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My time for nothing

14 December 15

Professional Practice column: advice on a grievance regarding a client who took their business elsewhere after receiving initial advice

by Coral Riddell

The daughter of a client whose title and will we hold, called me earlier in the week to discuss a transfer of title of her mother’s house into the names of her and her siblings.

The matter required some discussion and so I suggested that a meeting might be more appropriate. The daughter agreed and we met for over an hour. After the meeting I emailed on a fee quote for the transfer of title. I am pretty annoyed, as after my having met her and sent on my fee quote the daughter has declined my services. To rub salt in the wound she has advised me that she is going with another firm and wants me to send the titles there. I presume I can charge a delivery fee for doing that?

I feel frustrated that this is the second situation where I feel I have ended up providing free legal advice which I won’t now get paid for. I would be grateful for your advice on what I might be able to do to get paid or at least prevent this happening in the future?

I sympathise with your position and acknowledge that it can be difficult managing client expectations, particularly at the start of a relationship. It can be tricky balancing the time you spend trying to win the client without giving away your legal advice for free.

Off on the right foot

Many solicitors offer a specific free initial interview service, typically of between 20 and 30 minutes, and that might be a process you could adopt in the future.

The Society’s Practice Rules provide in rule B4:

4.2 When tendering for business or at the earliest practical opportunity upon receiving instructions to undertake any work on behalf of a client, you shall provide the following information to the client in writing:
(a) an outline of the work to be carried out on behalf of the client;
(b) save where the client is being provided with legal aid or advice and assistance, details of either – (i) an estimate of the total fee to be charged for the work, including VAT and outlays which may be incurred in the course of the work; or (ii) the basis upon which a fee will be charged for the work, including VAT and outlays which may be incurred in the course of the work”.

The implication of this rule is that in order to be able to charge for the meeting it is best to have clarified matters up front. Alternatively, if discussing fees feels uncomfortable initially, then limit the time you have for the meeting and restrict the amount of legal advice you will disclose.

You can charge a fee for delivering the papers to the new solicitor – that fee is payable by the client and not
by the solicitor. The Society’s Guidance provides at Section E, Division B (Charging for Lending or Delivering Files, Titles and other Papers), that: “Where a solicitor is asked to lend titles or other documents to another solicitor a fee may properly be charged for such lending to cover both the delivery and return of the documents. If more than three documents are lent, a fee for an inventory may properly be charged.”

Conflict of interest

You mentioned that the mother is an existing client of yours and it would appear that you have met with her daughter to discuss the transfer of title to her home without the mother being in attendance.

You mention that you have given legal advice to the daughter which, given the typical dynamics of a sale and purchase transaction, could be detrimental to the position of your existing client, the mother, and could leave you vulnerable to complaint.

The Society’s practice rules on conflict of interest are too lengthy to set out in full here, but these provide that you shall not act for two or more parties whose interests conflict.

There are a number of provisos to this rule, commonly but erroneously thought of as “exceptions” to the conflict of interest rule. These provisos allow you to act for parties related by blood, adoption, civil partnership or marriage, one to the other, but only where no conflict of interest exists.

To establish whether there is a conflict, it would be worth considering the purpose of the transaction (is this to fund care home fees or for tax purposes, for example?), whether fair market value is to be paid (given the nature of the transaction, it may be that this is for nil consideration), what the mother’s alternative living arrangements are to be (or is she to be granted a liferent?) and, perhaps most importantly, whether the mother consents to the arrangement. In establishing whether there is conflict of interest, it would have been preferable for you to have met with the mother at the same time as meeting with the daughter.

The Society’s guidance on vulnerable clients is also worth considering when presented with
a scenario such as this.

Coral Riddell is head of Professional Practice at the Law Society of Scotland 

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