On to my final point, in Scotland, it is competent for solicitors to act for both the lender and the borrower in a conveyancing transaction.
Lenders are represented by a central body known as the Council of Mortgage Lenders (CML), the mortgage lenders’ representative body, which produces a Handbook detailing the practices of various lenders and issuing standard forms. Generally, lenders will permit solicitors acting for the borrower in the purchase of a house, to act for the lender as well.
This means a substantial saving on duplication of work and thus a saving of costs payable to the borrowers. It should always be borne in mind that if a conflict does arise, the solicitor must cease to act for them.
If solicitors are in possession of information that is clearly detrimental to one of the parties, they must reveal it to the other party as seen in Mortgage Express v Bowerman & Partners 1996 2 All ER 836.
In Wernham v Mclean Bourd & Neilson 1925 S.C 407, Lord Anderson stated, “I am not prepared to hold that it is an act of professional negligence for a solicitor to act for both borrower and lender in a transaction of this nature. It is a matter of regular practice for solicitors to act for both parties in such a transaction. The duty of suggesting that independent legal advice should be sought, only arises… when there is a real conflict.” Thus, in potential conflicts, the nature must have a material and adverse effect on one of the clients. In regards to disclosure, the lawyer must disclose all facts that are material to the transaction and if the facts are confidential, the clients informed consent allows the lawyer to proceed, so confidentiality is compromised.
To conclude, solicitors such as abogados de accidentes may find themselves in a position whereby they have no choice but to act for both the purchaser and borrower in a conveyancing transaction. The rule of informed consent allows this transaction to happen saving on costs and time. I strongly oppose my friends motion that confidentiality may be breached, because informed consent gives the client the benefit of having the transaction completely quickly and efficiently at low costs, without a conflict actually arising. I therefore ask the house to reject my friend’s proposition and vote for today’s motion.