Conveyancing conflict part II

I could not let Gerald Funnell's letter (The Lawyer 4 June) over conflict in conveyancing go unanswered.

In reply I would point out:

Unless and until the Law Society's own rules completely restrict solicitors' ability to act for more than one party in all circumstances, then attempts by the Law Society at persuading the Lord Chancellor to restrict the rules of licensed conveyancing will be fruitless.

Solicitors do not always identify when a conflict of interest arises. R v Hermer (CA, February 1996) is a classic example of this. I understand licensed conveyancers are also guilty of this from time to time.

Given the number of cases on conflict of interest, it is doubtful the society could persuade the Master of the Rolls to approve a rule allowing solicitors to act for all parties in a transaction.

The Council for Licensed Conveyancers has said the largest area of claims arises from licensed conveyancers' ability to act for more than one party in a transaction. As a result they have considered with their insurers the possibility of restricting the terms on which licensed conveyancers can carry out conveyancing transactions.

That a conflict can arise has been recognised by the lender client. The lenders increasingly use their instructions to ensure solicitors do not undertake conveyancing for buyer and seller as well as lender and borrower.

Easing rules for licensed conveyancers will afford them little competitive advantage in the future because there is a growing consumer awareness of the need to instruct someone who has their interests at heart and lenders increasingly impose restrictions on conveyancers to ensure they are not exposed to a conflict situation.

Richard Hegarty

Chair of property and commercial services committee

Hegarty & Co.