Background 

Mr A represented three first-time buyers (the clients) in an ‘off the plans’ conveyancing transaction. The conditions of the contract included confirmation of solicitor approval, no further power of cancellation after payment of a deposit and extensive vendor powers. 

Mr A provided terms of engagement and exchanged brief emails with the clients before meeting in person to sign forms to withdraw funds for the deposit. No specific advice about the transaction was provided before the deposit was paid.  

The clients later expressed that they wished to terminate the agreement due to a change in financial circumstances. Mr A explained that it would be up to the vendor to decide whether to accept the cancellation and refund the deposit. The vendor did not agree to the termination, and the clients sought new representation. 

Issue 

The clients argued that there was minimal communication from Mr A about signing the sale and purchase agreement, with only one in-person meeting being held. They submitted that there was a failure to adequately explain the implications of the contract, specifically surrounding the expiration of the cancellation period.  

In reply, Mr A explained that the initial engagement occurred during a Level 3 Covid-19 lockdown period, making an in-person meeting both impractical and ‘illegal,’ and noted that he made himself available over phone and email.  

Mr A advised that, once the clients indicated they wanted to terminate the sale, he promptly informed the vendor of their wishes. He submitted that there was adequate communication within the scope of his work and that he takes a “neutral stance” on whether his clients wish to proceed with a purchase. 

Acting competently  

In considering whether Mr A had provided adequate legal advice, the Committee noted that the clients were “particularly vulnerable” because they were first-time buyers. The Committee commented that a conveyancing solicitor must provide robust advice in protection of their client’s interests. Mr A did not discuss the nature of the property contract with his clients and did not ensure the clients understood their inability to cancel the agreement after confirmation.  

The Committee acknowledged that having only one face-to-face meeting was “unremarkable” in the context of the Covid-19 restrictions in place at the time but highlighted that there was no evidence of written advice being given to the clients. It was concerned by Mr A’s assumption that a person buying their first home would know what questions to ask about an ‘off the plans’ transaction. It acknowledged that Mr A may have considered it a routine transaction but added that “familiarity does not remove the obligation” to explain to a client the implications of an agreement. 

The Committee was concerned that Mr A had “fundamentally misunderstood the level of client care required” in confirming solicitor approval. The clients had a legitimate expectation that Mr A’s services would include information and advice on a highly significant transaction. It was the Committee’s view that “taking a purely passive approach to advising inexperienced clients is clearly inadequate.”  

The Committee considered Mr A’s level of client care to be significantly lacking and a departure from the expected standards. It determined that his actions exposed his clients to an “unacceptable level of risk” which amounted to a breach of rule 3 of the RCCC and warranted a finding of unsatisfactory conduct under the Act.   

Penalty 

The Committee made no orders for compensation, taking into account that the clients paid no fees for Mr A’s services. The Committee was of the view that there was no evidence that the clients would have exercised their right to withdraw from the transaction, even if they had been advised properly by Mr A at the time. It was satisfied that Mr A’s failure to provide advice did not cause loss but chose to mark its concern with Mr A’s conduct by imposing a censure.  

The Committee considered there to be “significant value” in publishing an anonymised summary to “remind the profession of their obligations to exercise the necessary rigour in all conveyancing matters, particularly when dealing with inexperienced clients who may be very vulnerable in certain circumstances.” The summary is intended to serve as “assurance to the public that they can expect a high standard of client care from conveyancing solicitors.”