Conduct and service

Unexpected conflictsThe dangers that can arise when a solicitor suddenly finds himself acting for two people from whom he is receiving contradictory instructions have been referred to before in this column.

The most common situation is where the solicitor acts for both husband and wife when the former matrimonial home is sold following a divorce.

Another frequent question is whether it is proper for a solicitor to have direct contact with a former client, where that client has raised a complaint after transferring instructions to another solicitor.

These issues featured in a matter recently dealt with by the Office for the Supervision of Solicitors.

KL & Co had acted for Mr N in divorce proceedings, during which it was agreed that the former matrimonial home should be sold, with KL & Co undertaking the actual conveyancing work for both parties.

Then Mr & Mrs N fell out about the division of the net proceeds.

It was agreed that they would, after completion, be put on deposit pending resolution of the dispute.

Unfortunately Mr N then found himself in need of some of his share of the potential proceeds to buy another property for himself.

On his instructions, KL & Co approached Mrs N, who at that stage was unrepresented, asking her to agree to release a specific sum.

The firm indicated that if she did not agree, Mr N would not proceed with the sale.

Although KL & Co took the wise precaution of advising Mrs N to seek independent legal advice, she still complained that KL & Co was acting in conflict.

Moreover, she alleged, the firm was improperly putting pressure on her to agree a proposal put forward on behalf of its other joint client.

Shortly afterwards, Mr N transferred his instructions to another firm to conclude the divorce and ancillary matters, including the house sale.

KL & Co rendered a bill to Mr N for the work it had done.

Mr N objected to the bill and indicated that he was unhappy with the service he had received.

KL & Co invited him to try to resolve the matters he had raised.

The result was that Mr N re-instructed KL & Co, which then found itself subject to a complaint from the other solicitors Mr N had consulted, alleging a contravention of principle 19.02 as set out in the Guide to the Professional Conduct of Solicitors, 1999, eighth edition.

The Compliance & Supervision Committee found a breach of principle 15.03, but, in the circumstances, contented itself with expressing regret at the conduct of the solicitor concerned.

It found no breach of principle 19.02, because Mr N had contacted the firm and it was entirely reasonable - indeed to be expected - that the firm should be able to try to resolve Mr N's complaints with him directly and it must be taken that a retainer would extend beyond termination for such purposes.

l Every case before the compliance and supervision committee is decided on its individual facts.

These case studies are for illustration only and should not be treated as precedents.