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Residential property specialist Can a solicitor act for both the buyer and seller in conveyancing?
This is a question that crops up pretty regularly – and I quite understand why. From a client’s perspective, if one solicitor acted for both parties, surely there’s scope to speed up the conveyancing process by:
- removing the need for two solicitors to review and deal with the same documents and
- not losing time in communication between solicitors.
There might also be an overall saving in legal costs. However, as a general rule, this practice is not allowed, although it’s permissible if specific criteria are satisfied.
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What is a conflict of interest?
Both the Law Society and Solicitors Regulation Authority have strict rules for solicitors regarding ‘conflicts of interest’. This ensures that your solicitor always acts in your best interests, i.e. puts you first. If the same solicitor acts for both parties, there is a strong chance of a conflict of interest arising. This might be over something as simple as a difference of opinion over the proposed completion date.
Criteria for a firm acting for a buyer and seller
Exceptionally, on meeting certain criteria, the same firm can act for the seller and buyer. But this is only if both parties have a substantially common interest or they are competing for the same objective. In these circumstances, both buyer and seller must provide their consent for the firm to continue to act on the sale and purchase. Also, this is only permissible where:
- both parties are already longstanding clients of the firm; and
- where it is clear that both parties are fully aware of the risks.
And even then, the same solicitor cannot act for both buyer and seller. Each solicitor must also be subject to separate supervision. Doing so ensures they are not privy to personal information about the other party to which they would not usually have access if a different firm of solicitors represented that party.
But that’s not all…
Where the same firm is acting, each party must understand and accept that their solicitor cannot negotiate on their behalf. This means that any of the issues that commonly arise regarding:
- the survey,
- purchase price,
- fixtures, fittings and contents,
- completion date and other timescales,
must be left to the estate agents, who must be made aware of the potential conflict of interest.
A conflict also arises if a party asks their solicitor to withhold information which could have a detrimental effect on the conveyancing transaction.
What happens if a conflict of interest occurs?
Should a conflict of interest occur, both solicitors must cease acting immediately. Their clients must then instruct new solicitors, inevitably resulting in delay – and greater cost.