice were retained by both the borrower and the lender on the same loan, each would be a current client, and the gateway would be the same as for buyer and seller: each aware of the other, each giving informed consent, with the fifth part of the rule governing what happens if their positions pull apart.
The interests of a borrower and a lender are aligned for most of a transaction, since both want it to settle. They diverge on the terms of the security and on what happens if the borrower later cannot pay. Whether one practice acts for both in a given matter, or the lender uses its own representative, is decided by the lender and the practice concerned, and the general rule is the measure either way.
Related readBuying or selling without a lawyer: the DIY paper trail in QueenslandOne neighbouring situation has its own guidance statement. The Society's list includes No. 41, on a solicitor securing a client's fees with a mortgage over real property. There the solicitor personally becomes the lender, which places the arrangement on rule 12 ground: the solicitor's own interest on one side, the client's on the other.
Referral arrangements with agents
Most people find their conveyancing solicitor through a recommendation, and often the person recommending is the agent who has just sold the property. Nothing in the conduct rules stops an agent from suggesting a firm, or a firm from accepting the client. The rules become engaged when money or another benefit passes for the referral.
Rule 12 treats the two directions of payment separately. Under the safe harbour in rule 12.4.3, a solicitor may receive a financial benefit from a third party in relation to a dealing where the solicitor refers the client on, provided the solicitor advises the client that a commission or benefit is or may be payable, explains its nature, tells the client that they may refuse the referral, and obtains the client's informed consent. Under rule 12.4.4, a solicitor may pay a third party for referring a client, provided the payment or benefit is first disclosed to the client. The Society's Guidance Statements No. 3 and No. 4 cover paying and receiving respectively.
Guidance Statement No. 3 is the one that describes a solicitor paying a referrer, which is the shape an arrangement with an agent would take. It does not mention real estate agents or conveyancing specifically; it is written for every area of practice. The statement itself says it has no legislative or statutory effect and is offered as good practice endorsed by the Society's Ethics Committee. With that status noted, what it asks for is detailed.
| Subject | What the guidance recommends disclosing |
|---|---|
| The fact | That a financial benefit will be given for the referral. |
| The amount | The sum, or the method by which it is calculated. |
| The nature | Cash, cross-referrals, rebates, a success fee or a shareholding. |
| The arrangement | Its terms and structure, who receives the benefit and for what. |
| The client's cost | That the benefit will not be recovered from the client. |
| The client's choice | That the client may decline to enter the retainer. |
The statement recommends that disclosure and consent be recorded in writing before instructions are accepted.
The statement also notes that although rule 12.4.4 speaks only of disclosure, a solicitor's fiduciary duties independently call for informed consent. And it asks the solicitor to test the arrangement against a list of nine questions before entering it. Three of them show what the Society is guarding: "Is my independence compromised by the referral arrangement?", whether the solicitor will be free to advise the client without fear of offending the referrer, and whether the advice will be free of any bias caused by the relationship with the referrer.
Those questions describe the concern precisely. A buyer's solicitor sometimes has to give advice the agent would prefer not to hear: that the buyer may terminate under the building and pest condition, for example. The guidance exists so that a commercial relationship with a referrer never weighs on that advice, and so that the client knows of the relationship before deciding whom to engage.
The Society's commentary on rule 12 adds two points of law. Secretly receiving a commission can attract criminal responsibility under sections 442A to 442M of the Queensland Criminal Code, apart from any professional consequence. And Queensland statute bans referral payments outright in one field, personal injury claims, under the Personal Injuries Proceedings Act 2002. The commentary notes that South Australia has a statutory prohibition on conveyancing referral payments; it does not point to an equivalent Queensland ban for conveyancing, where the position rests on the disclosure and consent framework described above.
When a conflict emerges mid-transaction
A file can begin with no conflict at all and acquire one. A buyer and a seller who were content at contract may fall out over a late finance approval, a defect, a delay in settlement or a deposit. Rule 11.5 is written for that moment.
- Recognise the conflictThe clients' interests have become adverse in fact, and the duties owed to each can no longer both be performed.
- Apply the two conditionsThe practice may go on for one client only if the client it stops acting for gives informed consent and that client's confidences are not put at risk.
- Otherwise cease for allIf either condition fails, the practice stops acting for both and each client engages a new solicitor.
The two conditions are demanding in a sale. By the time buyer and seller are in dispute, the practice usually holds confidential information from each that bears directly on the dispute: what the seller would accept, how stretched the buyer's finance is. That is why the Society's buyer and seller page does not dwell on the possibility of continuing for one side. It tells practitioners plainly that if an actual conflict arises they will need to withdraw from representing both.
For the clients, withdrawal has practical effects that the rules do not describe but that follow from it. Each needs a new solicitor, who must read into the file while contract dates keep running. This is exactly the consequence that informed consent at the outset is supposed to have covered: a client who agreed to share a solicitor should have been told, before agreeing, that this is how a falling-out would be handled.
Rule 10 then continues to protect both of them. Once the practice has ceased, each is a former client, and the practice may not later act against either where it holds their confidential information that is material to the new matter and could be used to their detriment, unless the former client consents or an effective information barrier has been established.
What a client can expect to see
Put together, the rules and the guidance produce a recognisable pattern in a well-run conveyancing practice, and knowing the pattern helps a buyer or seller read what is happening.
- A conflict check when a new matter is opened, which is the "effective system" the Law Society recommends, and which is why a firm asks for the other party's name before it accepts instructions.
- A polite refusal, quite often, when the firm already acts for the other side.
- Where a firm does agree to act for both, a written explanation of the risk and of what happens if a conflict arises, given before the retainer starts, with consent sought from each client separately.
- Where a referrer is paid or a benefit is received, a written disclosure of that fact and its amount or basis before the client commits.
- If the parties fall into dispute, a letter saying the firm can no longer act.
None of these steps signals a problem with the firm. Each is the visible part of a set of duties that the profession has written for itself and that its Queensland body explains in public. A client who wants to read them can find the conduct rules and the guidance statements on the Queensland Law Society's website, and questions about a particular solicitor's conduct go to the Legal Services Commission, the body that receives complaints about lawyers in the state.
Kooky, from Shaka
Kooky edits Queensland Estate and builds Shaka, the payment router he made for Queensland property professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.
