The Practical Lawyer

Home
About
CPD
Subscribe
Contact

Conveyancing – conflicts

Each month we consider conduct and practice issues relevant to busy practitioners. This month we will consider some of the less obvious conflicts which might arise in a conveyancing matter.

The current 2011 Code of Conduct states that a solicitor must not act ‘if there is a conflict, or a significant risk of a conflict, between two or more current clients’ (unless the matter falls within the ‘competing for the same objective’ or ‘substantially common interest’ exceptions – which tend not to apply to conveyancing matters).

Firms are required to have effective systems and controls in place to enable them to identify and assess potential conflicts. The key here is to ensure that all conveyancing staff are properly trained to spot potential conflicts.

Examples of such conflicts might be acting for:

  • a non-owning occupier and the seller;
  • parents gifting a deposit on a purchase and the buyer/child;
  • a lender and borrower in a private mortgage; or
  • a divorcing couple on a sale.

The problem with these situations is that often families are involved and all parties will visit the conveyancer – all assuming that the conveyancer is acting for them. The potential for conflict in these situations should be recognised and avoided.

In all of the above examples, requiring the other party to take their own independent legal advice would be best practice.

We reported in our April 2019 edition (p31) that the SRA will introduce the new Standards and Regulations on 25 November 2019, which will replace the 2011 Handbook. The new Code of Conduct for solicitors and firms repeats the requirement that a solicitor should not act in relation to a matter or a particular aspect of it if they have a conflict of interest or a significant risk of such a conflict in relation to that matter or aspect of it.

The new regime contains less guidance than the 2011 Code. However, it is reasonable to assume that the SRA will not be relaxing its requirements and thus practitioners will still need to be as vigilant to these conflicts post November 2019.

Practitioners are entitled to take differing views as to the applicability of the conflict provisions to their clients. However, any decision to act where there is a significant risk or an actual conflict must be properly considered and recorded on the file and the reasons for acting clearly specified. If the firm concludes that it can act for all parties, the risks must be explained in writing to the clients and their written consent obtained.

Merely having separate fee-earners in separate offices acting for the two parties may not be enough. What are the arrangements when fee-earners are on holiday or ill? Is there a chance that one fee-earner (or a locum) might have access to the opposing file? This would create a ‘significant risk’ of a conflict and the instructions should be declined.

Whether pre or post the new Standards and Regulations, in all cases, the SRA will need to be persuaded that acting for all parties is in the best interests of all clients and that truly independent advice can be given. Best practice would demand that the firm does not act in these situations to ensure that a conflict is avoided.

 

Most-read articles

Probate fees – increase delayed
Thursday, 09 May 2019
We reported in the April 2019 edition (p34) on the increase of probate fees which was due to come into effect in April 2019. Read more...
VAT Order – construction services
Thursday, 09 May 2019
The VAT (s55A) (Specified Services and Excepted Supplies) Order 2019 comes into effect in relation to supplies made on or after 1 October 2019. Read more...
Brexit – impact on solicitors
Thursday, 09 May 2019
The Law Society has issued guidance for solicitors on the impact of the postponement of the UK’s departure from the EU. Read more...
RTA claims – no lawyers
Thursday, 09 May 2019
The Gazette reports that the MoJ has issued a consultation as to how to create an IT platform to enable unrepresented litigants to progress their own claim. Read more...
CFAs – no automatic 100% success fee
Thursday, 09 May 2019
In RTA claims, may firms routinely set a 100% success fee and claim the maximum limit of 25% of total damages. Read more...
T’s failure to respond – not a refusal of access
Thursday, 09 May 2019
The UT has held that T’s failure to reply to a letter from L requesting access to the property did not amount to a refusal of access. Read more...
MEES non-domestic rentals – reminder
Thursday, 09 May 2019
The MEES regulations are designed to tackle the least energy efficient properties in England and Wales and the Regs establish a minimum standard of EPC band E for domestic and non-domestic private... Read more...
‘Highway’ – no single meaning
Thursday, 09 May 2019
The SC has recently clarified the meaning of a highway. Read more...
Procedure – divorce
Thursday, 09 May 2019
Divorce practitioners may be particularly interested in the background to a recent case setting out the administrative processes and procedures by which errors in divorce proceedings are picked up... Read more...
EU citizens – right to work checks
Thursday, 09 May 2019
The government has issued guidance on employing EU, EEA and Swiss citizens, and their family members, after Brexit. Read more...

Resources

IAG International
www.totallylegal.com
Join the IBA now!
MSI Global Alliance
In House Lawyer