| Statutory Instrument 1997 No. 316 (S.20) The Independent Qualified Conveyancers (Scotland) Regulations 1997 - continued |
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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-
(b) he notifies all of those clients in writing-
(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
(b) he notifies all of those clients in writing-
(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 or clients that he act or continue to act for him or them;
(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 or clients.
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:-
(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;
(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-
(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-
(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-
(ii) if the payments are periodical, the frequency of such payments and any circumstances in which it may be varied.
Qualified person
(b) that, so far as is reasonably practicable, the nominated qualified person is regularly available for consultation by the client at his office during normal business hours.
(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-
(b) if it is not reasonably practicable for the existing nominated qualified person to act or continue to act in the transaction, either permanently or for temporary periods due to sickness or leave or otherwise,
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.
(b) if a client acts upon such a recommendation,
he shall-
(ii) account to the client for the amount of the commission which he receives or may receive, whether by giving it to the client or deducting it from his fee to the client for the provision of conveyancing services or otherwise.
(2) For the purposes of this regulation, the amount of any commission shall be inclusive of value added tax.
(b) if he is unable to obtain proper instructions from his client; (c) if the client and the independent qualified conveyancer have agreed in writing (whether or not in the terms of engagement letter) that the client is required to pay the total price or any part thereof for the provision of conveyancing services prior to completion of the transaction and the client has failed to pay the price that is due; (d) if the transaction concerns matters outwith his knowledge or professional competence; (e) if he is unable to provide adequate professional service; (f) if there is a conflict of interest whereby, under these Regulations, he is required to cease to provide those services; (g) if the transaction is unlawful in any respect; (h) if his estate is sequestrated; (i) if for any other reasonable cause it is necessary or desirable that he should not, or should no longer, provide those services; (j) if regulation 14 or, as the case may be, regulation 15 applies.
Clients' papers 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-
(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-
(b) in payment of that independent qualified conveyancer's fees for providing conveyancing services to that client provided that-
(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.
(b) to show separately in respect of each client all clients' money or other money handled by that independent qualified conveyancer; and (c) to distinguish all clients' money from other money including money belonging to that independent qualified conveyancer,
and shall keep such accounts at all times up to date.
(b) credits a client account in accordance with regulation 25(5),
the independent qualified conveyancer shall record the reason for the withdrawal or (as the case may be) the credit.
(b) a clients' ledger (or a clients' column of a ledger); and (c) a record of sums transferred from the ledger account of one client to that of another,
and no other dealings shall be recorded in such clients' cash book, ledger or columns. | |
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