Question of ethics

Q I am acting for a married couple who were intending to sell their home which they held under a joint tenancy, and emigrate to Canada.

While the sale was under way, the clients split up but they decided to go ahead with the sale.

Both were friendly with the estate agent who acted on the sale.

However, the agent has 'sided' with the husband and the wife has subsequently instructed me not to pay the sale commission following completion which took place recently.

The husband says his wife is being vindictive and wants me to pay the commission.

What is my position?

A You have no professional obligation to pay the estate agent assuming that you have not undertaken to do so.

You have a joint retainer and, therefore, you need the joint instructions of the clients to pay the commission.

By the same token, you need joint instructions to distribute the proceeds of sale.

If the commission is unpaid, the estate agent will have to consider his legal remedies against your clients.

Be aware

The transitional provision allowing private practitioners in England and Wales to postpone putting 'regulated by the Law Society' on certain items of stationery expired on 31 December 2002.

This statement must now appear on all letterheads and fax headings in accordance with the Solicitors' Publicity Code 2001.

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The professional ethics lines are open for general enquiries between 11am and 1pm and 2pm and 4pm.

Please note that the lines are less busy in the afternoon.

We do take emergency calls outside these hours, tel: 0870 606 2577; fax: 020 7320 5897.

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