Statutory Instrument 1997 No. 316 (S.20)
The Independent Qualified Conveyancers (Scotland) Regulations 1997
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PART III

CONFLICTS OF INTEREST

Actual and potential conflicts between client and independent qualified conveyancer
     9 . Where an independent qualified conveyancer (whether before or after accepting instructions to provide a client with conveyancing services) knows, or ought reasonably to know, of circumstances that result, or may result, in a conflict between the interests of that client and the independent qualified conveyancer or an associate, the independent qualified conveyancer shall not act or, as the case may be, shall cease to act for that client.

Actual conflicts between clients
    
10 .  - (1) Subject to paragraphs (2) and (3), where an independent qualified conveyancer (whether before or after accepting instructions to provide a client with conveyancing services) knows, or ought reasonably to know, of circumstances that result in an actual conflict between the interests of that client and any other person who is a client either of the independent qualified conveyancer or of an associate, the independent qualified conveyancer shall not act or, as the case may be, shall cease to act for that client or those clients.

    (2) For the avoidance of doubt, the circumstances in paragraph (1) that result in an actual conflict of interests include any circumstances whereby the independent qualified conveyancer is providing conveyancing services for one party to a transaction and that independent qualified conveyancer or an associate of that independent qualified conveyancer is providing (or arranging to provide) conveyancing services or any specified services for another party to that transaction.

    (3) Where there is an actual conflict of interests between two or more clients of the independent qualified conveyancer and he would otherwise require not to act or to cease to act for them in pursuance of paragraph (1), he may act or continue to act for one of them ("the chosen client") if-

    (a) he considers that it would be in the best interests of the chosen client that he act or continue to act for him;

    (b) he notifies all of those clients in writing-

      (i) of the circumstances that result in an actual conflict between the interests of those clients; and

      (ii) that the provisions of paragraph (1) would require him not to act or, as the case may be, to cease to act for those clients but he considers that it would be in the best interests of the chosen client that he act or continue to act for him;

    (c) the client or clients for whom the independent qualified conveyancer is already acting agrees or agree with him in writing that, notwithstanding the provisions of paragraph (1), the independent qualified conveyancer may act or continue to act for the chosen client.

Potential conflicts between clients
    
11 .  - (1) Subject to paragraph (2), where an independent qualified conveyancer (whether before or after accepting instructions to provide a client with conveyancing services) knows, or ought reasonably to know, of circumstances that may result in an actual conflict between the interests of that client and any other person who is a client either of the independent qualified conveyancer or of an associate, the independent qualified conveyancer shall not act or, as the case may be, shall cease to act for that client or those clients.

    (2) Where an independent qualified conveyancer would otherwise require not to act or to cease to act for a client or clients of his in pursuance of paragraph (1), he may act or continue to act for that client or those clients ("the chosen client or clients") if-



PART IV

CONDUCT OF CONVEYANCING TRANSACTIONS

Terms of engagement letter, etc
    
12 .  - (1) An independent qualified conveyancer shall, before accepting instructions from a client to provide conveyancing services, provide the client with a letter ("the terms of engagement letter") which informs the client of the terms upon which he will provide conveyancing services for that client, including information relating to the following matters, namely:-

    (a) the total price payable by the client for the provision of the conveyancing services, together with details of the elements included in that total price, including-

      (i) the fees to be charged by the independent qualified conveyancer;

      (ii) any expenses or outlays to be met; and

      (iii) any value added tax or other tax which is likely to be charged;

    or, where the total price is not ascertainable at the relevant time, of the manner in which the total price will be calculated;

    (b) whether any of the elements included in the total price is variable and, if so, in what circumstances and of the amount of the variation or, if this is not ascertainable at the relevant time, of the manner in which the amount of the variation will be calculated;

    (c) when the whole or any part of the total price or any variation thereof will be required to be paid;

    (d) the nature of the conveyancing services which the independent qualified conveyancer will provide and the length of time that it is likely to take to carry out those services;

    (e) the name of the person who will be providing the conveyancing services;

    (f) the steps that will be taken to keep the client informed of progress;

    (g) the right of the client to obtain independent financial advice in connection with the provision of conveyancing services or with the transaction to which those services relate;

    (h) the right of the client at any time to require the independent qualified conveyancer to cease to provide him with conveyancing services (including, in particular, where there is any variation of the price in terms of sub-paragraph (b) above) and the terms upon which the client may do so;

    (i) the circumstances in which the independent qualified conveyancer may refuse to provide (or cease continuing to provide) the conveyancing services in terms of regulation 22 and as to what happens when he does so;

    (j) the procedures established and maintained by the independent qualified conveyancer under regulation 35 for dealing with any complaints made to him in connection with the provision of conveyancing services; and

    (k) the client may make any complaint to the Board in connection with the provision of conveyancing services by the independent qualified conveyancer including any such complaint where he considers that the independent qualified conveyancer-

      (i) is guilty of professional misconduct; or

      (ii) has provided inadequate professional services; or

      (iii) has failed to comply with these Regulations; or

      (iv) has been convicted of a criminal offence rendering him no longer a fit and proper person to provide conveyancing services as a qualified conveyancer.

