“One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors” ~ Plato
Whilst I certainly do not mean to imply that lawyers are superior to other individuals, at what point will we finally grow tired of being subject to the demands and whims of shallow financial interests from outside the profession?
The legal profession never used to be the fertile ground for pure commercial greed that it arguably is today. Practising law used to be a lifelong professional commitment and provided a proud sense of identity, but in the post-Legal Services Act landscape the position has changed considerably. Property lawyers particularly, face an existential crisis due to relentless attacks on multiple fronts.
The Moral High Ground
With a few notable exceptions, the profession appears to be mostly unwilling to take notice of the threats it faces. ‘Burying our heads in the sand’ or waiting patiently for retirement, is frankly no longer tenable.
When PLAG launched, as anticipated, we met with opposition. However, what the group mostly saw in this regard were vested interests attempting to ‘shout down’ the views of practising lawyers, merely for publicly expressing views on their own profession. Conversely, many lawyers seem unwilling to engage in such discussions. Perhaps out of fear, or simply because they see it as beneath them. My argument, especially to the latter group, is that taking the moral high ground may no longer provide safe passage.
Part of the impetus for the PLAG’s formation was the introduction by National Trading Standards of Material Information (MI). MI had been anticipated for some time. However, what became increasingly clear, as I spoke to more and more lawyers, was that many were fervently yet silently in opposition to it. These lawyers had nobody to represent them. They lacked the confidence that their concerns would be heard and opted instead for a dignified silence. In hindsight, that lack of confidence was well-founded; however, some lawyers have unwittingly set a precedent that they will respond to acts of aggression with pacifism.
Estate Agents and ‘Lawtech’
When I first started in conveyancing, my then colleague and I were being pestered by an especially ‘pushy’ estate agent. My colleague, being far more experienced than I, commented “When I started, we refused to speak to estate agents”. What I took as a flippant comment at the time was, knowingly or not, worthy commentary, regarding the reversal of the power dynamic between agents and lawyers. Nowadays it is not especially unusual when acting for a buyer to hear from your client some of the following comments, for example:-“The estate agent says we can complete next week”
“But the estate agent says we can just get indemnity insurance”
“The estate agent says we need to exchange today or the seller will remarket the property” A subsequent phone call to the seller’s lawyer revealing that the seller has made no such ultimatum.
Conveyancers will be aware of these types of agents. They’re more than willing to attempt to undermine lawyers because frankly, many lawyers foolishly tolerate it. Indeed, many lawyers, due to dubious business practices (referral arrangements, for example) now have little choice.
What conveyancers should also be concerned about however, is the meteoric rise of the legal technology sector (otherwise popularly called ‘lawtech‘).
For example, we recently had the Law Society’s much-criticised climate guidance published in April 2023 which was conceived, due to a search agent (Groundsure) instructing a barrister specialising in environmental law to provide an opinion on a firm’s professional retainer. In other words, a search agent heavily (and openly) influenced the Law Society to issue guidance to its members on best conveyancing practice which was simply taken as “read”. So, this concern is not just paranoia.
The push towards Lawtech can only be described as relentless at this point. Barely a day passes where there is not someone trying to sell their new software to “streamline” the process or “cut down on fall throughs”. When it is the largest purchase someone is likely to make in their lifetime there should be no shortcuts.
One recent article on Today’s Conveyancer quoted figures as high as 34% a figure I expect very few conveyancers would agree with is the practical reality. I would wager the vast majority of transactions that do not proceed are from survey issues; which no amount of technology is going to change. Unfortunately, this highly dubious narrative goes largely unchallenged from within the profession.
In summary, lawyers must recognise the various threats to their historically pre-dominant role in conveyancing, mentioned in this brief article and otherwise, and reject pacifism in favour of a more robust approach to defend the profession.
Regardless of whether it is widely adopted or not, MI has given tacit approval for non-lawyers and non-regulated firms to further curtail the traditional role of the lawyer in conveyancing transactions. We are already seeing lawtech providers ‘swooping in’ to ‘assist’ in that endeavour. Though PLAG does not presently have a position on the regulation of estate agents, it is suggested that this measure may also continue to blur the lines between the roles of the lawyer and the estate agent.
This would continue what I consider to be a worrying trend. Due to deregulation, it is both possible and increasingly common for estate agents to own a law firm. PLAG has recently reported our concerns on referral arrangements between estate agents and lawyers.
It is also increasingly common for certain estate agency firms to provide surveyors and brokers ‘in-house’, some of which have been accused of conditional selling.
The future role of the property lawyer remains increasingly unclear. However, in my view, the developments that have been discussed briefly in this article need to be fiercely resisted by the profession, if home-buying is still to be underpinned by the professionalism of its members.