Conduct and service

Ensure instructions are agreed

Sometimes complaints not only illustrate the desirability of ensuring that simple precautions are complied with, but also what can be quite difficult matters of interpretation when the principle alone is considered.

In the case described here, what had to be decided was whether the solicitors had acted in a conflict situation.

However, that issue might not have arisen had the client been asked to confirm the solicitors' understanding of his instructions.

Originally, the solicitors acted in the purchase of a dwelling to be occupied by the purchaser (the son of the eventual complainant) and his partner.

The purchase was financed by a bank loan and a loan from the father, the latter secured by a second charge.

Two or three years later, the son approached the solicitors again, asking them to transfer the house into the joint names of himself and his partner.

This was to be done at the same time as they were to take a further advance on the property.

This, in turn, meant postponing the father's second charge.

The solicitors drew up the necessary deed and sent it with a letter of explanation to the father, asking him to sign and return it.

He did this without comment.

A few weeks later, the father wrote to the solicitors, demanding to know why he had not been told of the transfer of the property.

He wanted to know how this could have been done without his knowledge and consent.

The father maintained that his original instructions to the solicitors were that his son's partner was not to be able to obtain any interest in the property.

The solicitors denied this.

Two questions fell to be determined.

Firstly, what were the solicitors' instructions and, secondly, were the solicitors acting in a conflict situation?

There was nothing specifically in writing.

The solicitors maintained that their understanding was that the second charge was merely to secure the father's loan.

Their response to the father when he first raised his complaint clearly showed this was their understanding.

As there was no evidence either way and a straight conflict between the parties, the Law Society was unable to make a decision on the terms of the retainer.

However, the whole issue could perhaps have been avoided had the retainer been put in writing for the client and his agreement obtained.

The question of conflict was decided in the solicitors' favour.

The father had been a client at the time of the original purchase in the same way as the first mortgagees had been.

However, there was no solicitor/client relationship between the solicitor and father by the time of the further advance.

There was no knowledge the solicitors could have gained from their original instructions that would have put them in a conflict situation.

Every case before the adjudication panel is decided on its individual facts.

This case study is for illustration only and should not be treated as a precedent

Lawyerline

Facing a service complaint? Need advice on how to handle it? Contact Mike Frith at LAWYERLINE, the support service offered by the Office for the Supervision of Solicitors, tel: 0870 606 2588.