Are derivatives still worth the risk?

Conveyancers are constantly being told that they must adopt a commercial attitude to their work and must no longer look upon conveyancing as their bread and butter.

Most solicitors are happy to do this but Practice Rule 6 inhibits solicitors from being properly commercial.

The word “conflict” rears its ugly head and solicitors who would like to be effective and commercial are being prevented from doing so. We are told that the practice rule gives us the moral high ground, that it matters to lenders, to the public and to government that we are bound by that rule.

If it is so important why is it not enshrined in government legislation which would prevent anybody from acting in a conflict situation?

Licensed conveyancers act for all parties in a chain, whether or not they are existing clients, and act for all the lenders involved at the same time. The public approves because it makes life simpler, lenders clearly do not object and, therefore, licensed conveyancers take work away from the profession. We cannot compete with that.

Chancery Lane cannot stop licensed conveyancers doing this and there is no reason why they should voluntarily change a system of work which operates to their advantage. If acting on both sides of a conveyancing transaction was intrinsically wrong why has the Government not stopped it?

The answer, I suggest, is that there is nothing wrong with acting for both parties unless an actual state of conflict arises. The older members of the profession (and I am one) can remember the days when we acted on both sides. I can recall very few occasions when a conflict actually arose and then we knew exactly what had to be done – we sent both clients to different solicitors.

Is Chancery Lane suggesting the standards of the profession are so low that solicitors are unable to see conflict when it arises? Chancery Lane cannot continue to preach the gospel of being commercial to solicitors and then prevent them from being so.

Common sense suggests that the Government is not going to intervene to change the practices of licensed conveyancers.

I believe it is about time Chancery Lane brought these rules up to date so that they work in the real world. If not, there may be a suggestion that the rule could be taken elsewhere and tested on the grounds that it is a unlawful restraint of trade.

I hasten to add that this is not some theoretical matter. One of my members has come to me about this situation as he has lost work because of it. One of his existing clients went to the licensed conveyancer because the licensed conveyancer could act for the other side as well.

Gerald Funnell

Funnell & Perring

192-3 Queen's Road

Hastings

East Sussex TN34 1RG.