Code of Conduct: Conflicts of interest
We take time to consider the importance of understanding the principles of good faith and the duty advisers owe to their clients – above all other interests.
It’s critical to ask yourself from the outset of any client relationship two questions: To whom am I providing immigration advice? And to whom do I owe duties of loyalty and confidentiality? Together, these questions are your litmus test.
‘Conflicts of interest’ emerge where there are competing interests and duties between the adviser and visa applicant client, and the applicant and third parties (e.g. a supporting partner, or a New Zealand employer). For example, we’ve seen the common and avoidable scenario of a conflict between advisers and applicants where the visa applicant client, is unwilling to disclose certain information to INZ as part of their responses on the applicable INZ application form. Advisers have a ethical obligation not to submit false or misleading information to INZ. Hence, in instances where you are aware that your client is not being truthful with their responses, you need to raise this with your client and explain that you may not be able to continue to act on their behalf if false or misleading information was going to be submitted to INZ.
Conflicts do occur – but that needn’t be the end of a relationship in every scenario. As Clause 6 of the Immigration Adviser Code of Conduct (2014) explains, an adviser can proceed – but only when the client has given written consent that they understand the potential or actual conflicts of interest. Even where consent is obtained, we recommend that you use caution and if in doubt get professional advice. This is an ongoing obligation – if the adviser’s situation changes, the client must be informed. This is often where advisers get tripped up.
Of course, limits to all codes exist. If the adviser’s objectivity or the relationship of confidence, trust, and confidentiality would be compromised, an adviser cannot continue to represent their client. Again, this is a common enough place for advisers to lose their footing.
Our advice? Learn to recognise the potential for conflict – and have robust safeguards and risk management processes in place, such as tailored conflict clauses in written service agreements.
We have extensive experience in this field, and can assist with reviewing and preparing written service agreements, and drafting special clauses to address specific circumstances. And if you’re ever in doubt as to how to handle a particular conflict or potential conflict scenario, seek legal advice early.