Question of ethics

Q I am about to complete the sale of a client's property and he has told me not to pay the estate agent's fees because he is dissatisfied with their service.

Do I have a professional duty to pay such fees?

A Not normally.

You may be thinking of the professional obligation to pay an agent or expert you have instructed (see Principle 20.01 on page 363 of the Guide to the Professional Conduct of Solicitors, 1999, eighth edition).

If you have promised to pay the estate agents their fees, you will have to honour it.

If the undertaking was given on your client's instructions, your client cannot countermand those instructions because you have changed your position by giving the undertaking.

On the other hand, if you have given an undertaking without your client's authority, you could not ignore the client's instructions and you are likely to have to pay the fees from your own resources.

On the assumption that you did not instruct the estate agents, your duty is to comply with your client's instructions and not pay the estate agents.

It will be for the estate agents to decide whether to institute proceedings against your client.

Please note

The Solicitors' Publicity Code 2001 replaced the Solicitors' Publicity Code 1990 on 16 November 2001.

It also repealed practice rule 11 (names used by a firm).

The new code requires all firms to put 'regulated by the Law Society' on their notepaper.

Practitioners can postpone this until 1 January 2003 but only if they continue to comply with the 1990 Code and the old Practice Rule 11.

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.