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Unrepresented buyer

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Unrepresented buyer

Postby theycantdothat » Fri Aug 21, 2015 7:03 pm

A buyer who proposes to act for himself was told by the seller's solicitor that he was unable to deal with him on the grounds that it was unlawful for him to deal with an unauthorised person. The solicitor has been put right on that and now admits he can deal with the buyer. However, he still declines to do so. What recourse does the buyer have? The seller is elderly and not inclined to go against his solicitor and find another one.
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Re: Unrepresented buyer

Postby atticus » Fri Aug 21, 2015 8:06 pm

Consult the SRA, and see if they will offer a friendly word of advice to the solicitor?
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Re: Unrepresented buyer

Postby miner » Sat Aug 22, 2015 12:53 am

theycantdothat wrote:A buyer who proposes to act for himself was told by the seller's solicitor that he was unable to deal with him on the grounds that it was unlawful for him to deal with an unauthorised person. ......


If true, the seller's solicitor is not fit to be or to act as a solicitor if he made such a statement.
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Re: Unrepresented buyer

Postby theycantdothat » Sat Aug 22, 2015 10:46 am

miner wrote:
theycantdothat wrote:A buyer who proposes to act for himself was told by the seller's solicitor that he was unable to deal with him on the grounds that it was unlawful for him to deal with an unauthorised person. ......


If true, the seller's solicitor is not fit to be or to act as a solicitor if he made such a statement.


That was my knee jerk reaction.

On reflection it is possible that he merely misunderstood or imperfectly remembered something he had read somewhere. The position is not entirely straightforward as there are three possible situations:

(a) A buyer is represented by an unauthorised person who is charging a fee

(b) A buyer is represented by an unauthorised person who is not charging a fee

(c) A buyer is representing himself

Under the Legal Services Act 2007 only (a) is unlawful and (b) is expressly declared to be lawful. Unless I missed it, there is nothing in the Act which says that is it unlawful for an authorised person to deal with an unauthorised person who is making a charge. However, the Law Society says: "A solicitor should refuse to have any dealings with an unqualified person unless he has clear evidence that no offence under the Legal Services Act 2007 will be committed." I think that has to be right as dealing with an unauthorised person would be to condone a criminal act. The question is how a solicitor can have clear evidence that an unauthorised person is not committing an offence. He only does so if he charges. How is the solicitor to establish that no charge will be made? Unfortunately the detailed Law Society guidance does not seem to be available online.

As to (c) the Act does not specifically cover parties acting for themselves, presumably on the basis that in such cases no legal services are involved. If it is shown that the person the solicitor is dealing with is the buyer that ought to cover it because the question of payment cannot arise. However, the buyer is still an unauthorised person so it is perfectly legitimate for a solicitor who comes across an unrepresented buyer for the first time to ask if he can deal with him. What is unacceptable is to decline to deal without having looked into the matter.

Whilst it is no reason to decline to act, authorised conveyancers do not like dealing with unrepresented parties even if they have no objection in principle to parties being unrepresented. It is often the case that the conveyancer ends up doing half of the work just to get the job done - effectively the other party is getting free conveyancing. If the other party is floundering or going wrong the conveyancer is put in a difficult position. On the one hand he is required to act in the interest of his client, but on the other (at least if a solicitor) must not take "unfair advantage of an opposing party’s lack of legal knowledge where they have not instructed a lawyer". Is the conveyancer entitled to proceed on the basis that anyone who chooses to do his own conveyancing knows what he is doing even if it is apparent that he does not? If another conveyancer puts something in a sale contract which prejudices the seller and favours the buyer, the buyer's conveyancer is perfectly entitled not to point it out. Should the position be different is the seller is unrepresented?
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Re: Unrepresented buyer

Postby miner » Sat Aug 22, 2015 1:04 pm

However, the Law Society says: "A solicitor should refuse to have any dealings with an unqualified person unless he has clear evidence that no offence under the Legal Services Act 2007 will be committed."


Oh, is that one of the rules the Law Society (or do you mean the SRA?) chooses to actually enforce (or at any rate try to ...)?

Typical vague bullshit wording deliberately constructed to be such by the Law Society / SRA. Note that in any event the word "should" is used, which does not make it prescriptive to refuse to have such dealings. Aimed at screwing the public in the form of a "make work for solicitors'" policy after the solicitors' monopoly over conveyancing very properly came to an end, something they have resented ever since.

was told by the seller's solicitor that he was unable to deal with him on the grounds that it was unlawful for him to deal with an unauthorised person. ......


That statement is complete and utter bullshit and is fundamentally dishonest - if for no other reason it is not mandatory to adhere to it.
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Re: Unrepresented buyer

Postby theycantdothat » Sat Aug 22, 2015 2:30 pm

Even before the solicitors' conveyancing monopoly was broken a party to a conveyancing transaction could act for himself.

***

"A solicitor should refuse to have any dealings with an unqualified person unless he has clear evidence that no offence under the Legal Services Act 2007 will be committed."

So you do not like that. OK. Perhaps you can be positive rather than negative for a change. What do you think they should say? Bear in mind that:

(a) It is an offence for an unauthorised person to conduct conveyancing for reward

(b) It is expressly provided that unauthorised persons may conduct conveyancing for no reward

(c) There are money laundering regulations to be taken into account

(d) You have a visceral hatred of lawyers who act where there is a conflict of interest

(e) Solicitors must not take unfair advantage of an opposing party’s lack of legal knowledge where they have not instructed a lawyer

(f) The obligation referred to in (e) is likely to give rise to a conflict of interest
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Re: Unrepresented buyer

Postby theycantdothat » Mon Aug 24, 2015 1:18 pm

atticus wrote:Consult the SRA, and see if they will offer a friendly word of advice to the solicitor?


The SRA has been consulted and said it will be 25 days before they come up with the answer. As a well-known former tennis player might enquire: "Are they serious?"

I feel myself moving to a position where I am in danger of agreeing with miner.
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Re: Unrepresented buyer

Postby miner » Mon Aug 24, 2015 1:40 pm

And the SRA's "answer" is likely to be along the lines of "It is up to the solicitor's professional judgement". Let's see if I am right.

The SRA, whatever it cynically, bogusly and dishonestly claims about protecting the public interest, is in reality part of the Law Society whose raison-d'être and purpose is to support, promote and represent the interests of solicitors. It is also financed by solicitors. It is effectively a Trade Union to which all solicitors belong, and pay mandatory subscriptions to the SRA. Make no mistake about it, the SRA is there first-and foremost to protect solicitors.
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Re: Unrepresented buyer

Postby theycantdothat » Mon Aug 24, 2015 1:55 pm

miner wrote:And the SRA's "answer" is likely to be along the lines of "It is up to the solicitor's professional judgement". Let's see if I am right.

The SRA, whatever it cynically, bogusly and dishonestly claims about protecting the public interest, is in reality part of the Law Society whose raison-d'être and purpose is to support, promote and represent the interests of solicitors. It is also financed by solicitors. It is effectively a Trade Union to which all solicitors belong, and pay mandatory subscriptions to the SRA. Make no mistake about it, the SRA is there first-and foremost to protect solicitors.


Possibly.

So what is the solution?
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Re: Unrepresented buyer

Postby atticus » Mon Aug 24, 2015 2:06 pm

make to the solicitor the points you have made above?
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