News In Focus
7 December 2006
Professional practice: new guideline
Charging for lending or delivering files, titles and other papers
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.
Delivering documents in response to client’s mandate. Where files or documents are delivered by one solicitor to another in accordance with the client’s written instructions or mandate, a fee may properly be charged. No charge should be made for delivering such papers direct to the client or former client, but any outlay incurred in posting or delivering by courier may properly be recovered from the client or former client.
Amount of fee which may be charged. The Society is not in a position to give guidance on the amount of fee which may be charged in either of the above situations, but in terms of article 6 of the Code of Conduct, the fees charged shall be fair and reasonable in all the circumstances having regard to the various factors set out in article 6.
It should be noted that where the Council are satisfied that a solicitor has issued an account for fees and outlays of an amount which is grossly excessive, whether or not the account has been paid, the Council may in terms of s 39A of the Solicitors (Scotland) 1980 withdraw the solicitor’s practising certificate, but only after enquiry and after giving the solicitor an opportunity of being heard. What is grossly excessive is a matter to be determined by the Auditor of the Court of Session at taxation.
Some recent committee decisions
Settlement of conveyancing transactions: electronic transfer of funds
In response to an increasing number of representations from the public, the Professional Practice Committee recently reviewed the practice of settling conveyancing transactions with a cheque drawn on a client bank account. The concern expressed was that a house sale had been settled by client account cheque in the normal way, but the clients themselves had not received their funds for some days thereafter. There was strong support on the committee for retaining the practice of settling by client account cheque, which allows the firms acting for both buyers and sellers to send either the cheque or the titles etc to be held as undelivered pending fulfilment of conditions. In the committee’s view electronic transfer of funds is still not sufficiently reliable to guarantee that the incoming funds would be credited during business hours on the same day. However the committee felt that it would be sensible for solicitors to include provisions about settlement and the timing of payment to the client in their terms of business letters.
Code of Conduct: drafting will including legacy to self or partner
The committee considered an amendment to article 2 of the Code of Conduct. The committee agreed to recommend to Council that the second paragraph of article 2 be changed by deleting the previous somewhat imprecise reference to preparing a will and substituting the following:
“The Discipline Tribunal has made it clear that a solicitor must not accept instructions to draft a will containing a legacy in his favour or in favour of a business partner or an immediate family member (including a civil partner). The Tribunal recognises only two exceptions to this general rule, namely a token legacy (which must not be a share of the residue) and a will by a close member of the solicitor’s family. A solicitor may make a will for his spouse or civil partner in which the solicitor is the sole or main beneficiary. A will containing a share of residue may also be made for a parent, grandparent, child, collateral, aunt or uncle (and equivalent in-laws) provided that the solicitor, his spouse, civil partner or child as the case may be, does not benefit more than their expectation on intestacy.”