Question of ethics

Q My seller client has instructed me to send contracts out to two interested parties.

Is this a contract race?

A Not necessarily.

R.6A of the Solicitors' Practice Rules 1990 applies.

In such circumstances the seller's decision to 'deal' with more than one prospective buyer must be disclosed to each.

The rule does not impose any obligation to exchange with the first buyer to deliver a signed contract and deposit.

It will be a matter of fact and law whether your client has entered into any contractual obligation to exchange with the buyer who is 'first past the post'.

Q I acted for a husband and wife when they came to me five years ago to prepare mirror wills.

The wife has now come to see me again behind the husband's back wanting me to prepare a fresh will which is substantially different from her original will.

Can I act for her?

A Your original retainers with the husband and wife are at an end, so there is no duty on you to disclose the wife's new instructions to her husband or to safeguard his interests.

You would only be prevented from acting for the wife if at some time you have acquired confidential information in the course of acting for the husband and this information is unknown to the wife and would be relevant to the wife's new will.

Of course, if you go ahead and agree to act for the wife, you will have to advise her whether as is normally the case, she is free to alter her will as she wishes or whether she is bound by the doctrine of mutual wills.

l Question of ethics is compiled by the Law Society's professional ethics guidance team.

Send questions for publication to Austin O'Malley, the Law Society, Ipsley Court, Berrington Close, Redditch B98 0TD; DX 19114 Redditch; tel: 020 7242 1222.