Expert v Advocate
Expert - a person who has relevant specialised knowledge based on that person’s training, study or experience.
Advocate - a person who puts forward a case on someone else’s behalf or a person who publicly supports or recommends a matter.
The purpose of this Member Reminder is to clarify issues with regards to the implications for Members in managing their professional responsibilities as adviser, advocate and expert. Members are reminded that they may not act as both an expert and an advocate.
This is particularly in response to the NSW Land Acquisition (Just Terms Compensation) Amendment Act 2016. Section 10A of the amended Act includes “Minimum period of negotiation for acquisition by agreement before initiation of compulsory acquisition process…
(2) The authority of the State is to make a genuine attempt to acquire the land by agreement for at least 6 months before giving a proposed acquisition notice.”
In some cases, a Valuer may carry out an initial valuation or consultancy. If the Valuer then applies their expertise for the client eg liaising with the authority, reviewing options, or any other communication, this is likely to involve advocacy. When the property practitioner does this, they are acting for the benefit of the client and not the court. The code of conduct permits Valuers to act as advocates, but if they do, they are prevented from acting as experts in the same matter.
If a member has acted as an advocate, any request to act as an expert should be declined and it be recommended that the instructing party seek advice from an independent Valuer or firm. Note, this also precludes property practitioners working for the same firm as the advocate from acting as an expert.
If you have any comments or feedback, please do not hesitate to contact the API through firstname.lastname@example.org. The API is focused on promoting best practice within the property industry and welcome feedback to help this goal be achieved.