Could acting for both sides change the nature of the conveyancer’s role?

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The Gazette reported recently that the Legal Services Consumer Panel, which is the body set up by the Legal Services Board to advise it on what is in the best interests of consumers, is generally in favour of letting one solicitor act for both buyer and seller in a conveyancing transaction.The Solicitors Regulation Authority is proposing that this should be allowed, provided there is not a ‘substantive’ conflict of interest. It is consulting on the issue at the moment.

From the client’s perspective, the potential benefits are obvious. How much time is spent passing correspondence between the two lawyers? That would be eliminated in one fell swoop and would surely lead to speedier transactions.

Is there any danger to the consumer? Given that a solicitor conducting a conveyance is a highly qualified member of a regulated profession, there shouldn’t be. And, after all, licensed conveyancers are already allowed to act for both sides, without any apparent problems.

But that is not to say that a solicitor acting for both parties will necessarily find the experience plain sailing. It will involve a change of mindset.

At the moment, a solicitor’s primary objective, within their professional rules of course, is to push forward the interests of their client. If, taking an example from my own recent conveyance, a search indicates that chancel repair insurance is needed on a property being purchased, the first thing the purchaser’s lawyer will do is to try and press the vendor to pay the premium. But what if the vendor is also a client? The lawyer will need to take on a new role of assisting the two parties to reach a sensible solution.

When tricky issues arise, instead of approaching the problem from their usual purchaser or vendor perspective, solicitors may find themselves acting as something of a mediator between the two sides. But they will have to tread a very careful line between the two sides.

Precisely how the new rule would operate is still uncertain. Which party would instruct the lawyer, for example? I imagine that the recommendation of an estate agent, who is already in a sense acting for both parties, would be likely to play an important role – and, of course, a bigger fee at stake for the lawyer is bound to drive up the cost of the referral.

Potentially, a solicitor acting for two sides could also be instructed on the related sales or purchases of both sides, leading to a bonanza of fees.

Acting for both parties will be a significant gain for firms that win that work, but looking at the bigger picture, there might be a downside for the profession. If using just one solicitor per transaction becomes a popular trend, it could contribute to a reduction in the overall number of conveyancing solicitors that the market needs, in a section of the profession that is already shrinking due to the poor housing market.

Competition for the prize of acting for both parties will be strong, but the fees gained will inevitably be less than the sum of what would have been charged by a separate lawyer for vendor and purchaser. The consumer will be the real winner.

And of course there is one more, slightly tongue in cheek, reason why acting for both sides could prove to be a bad move. Conveyancers are more than used to taking flak from disgruntled clients. But if they act for both parties, they will no longer be able to blame any delays on the other side’s solicitor.