Whether a solicitor ought to act for both the borrower and lender in residential conveyancing is an issue that refuses to go away.

Following an outcry from the profession, the Law Society's Council may have decided to put the issue on hold.

Others think the position should be given more serious consideration in the coming months.A recent case in the New Zealand Court of Appeal, Haira v Burbery Mortgage Finance and Savings Ltd [1995] INZLR (CA) 396, has created further interest in the matter.

In an earlier case, Clark Boyce v Mouat [1993] 2 WLR 1021, it was decided that the solicitor is not under a duty when accepting instructions to offer advice on the wisdom of the transaction.

This decision was made by the Privy Council and is of significant persuasive authority.

However, the more recent case in New Zealand took a different approach.

It said: 'We do not read the judgment in Clark Boyce v Mouat as holding that a solicitor will never be under a duty whether before or after accepting instructions to offer advice on the wisdom of the transaction.

Whether or not there is such a duty must depend on the circumstances as they develop and the terms of the retainer.

In Clark Boyce v Mouat, from the outset, the solicitor's intended role and retainer were limited.

Clearly that will not always be the case.'In the New Zealand case, the court held that there was a definite conflict between lender and borrower.

It was not possible for the same solicitor to represent both parties, even though it was a relatively straightforward mortgage transaction.

The court did not accept the advice that if there had been a separate solicitor the transaction would still have gone ahead.

'There is no basis in the evidence for deciding whether or not [the borrower] would have taken independent advice if recommended to do so.

It was a matter of conjecture and not inference.

And there is no basis in the evidence for a conclusion that, if [the borrower] had taken independent and competent advice, [the borrower] would have carried through the transaction in that way and suffered the same loss.

At some point questions would surely have arisen as to the risks inherent in any decision to go ahead.'Plainly these cases depend upon the facts.

However, it is on the question of fact that the issue is worthy of further consideration.

The most hazardous case where the same solicitor acts for both borrower and lender is if the property is a leasehold flat.

Many leasehold flats contain defects.

These defects are often reported to the borrower, but infrequently to the lender.

If a loan goes sour how far can the lender blame the solicitor for not reporting a defect, and for any consequent loss suffered by the lender? There are currently many cases going through the courts where solicitors are being sued for failing to advise the lender about defects in the lease or general problems surrounding the purchase of leasehold flats.

The defence of these cases is costing the profession money, particularly if the defence is unsuccessful.

Yet we still press onwards in the desire to represent both parties.

Surely the time has come to consider if representing both lender and purchaser -- if only in the field of leasehold transactions -- is really a good idea.

While the profession insists on carrying out this work at such a low cost and providing a bottomless pit of compensation by way of indemnity, no protest will come from the lender.

The fact, however, is that we should not be doing the work at this price and also providing the indemnity.The lender has every reason to expect both a good service and one that is guaranteed.

The best way this can be achieved for all parties is by separate representation.While I accept that there are some cases where the borrower and the lender can be represented by the same solicitor, these are not in the majority.

As the minority increases the issue deserves more serious consideration by the Law Society's Council because it has a direct impact upon the bottom line of modern day-to-day legal practice.