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LSR7/2003 PRACTICE RULE 7 Avoiding Conflicts of Interest In LSR7/2003 PRACTICE RULE 7 At a Meeting of the Council of the ISLE OF MAN LA W SOCIETY held at 27 Hope Street, Douglas on the 19dtAugust 2003, Andrew J. Corlett, Esq., President of the Society, in the Chair, resolved that the Practice Rules of the Society passed on the 26tthApril 2001 be amended in accordance with the amendment below, subject to the approval of the Advocates Act Committee pursuant to section 16 of the Advocates Act 1976. Avoiding conflicts of interest in conveyancing,property selling and mortgage services. 1. GENERAL This rule sets out the circumstances in which an Advocate may act for more than one party in conveyancing,property selling or mortgagerelated services in connectionwith: (i) The transferof land for value at arm's length; or (ii) The grant or assignmentof a lease,or someother interest in land for value at arm's-length;or (iii) The grant of a mortgage secured on land. This Rule must be read in the light of the guidance notes which do not form part of the Rule. Notes (i) "Advocate" (except where the notes specify otherwise) means an Advocate, his or her practice, and anyassociated practice; (ii) a '~rincipal" is a solepractitioner, a partner in practice, a director of a recognised body, a member of or beneficial owner of a share in a recognised body or a recognisedbody; "Property selling II means negotiating a sale for the seller or negotiating a lease or derivation of a leasefor the lessoror derivativelessor; "Mortgage related services II means advising on or arranging a mortgage, or providing mortgagerelated financial servicesfor a buyer; (v) and "buyer" includes lessor and lesseeand relevant derivative thereof,- (vi) Whether a transaction is "at arm's length" will depend on the relationship between the pal1ies and the context of the transaction, and will not necessarilyfollow from the fact that a transaction is at market value, or is stated to be on arm's length terms. A transaction would not usually be at arm's length, for example, if the parties are: related by blood, adoptionor marriage; the settlor of a trust and the trustees; the trustees of a trust and the beneficiary or the beneficiary 's relatives; personal representativesand a beneficiary; the trustees of separatetrusts for the samefamily; a sole trader or partner to a limited companyset up by such sole trader or partner to enablethe businessto be incorporated;or associated companies (e.g. where one is a hoLding company and the other is its subsidiary within the meaningof the CompaniesAct 1931 to 1993, or both subsidiaries of the same holding company); "Mortgage II includes a remortgage, .'seller (viii) Nothing in this Rule allows an Advocate to act in breach of any other Rule or principle ofprofessional conduct. AN ADVOCATE ACTING FOR SELLER AND BUYER (a) An Advocate must not act for the seller and the buyer: (i) without the informed written consent of both parties; (ii) if a conflict of interest exists or arises; or if the selleris selling or leasingas a Builder or Developer. (b) Otherwise,an Advocatemay act for the sellerand the buyer, but only if; (i) both parties have given informed written consent; or (ii) the consideration payable to the seller for the property transferred including any premises constructed or proposed to be constructed thereon is in the aggregate£10,000.00 or less and the transactionis not the grant of a lease; or there is no other Advocate operating an office within five miles of the Advocate's office whom either the seller or the buyer could reasonably expectto consult; or the seller and the buyer are represented by two separate offices, of the same practice in different localities and with different Advocates, who normally work at each office, conduct or supervise the transaction for the seller and the buyer; or (v) without prejudice to Rule 7(3) the only way in which an Advocate is acting for the buyer is in providing Mortgage related services. 2. Note (i) Seller for the purposes of paragraph 7(2)(ii) includes if the seller is an individual, the spouse,associate (whether partner businessor otherwise),or joint venturer(s) with the seller and if the seller is a body corporate the holding, subsidiary or any other companywithin the group of companiesof which the seller is a member and any associate companyby way of joint ventureor otherwise. (c) When an Advocateacts for the seller and actsfor the buyer, the following additional conditions must be met: (i) different personsmust conductthe work for the seller and the work for the buyer and if either of the persons conducting the work is not an Advocate, he or she mustbe appropriatelysupervised by a different Advocate;and (ii) the Advocate must inform the seller, in writing, before accepting the instructions to deal with the Property selling, of any services which might be offered to the buyer, whether through the same practice or any practice associated with it; and (iii) the Advocate must explain to the buyer, in writing, before the buyer gives consent to the arrangement: (a) the implications of a conflict of interest arising; and (b) the Advocate'sfinancial interestin the sale going through. Notes (i) If a Builder or Developer acquires a property in part exchange, and sells it on without development, he or she is not, for the purpose of this Rule, selling ''as a Builder or Developer (ii) given in exchangeor part exchangeis takeninto account. "Advocate " (iii) in paragraph 2(b)(iv) means any individual Advocate conducting or supervising the matter; and in paragraph 2(c)(i) means the individual Advocate supervising the transaction. 3. ADVOCATE ACTING FOR LENDER AND BORROWER (a) An Advocate must not act for both a lender and a borrower on the grant of a mortgagesecured on land; (i) without the informed written consent of both parties; (ii\ if a conflict of interestexists or arises (b) An Advocate who proposes to act for both a lender and a borrower on the grant of any mortgage secured on land, must also inform the lender and/or the seller and/or the buyer in writing of the circumstances if the Advocate proposes to act for the lenderand/or the seller and/orthe buyer in the sametransaction, 4. TRANSITIONAL PROVISIONS Notwithstanding the provisions of Rule 2(c)(I) hereof the following transitional provisions shall apply up to the 31stday of July, 2006. Where an Advocate is in sale practice as at the date this rule comes into force and effect and different persons conduct the work for the seller and the work for the buyer and one of the persons conducting the work is not an Advocate and would normally need supervision, that person can act unsupervised provided that the Council of the Isle of Man Law Society . has given a written consent in respect of that person stating that for the purposes of this rule they can work unsupervised. This transitional provIsion shall ceaseto have force and effect from the 31s1day of July, 2006. Note (i) A conveyancing clerk employed by an Advocate in sole practice can be recognised as not requiring supervisionfor the purposes of this rule whilst remaining in the employmentof that Advocateon written application by the Advocatein solepractice to the Council ofthe Isle of Man Law Society. Recognitionwill normallybe granted in respect of (a) A conveyancing clerk with more than 20 years' experience (b) A conveyancing clerk with more than 10 years' experience and who is a fellow of the Institute of Legal Executives. 5. REPEAL AND COMMENCEMENT (1) This rule shall come into operation on 151January 2004; (2) Rule 7 of the Advocates Practice Rules 2001 is hereby repealed /)/ --e:: ~ /'b "-"J:::::~~~:/:~) /' SecretaryL--5 -J -~::::::~-~ PreSit{ This PracticeRule was approvedby the AdvocatesAct Committeeon the 3 day of OC£~ 2003. L ~~ t..t ., ,,{---7' 1./ 1.
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