A common trap
It is common for a solicitor to act for both husband and wife in the sale of the former, jointly owned matrimonial home during a divorce.
It is a practical arrangement, but fraught with potential problems.
As far as the sale is concerned, the solicitor is acting for both parties.
Their interests are basically opposed, so the solicitor must avoid breaching the conduct rules.
In this illustrative case, the solicitors had acted for the wife, the ancillary aspects of which were concluded by a consent order which authorised the sale of the house.
The proceeds were to settle the mortgage, costs, agents' commission and the parties' joint unsecured liabilities.
Any balance was to be used to buy a house for the wife.
The order, which provided for the wife's solicitors to have conduct of the sale, was on the basis of the husband's undertaking to discharge various liabilities, including the mortgage, until sale, an undertaking with which he was unable to comply.
After the consent order was made, the husband gave notice of acting in person.
When the sale was completed, the mortgage was repaid and the solicitors used the balance firstly to complete the contemporaneous purchase of the replacement property for the wife, who had been their divorce client.
This left insufficient monies to pay off all the unsecured liabilities.
The matter was complicated by the fact that the conveyancing was dealt with by the conveyancing department, not the divorce section that had handled the proceedings leading to the sale.
Furthermore, the acting personnel were unqualified and the fee-earner dealing with the sale informed the husband that all liabilities had been cleared.
The husband complained.
The solicitors found themselves under investigation for acting in a conflict situation, using their position to take unfair advantage of the husband, misleading him and failing to supervise their fee-earners properly.
It should always be remembered that both husband and wife are the firm's clients for the purposes of the sale.
Both should be treated alike, each being given rule 15 information, the same advice and that any instructions are taken from both.
If a difficulty arises, there is a temptation to favour one's divorce client.
Indeed, the client will expect to be favoured.
This is a clear example of the need to manage a client's expectations at the outset.
In this case, several fee-earners were involved.
There was no finding of misconduct, but an order to pay the client 250 compensation was made.
This case was judged on its particular circumstances.
It should not be used as a yardstick for assessing the likely outcome of future complaints involving this issue.
Every case before the adjudicator is decided on its individual facts.
This case study is for illustration only and should not be treated as a precedent
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