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LPC Law Notes Property Law and Practice Notes

Professional Conduct Issues Notes

Updated Professional Conduct Issues Notes

Property Law and Practice Notes

Property Law and Practice

Approximately 490 pages

A collection of the best LPC PLP notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".

In short these are what we believe to be the strongest set of PLP notes available in the UK this year. This collection of notes is fully updated for recent exams, a...

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Professional Conduct Issues

Lenders & Draft Certificates of Title

A certificate of title will be sent to the lender’s solicitors before the contracts are exchanged to ensure the lender has the appropriate funds to discharge the mortgage. On completion the signed and dated certificate will be sent to the lender’s solicitor.

Acting for Lender & Borrower

If a borrower requests their solicitor to act for both the lender and the borrower this creates a professional conduct issue. Under P(4) the solicitor is under a duty to act in the best interests of each client.

O(3.5) clearly states that a solicitor should not act where there is an actual or risk of a client conflict unless one of the exceptions in O(3.6) or O(3.7) applies. The Glossary defines ‘client conflict’ as where the duty to act in the best interests of each individual client conflicts. In this case there is a potential conflict because…

IB(3.7) clearly applies here and states that acting for a lender and borrower can only achieve the outcomes where there is a standard mortgage for a private residence. In this case it is not a private residence and therefore IB(3.7) does not apply…

There are two exceptions to O(3.5), the first of which is O(3.6) which states that a solicitor may act where there is a client conflict when the clients have a substantially common interest. The Glossary defines ‘substantial common interest’ as where the parties have a clear consensus as to how a common purpose is to be achieved. However, in lender-borrower cases O(3.6) almost never applies because IB(3.11) states that where clients interests in the end result are not the same, the solicitor cannot act. In this case… Merely wanting to complete the deal is not a valid ‘substantial common interest’.

The second exception to O(3.5), is O(3.7) which allows solicitors to act for clients if the clients are competing for the same objective if they have confirmed in writing they want the solicitor to act. The Glossary defines ‘competing for the same objective’ as where one party attains the objective (being an asset, contract or business opportunity) it becomes unattainable to the other party. In this case…

Finally, IB(3.3) states that solicitors should decline to act where the solicitor will need to negotiate on matters of substance on their clients behalf. In this instance, there will be a variety of issues of substance (such as the loan agreement or mortgage) that the solicitor will need to negotiate on and clearly a negotiation cannot be conducted by one sole solicitor.

Therefore, for all the reasons stated above, it is not possible to act for both the lender and borrower in this case without failing to meet any of the outcomes and principles of the SRA Code of Conduct.

Breach of Mortgage Condition

There will be confidentiality and disclosure issues if a client intends to breach mortgage conditions. Failure to disclose this to the lender means the solicitor may risk aiding and abetting mortgage fraud.

P(4) states that a solicitor has a duty to act in the best interests of your client and the lender. If these duties conflict then issues arise: a solicitor has a duty of disclosure to the lender under O(4.1) which means disclosing the intended breach. However, the solicitor also has a duty of confidentiality to the borrower under O(4.2) to keep the intended breach private.

Therefore, O(4.3) states that the duty of...

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