    (2) Where an independent qualified conveyancer may also provide a client not only with conveyancing services but also with any of the specified services, he shall, before accepting instructions from the client to provide any of those services, inform the client in writing (whether or not in the terms of engagement letter) not only of the matters required by paragraph (1) but also-

    (a) that the independent qualified conveyancer is willing to provide the conveyancing services both with and without any of the specified services;

    (b) of the price payable by the client for the provision of conveyancing services alone;

    (c) of the price payable by the client for the provision of each of the specified services required by the client if the conveyancing services were not also to be provided; and

    (d) of the total price payable by the client for any combination of the services required.

    (3) In this regulation, the price payable for the provision of any of the specified services means-

    (a) if the amount is known and is fixed, the amount payable for that service;

    (b) if the amount is known but is liable to vary, that amount and the circumstances in which it may vary;

    (c) if the amount is not known, the manner in which it will be calculated or the factors which will be relied on in making the calculation;

    (d) if there is more than one payment payable for that service-

      (i) the number of payments payable for that service; or

      (ii) if the payments are periodical, the frequency of such payments and any circumstances in which it may be varied.

Qualified person
    
13 .  - (1) The conveyancing services provided by an independent qualified conveyancer for a client shall be carried out by or under the supervision of the independent qualified conveyancer or of a qualified person nominated for that purpose by the independent qualified conveyancer.

    (2) The independent qualified conveyancer shall ensure-

    (3) A nominated qualified person ("the existing nominated qualified person") may be replaced by another nominated qualified person, either permanently or for a temporary period, only-

and, where the existing nominated qualified person is so replaced, the independent qualified conveyancer shall ensure that the client is notified of that fact and of whether the replacement is permanent or temporary and, if temporary, for how long and of the name of the replacement.

Acting for selling client
    
14 .  - (1) In taking instructions from a selling client to fix a closing date for offers, an independent qualified conveyancer shall advise the client that, although not bound to accept the highest or indeed any offer, if the client instructs the independent qualified conveyancer to enter negotiations with a view to concluding a bargain with a party who submits an offer at the closing date, the independent qualified conveyancer will not be able to accept any subsequent instructions to enter negotiations with, or accept an offer from, another party unless and until negotiations with the original offerer have fallen through.

    (2) In the event of the selling client subsequently attempting to instruct the independent qualified conveyancer to discontinue negotiations entered into with a party whose offer has been timeously received on the closing date in order solely to enter negotiations with or to accept an offer from another party, if the independent qualified conveyancer is successful in persuading the client to adhere to the original instructions, the independent qualified conveyancer may continue to act.

When acting for prospective purchasers
    
15 .  - (1) Where a prospective purchaser instructs an independent qualified conveyancer to submit an offer in a closing date situation, the independent qualified conveyancer shall advise the client that, if the offer is unsuccessful, the independent qualified conveyancer will not be able to accept subsequently instructions to submit a revised offer or formal amendment unless expressly invited to do so by the seller's agent.

    (2) In the event of the prospective purchaser subsequently attempting to instruct the independent qualified conveyancer to submit a revised offer or formal amendment after the closing date has passed, in the absence of any express invitation to do so by the seller's agent, the independent qualified conveyancer shall decline to implement these instructions but he may accept instructions to intimate to the seller, or to the seller's agent, that, in the event of negotiations with the successful party falling through, the prospective purchaser would be willing to enter into negotiations, but no indication should be given of any increased bid.

Information to clients
    
16 . An independent qualified conveyancer providing conveyancing services for a client shall establish and maintain suitable procedures to ensure that the client is kept informed of the progress of a transaction and shall take such steps as are reasonably necessary to ensure that the client is so informed.

Commissions
    
17 .  - (1) Where an independent qualified conveyancer receives or may receive commission in the form of money or otherwise-

he shall-

    (2) For the purposes of this regulation, the amount of any commission shall be inclusive of value added tax.

Records
    
18 . An independent qualified conveyancer providing conveyancing services for a client shall ensure that proper records are kept of all exchanges with and on behalf of his client, whether written or oral.

Avoidance of delay
    
19 .  - (1) An independent qualified conveyancer providing conveyancing services for a client shall, subject to the instructions of that client, provide those services with reasonable expedition.

    (2) Subject to regulation 22(c), an independent qualified conveyancer providing conveyancing services for a client shall not delay in the completion of a transaction or refuse to complete it on the ground that any fee due to the independent qualified conveyancer in respect of those services remains unpaid.

Undertakings
    
20 . An independent qualified conveyancer providing conveyancing services for a client shall comply promptly with every undertaking given by or on behalf of that independent qualified conveyancer in the course of the provision of those services and, where this is not possible, shall inform the client, and any other person to whom that undertaking has been given, as soon as possible.

Limitation of liability
    
21 . Subject to regulations 8(2) and 27, an independent qualified conveyancer shall not seek to limit or exclude any liability, whether in contract or delict or otherwise, arising out of the provision of conveyancing services by or on behalf of that independent qualified conveyancer.

