Lawyer repping 'both sides' query - just another bullying kind of tactic by the mortgagee and their lawyers

[HP Mum]

Have a question about legal practice:

Is it possible for a lawyer to 'swap sides' in the middle of a case?

 

For example:

a lawyer represents a bank for a few years in (ongoing) loan claim against an individual mortgagor 

Lawyer then leaves firm to set up own firm.   

Receiver (appointed by bank) uses powers of mortgagee-in-possession to take action on behalf of the mortgagor.(who had no say in the matter)

The Receiver appoints law firm to represent the mortgagor to serve a legal notice

The law firm the receiver appoints is the firm now owned by the lawyer who used to represent the bank.

There was no disclosure

 

Is this ethical?  Good legal practice?  Or completely ok?

 

[BazzaS]

If the lawyer had acted for the defendant, and then moved to represent a claimant : then one could raise an apparent conflict of interest, as each has a different interest.

 

Yet here, the possibility is that there is a common interest (recovery of the sum owed / limiting losses to the bank).

 

The SRA code of conduct applies and deals with the issues of conflict of interest, and Confidentiality,

 

1) by the Overriding Principles,

and

2) more specifically the Outcomes in Chapters 3 and 4,

 

O(3.6) and O(3.7) may give them the limited exemption.

 

Chapter 4 has a comment about moving firms at Notes(1)b.

https://www.sra.org.uk/solicitors/handbook/code/

 

 

[HP Mum]

Thank you for this.  I will read thoroughly the SRA code of conduct 2011 to which you have given the link.    I will also check the updated/ superseded 2019 SRA standards and regs.

 

Just for context of my query - the legal action claim was actually invalid (thankfully).

But the process was just a-n-other bullying kind of tactic by the mortgagee and their lawyers.  It is for this reason that I am looking into whether there is a separate regulatory complaint against the lawyer.

 

Having had a quick glance at the 2011 Chapter 3 - I note the 'indicative behaviour' sections 3.8-3.14: outline points which "show that you [the solicitor] have not achieved these outcomes and therefore not complied with the 'Principles' ".

** There are a few points in this section that could justify a complaint against the lawyer....

 

Bazza I understand your comment about "common interest (recovery of the sum owed / limiting losses to the bank)" .   There would have been a conflict in that the claim referred to, for example, an 'interest in land for value' (IB(3.14)).    Their claim - if it had been valid - would have incurred costs to the mortgagor which would have been unrecoverable.  It would have made almost negligible difference to "limiting loss".

 

I need really to concentrate on chapter 4 re confidentiality and disclosure - I'd assume there was a conflict but need to read carefully.

 

Edited February 22, 2021 by HP Mum

[honeybee13]

HP Mum, where are you heading with this? I assume it's related to one or more of your previous threads.

 

HB

[HP Mum]

Thanks HB

Yes.

But aside from any other thread issue - I am looking into whether there is a separate regulatory complaint against a lawyer.

[honeybee13]

I think a link to the relevant thread would be useful please, for us to see the context.

 

HB

[HP Mum]

I think it would be a separate issue?

The claim went nowhere - so I'm not sure if its relevant to discuss/ link to any thread?   Its more the principle of whether a lawyer should have been appointed given their previous position?  Am interested to look at the moot points within the link Bazza sent to ascertain if - in the reasonable future - a formal complaint is made? 

 

[AndyOrch]

https://www.sra.org.uk/solicitors/guidance/conflicts-interest/#:~:text=Circumstances that can give rise,or business relationship of yours.