Quality streets

The latest version of the Law Society's conveyancing protocol is tailored to fit in with the conveyancing quality scheme launched last year (see Solicitors Journal 154/40, 26 October 2010) but can equally be embraced by those who have not chosen to join.

The old protocol had its roots in a need to clarify procedure and best practice. It has been acknowledged as setting a standard followed by our profession, and also by licensed conveyancers. Valuable as that was, and is, times have changed.

There was much debate over the direction that this document should take. This is no 'done deal' but rather carefully considered, argued and debated policy. What has been settled does not just update the procedures we now follow, but also speaks of the interaction between solicitors and others in the process.

The goal is to enhance the experience for practitioners and, more importantly, for clients, and to demonstrate to others that we can improve the process ourselves when freed from outside influence as demonstrated by the home information pack debacle.

Conveyancing is of course a two-way process, although the way some are prepared to fight to the death over entrenched positions might lead you to suppose otherwise. The new protocol entreats its users to understand they are acting as part of a larger process; that their actions, reactions or sometimes inaction can colour the view that clients and others have about our profession.

We must be mindful of our client obligations and confidentiality. The protocol recognises this, but does not see it as incompatible with that larger view. We believe that enhanced communication will lead to better outcomes for all. We recognised that when designing the format, being reflective of current best practice and thinking would be the best way of bringing practitioners along with us. Indeed I suspect that many, when reading the new form, will find relativelylittle adjustment. Others may be a little more challenged. We already operate in a very competitive environment. ABSs are likely to make that more competitive still. Our professionalism is a unique selling point, but that only works if we all recognise the duty to do the best work for our clients and this work comes about when we understand the whole environment in which we are operating.

Nuts and bolts

This may be fine in sentiment, but how does it work? The form commences with a statement of general obligations. To paraphrase Basil Fawlty, these are to some extent a statement of the obvious, but they fit in with a wish for others; for example, estate agents and mortgage brokers to use the document as source material better to understand what we do and how they too can be a part of improving the process for the client.

There is an obligation to share information, within the limits of client confidentiality, to assist in the efficient management of each transaction or chain of transactions. This means a positive obligation to tell your opposite number when there is a problem, unless your client instructs you otherwise. More specifically, if there is a problem you need to make others aware so that they do not carry on regardless. People are spending time and money; if they are doing so with a false hope or expectation, when they find out their view of the other professionals and the client will not be a positive one.

There is an obligation to use the most up-to-date forms and protocols. That is perhaps easier than it used to be as most practitioners use forms packages which are updated automatically. Years ago people used to use up old stocks of forms, sometimes years after their expiry. If the forms change there is usually a good reason for it, so continuing to do something just because you have always done it will not make the world a better place.

There is also a section on interpretation which explains why some ideas were left out.

Following a consultation with local law societies and other interested bodies, some suggestions had been made; for example, where an indemnity policy might be required the seller should always pay. We believe that the society should not be prescriptive about these matters. It cannot prejudge the bargaining position between seller and buyer and having a set position as to who should pay for indemnities is likely to encourage their use, sometimes in unnecessary situations, so the protocol leaves it up to the practitioner to sort this out.

Another suggestion relates to the production of planning permissions or buildingregulation consents. The authors have suggested that where the sellers have undertaken the work they should always produce copies. Where buyers' solicitors are requesting copies, they should first search the local or planning authority website to see if they can be downloaded, and in any event if they are more than 20 years old the buyers should apply directly to the authority. There is of course no right or wrong answer to this, but drawing a line on that issue should leave the profession knowing where it is and what it should do.

We all act for both buyers and sellers. We can all be zealous in asking for something as a buyer which, as a seller, we would refuse to give and then be surprised that the solicitor acting for the opposing party does not react in the most positive way. While we must still be robust and professional, our clients, whether buying or selling, have little interest in scoring points '“ they usually just want to move. Facilitating that, explaining to our clients what they can or should not expect, while defining and ensuring compliance with our professional obligations, is perhaps the biggest prize of all.