Withdrawal from transaction
    
22 . An independent qualified conveyancer, having accepted instructions to provide conveyancing services to a client, may refuse to provide (or cease continuing to provide) those services only-

Clients' papers
    
23 . An independent qualified conveyancer, having ceased to provide conveyancing services for a client (whether because the transaction is completed or otherwise), shall hold to the order of the client all papers to which the client is entitled.



PART V

ACCOUNTS AND RECORDS

Client accounts
    
24 .  - (1) An independent qualified conveyancer shall at all times keep clients' money separate from other money and ensure that clients' money is available for payment to clients on demand or upon such conditions as the client may authorise.

    (2) An independent qualified conveyancer shall pay clients' money promptly upon receipt into a client account for the particular client concerned.

    (3) A client account is an interest earning account with a bank or a building society.

    (4) A client account shall include in its title the word "client" and the name of the particular client concerned, except that where the clients' money belongs too an executry or a trust, of which the client or the independent qualified conveyancer is an executor or trustee, the client account shall include in its title in the names of the executors or trustees and the word "executry" or "trust", as the case may be.

    (5) When opening a client account, an independent qualified conveyancer shall give written notice to the bank or building society concerned that the account is a client account and that therefore all money from time to time standing to the credit of that account belongs to the client and not to the independent qualified conveyancer.

    (6) An independent qualified conveyancer shall account to the client for all interest earned on the client account for that client.

    (7) An independent qualified conveyancer shall ensure that the rate of interest earned on clients' money in a client account is the best rate of interest reasonably obtained at the bank or building society holding the client account having regard to the amount of money involved and upon the basis that the money is withdrawable upon demand and without loss of interest.

    (8) No charge shall be made by an independent qualified conveyancer for opening or maintaining a client account.

    (9) An independent qualified conveyancer who fails to comply with any of the duties in this regulation or in regulation 25 shall be liable to compensate any client for any loss of clients' money or of interest resulting from that failure.

Operating client accounts
    
25 .  - (1) Subject to paragraph (2) an independent qualified conveyancer shall credit a client account only with clients' money and shall, immediately upon discovery, withdraw from it any other money.

    (2) Where an independent qualified conveyancer receives a cheque or a banker's draft that includes clients' money as well as other money, the independent qualified conveyancer shall-

    (a) credit the appropriate client account with the full amount of the cheque or draft; and

    (b) as soon as reasonably practicable thereafter, withdraw from that account a sum equal to the amount of the cheque or draft that did not represent clients' money.

    (3) Subject to paragraph (2), an independent qualified conveyancer may withdraw by cheque or transfer clients' money from a client account only-

    (a) with the written consent of that client; or

    (b) in payment of that independent qualified conveyancer's fees for providing conveyancing services to that client provided that-

      (i) an itemised bill has been delivered to the client; and

      (ii) the client, having been informed in writing that the money is to be withdrawn or transferred for this purpose, has made no objection within a reasonable time of being so informed.

    (4) An independent qualified conveyancer shall not cause or permit any client account to become overdrawn and, in the event of a client account becoming overdrawn, shall immediately upon discovery take all such proper steps as are necessary to clear the overdraft.

    (5) Where the money has been withdrawn from a client account wrongfully, an independent qualified conveyancer shall immediately upon discovery credit the account with the amount of the withdrawal, together with any interest due thereon in terms of regulation 24(9).

Keeping records
    
26 .  - (1) An independent qualified conveyancer shall, at all times, in connection with the provision of conveyancing services by that independent qualified conveyancer, keep such accounts as may be necessary-

and shall keep such accounts at all times up to date.

    (2) Where an independent qualified conveyancer-

the independent qualified conveyancer shall record the reason for the withdrawal or (as the case may be) the credit.

    (3) An independent qualified conveyancer shall record all his dealings with clients' money in such of the following forms as may be appropriate-

and no other dealings shall be recorded in such clients' cash book, ledger or columns.

    (4) An independent qualified conveyancer shall keep a record of all bills rendered to clients in respect of the provision of conveyancing services, which shall list each bill separately and to specify in each case the name of the client and the date of the bill.

    (5) An independent qualified conveyancer shall keep a record listing all powers of attorney which have been granted in his favour together with details of the dates on which the powers of attorney were granted.

    (6) At least once every month, an independent qualified conveyancer shall reconcile the balance of the clients' cash book (or clients' column of the cash book) with the balances shown on the client account statements produced by the relevant bank or building society, and shall keep in the cash book or other appropriate place a reconciliation statement showing that this has been done.

    (7) The accounts, books, ledgers and records required for the purposes of this regulation need not be kept in documentary form but, where those accounts, books, ledgers and records are kept by means of a computer or in other non documentary form, the independent qualified conveyancer shall ensure that the information comprised in those accounts, books, ledgers and records can readily be produced in a form in which it can be taken away and in which it is visible and legible.

    (8) A record required for the purposes of this regulation shall be preserved by the independent qualified conveyancer for at least 10 years from the date of the last entry in it.

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Prepared 2 March 1998