According to the Legal Practice Act, conveyancers are not permitted to offer any form of legal advice or legal work to their clients, even though conveyancing matters invariably require the giving of legal advice.
Because most consumers would be reluctant to use conveyancers if they knew that their conveyancer could not perform the legal work associated with a conveyancing matter, the concept of “solicitor supervision” has been developed to make conveyancers appear more credible.
Unfortunately, the protection offered by “solicitor supervision” is more apparent than real. It usually involves a lawyer being retained by a conveyancer for a fixed yearly fee.
This means that the lawyer has been engaged by the conveyancer, for the benefit of the conveyancer. The conveyancer is the lawyer’s client. This is important, because the lawyer must always act in the best interests of the lawyer’s own client.
The lawyer allows his/her name to appear on the letterhead of the conveyancer as “supervising solicitor”, but the lawyer has little if any involvement in the conveyancing process. The chief role of the lawyer is to help the conveyancer out of “tight spots”, by being available to answer questions the conveyancer may ask.
The problem for clients of the conveyancer is that the lawyer is not available to them, and is prevented by law from assisting the conveyancer’s client if the conveyancer does something wrong. This is because the conveyancer’s lawyer has a duty to protect the conveyancer from the client in the event of a dispute.
A purchaser sought our assistance because his conveyancer had acted contrary to his interests. The commission estate agent through whom the purchaser had bought his property had made a mistake by setting a specific settlement date, when the property had been purchased “off the plan“. Rather than bring the mistake to the purchaser’s attention, and negotiate an out come that would suit both the purchaser and the vendor, the commission estate agent “covered” his mistake by approaching the purchaser’s conveyancer (the commission estate agent had “referred” the purchaser to the conveyancer in the first place).
The conveyancer assisted the commission estate agent by having the purchaser sign a fresh Contract, which left the settlement date open, pending registration of the plan of subdivision. This meant that the purchaser had to move out of his existing home (which had been sold, with settlement taking place within a few weeks), and rent another property until the new property was available for settlement.
Understandably, when the purchaser realised the consequences of his signing the new Contract, he felt tricked and betrayed. He then decided to contact the “supervising solicitor” to complain about the conveyancer, and to have the matter rectified.
The purchaser was most distressed when the “supervising solicitor” explained to him that he would not assist, that he was the conveyancer’s lawyer, and that the conveyancer denied any negligence and would defend any action brought by the purchaser.
The purchaser described his feelings:
“I feel gutted. Everyone that I thought I could trust has turned against me. It turns out that they are now my enemies, but they know everything about me, and they have control of all of my documents, letters and any other things I’ll need as evidence.”
The only way to have a conveyancing matter truly lawyer supervised is to have the lawyer engaged as YOUR lawyer.