Can buyers and sellers use the same conveyancing solicitors?

If you are about to become involved in a property transaction as either a buyer or a seller, you might be wondering whether it is possible to speed up the process and save some money by using the same conveyancing solicitor as the other party involved. It stands to reason that doing so would aid communications between buyer and seller with the terms of sale and purchase being recorded at the same time, avoiding duplicity and time wasting.

Whilst in theory, buyers and sellers using the same conveyancing solicitor can sound like a good idea, in practice it can create more problems than it solves. Here, we look at some of the reasons that one conveyancing professional working for two sides of the same property transaction is not a good idea.

Can buyers and sellers use the same conveyancing solicitors?

Once upon a time, it was common practice for the solicitor acting on behalf of the buyer to also act for the seller in conveyancing transactions. However, following frequent problems and complaints by customers, arising from solicitors acting for both parties, the employment of separate solicitors by each has become far more commonplace. With today’s technological ability to search online for conveyancing solicitors, it is simple to find a fully qualified and regulated professional to take care of your conveyancing needs within minutes.

In October 2011, the Solicitors Regulation Authority (SRA) published their Code of Conduct for solicitors which offered better protection for home buyers and sellers through more independent legal advice. These codes were created because buyers and sellers using the same conveyancing solicitor are unlikely to receive the best level of personal care and advice that would otherwise be received, since a conflict of interests is a distinct probability. There are now regulations in place that specify that a conveyancing solicitor can only act for both parties in specific and relatively uncommon circumstances.

What is a conflict of interest in conveyancing?

There are two types of Conflicts of Interests:

• The first is an ‘Own Interest Conflict’, where a conveyancers duty to act in your best interest conflicts with their own interests. This could be a financial or personal interest.
• The second, which more commonly arises during conveyancing transactions, is the ‘Client Conflict’ held in Outcome 3.5. This is any situation where the conveyancing solicitor carries out separate duties in the best interests of two or more clients in relation to the same or related matters but those duties conflict or there is a significant risk that they will conflict.

What are the rules regarding conflict of interests and conveyancing?

Whilst current rules and regulations for solicitors do not make separate representation compulsory, they do place substantial restrictions on the circumstances in which the same solicitor or firm can act on behalf of both buyer and seller. The SRA offers guidance to conveyancing solicitors on when firms or an individual can act for both buyer and seller in a conveyancing transaction and examines situations in which a conflict of interest could arise and how this should be dealt with.

The Code of Conduct, Outcome (3.5) (see appendix A) explains that a conveyancer shall not represent both parties to the transaction if there is likelihood of client conflict. This does not automatically prevent a conveyancing solicitor from acting for both parties, though due to the very nature of conveyancing, there is always a risk of a conflict arising during the course of the transaction, meaning a likelihood of breaking the rules. See Appendix A for a full break down of the rules regarding working in conflict situations.

In assessing the risk of a conflict arising during the course of the transaction, conveyancers must consider other factors that could compromise their ability to act in the best interests of you, their client. These factors may include:

• Level of complexity
• The likelihood of having to make negotiations
• The bargaining power of the respective parties
• A vulnerability of either party
• Any disruption and additional costs incurred by parties should you have to cease acting
• The length of the chain involved

To achieve Outcome 3.1, your conveyancing solicitor should have in place an effective system to identify and assess potential conflicts of interest. This could include, for example, listing possible safeguards, for example:

• You could be represented by two different individuals from within the firm;
• You could be informed in writing of the risks and potential consequences (with regards to inconvenience, delay and possible additional costs) if the firm must cease acting for you
• That the factors considered by the conveyancer in reaching their decision to act for both parties are recorded
• Your informed consent was given in writing before proceeding

Most conveyancing forms will decline requests to work on behalf of buyers and sellers involved in the same transaction. Compare conveyancing solicitors and find a fully accredited lender panel conveyancing solicitor to work on your behalf.

Final note…

In light of the above, whilst the SRA Code of Conduct allows the possibility for conveyancing solicitors act for the buyer and seller of a property, the practice is not to be recommended. In a few, isolated circumstances, it may be considered due to specific practicalities. However in balancing this against the probability of a conflict arising, it is not to be advised that you employ the same conveyancing professional as the other party involved. Few reputable firms will enter into an agreement where the risk is dependent upon matters that were at one time un-forseen.

Appendix A – SRA guidelines

Prohibition on acting in conflict situations

• O(3.4) – you do not act if there is an own interest conflict or a significant risk of an own interest conflict;
• O(3.5) – you do not act if there is a client conflict, or a significant risk of a client conflict, unless the circumstances set out in Outcomes 3.6 or 3.7 apply.

Exceptions where you may act, with appropriate safeguards, where there is a client conflict:

• O(3.6) – where there is a client conflict and the clients have a substantially common interest in relation to a matter or a particular aspect of it, you only act if:
• (a) you have explained the relevant issues and risks to the clients and you have a reasonable belief that they understand those issues and risks;
• (b) all the clients have given informed consent in writing to you acting;
• (c) you are satisfied that it is reasonable for you to act for all the clients and that it is in their best interests; and
• (d) you are satisfied that the benefits to the clients of you doing so outweigh the risks;

• O(3.7) – where there is a client conflict and the clients are competing for the same objective, you only act if:
• (a) you have explained the relevant issues and risks to the clients and you have a reasonable belief that they understand those issues and risks;
• (b) the clients have confirmed in writing that they want you to act, in the knowledge that you act, or may act, for one or more other clients who are competing for the same objective;
• (c) there is no other client conflict in relation to that matter;
• (d) unless the clients specifically agree, no individual acts for, or is responsible for the supervision of work done for, more than one of the clients in that matter; and
• (e) you are satisfied that it is reasonable for you to act for all the clients and that the benefits to the clients of you doing so outweigh the risks.