There is nothing more entertaining than watching two conveyancing lawyers engaged in an argument over the use of referral fees within the property market. There are always plenty of sparks and it is clear that feelings around this subject run high.
So what are referral fees?
They take several different forms. The most common is the introduction fee. This involves for example a solicitor paying an estate agent for referring a client looking for conveyancing services to that solicitor. The fee can be anything up to £300. Another common one is the marketing fee. This where a a solicitor pays an intermediary for a ‘lead’, that is a name and contact number, to enable that solicitor to contact the potential client direct. Its not just estate agents who refer work on for payment. Insurance brokers also do it and can receive substantial payments for referring clients to panels of solicitors run by third parties who also take a payment.
Referral fees have already been outlawed in the area of litigation but still remain lawful in the property industry.
So what are the perceived benefits?
To begin with those referring will argue that by having control over the choice of solicitor albeit for payment, the referrer can keep control of quality and ensure the client receives the best service. There is some credibility to this argument as agents and brokers are in making the referral putting their reputation at risk if the conveyancer fails to deliver. The problem arises however when you bring conflict into the equation and question the motive behind the referral. Is it as it should be to ensure the best possible outcome for the client or is it more sinister than that? Is it because the introducer is out to maximize his return on acquiring that client? In other words the introducer may be focused solely on the money. In this case there is a real danger the client will be directed in the direction of the highest bidder.
The other fundamental flaw in all of these arrangements is that the client if left to pay for the referral. The client may not be aware of this even though there is a professional duty on the part of the lawyer to disclose the existence of the referral fee. So this is how it flows. The agent for example may direct a client to a conveyancer and tell the client the conveyancer is good and will only charge say £450. The agent is more likely than not to keep from the client that out of that £450 the agent will receive a ‘kick back’ of say £150. So in the end the client is paying £150 more than if she or he had gone the the conveyancer direct.
The conveyancer may argue that if the client had come direct the fee would have still been £450 because without the arrangement the conveyancer would have to spend more on advertising to generate new work. It is unlikely therefore that profitability of a forward thinking conveyancing business would improve if referral fees were banned. Instead these businesses would have to pay a high price for more general marketing initiatives. The only difference and one that means a lot to many practitioners is the latter situation would leave the lawyer to practice without ties and with integrity and professional independence fully intact.
The difficulty many practitioners encounter is the inability to compete for clients on a level playing field. Brokers and agents have access to the client at the very outset of a client’s desire to sell and or buy. The conveyancer does not get a look in! The opportunity presented by conveyancers to offer to the public direct Home Information Packs when they were obligatory, helped but as we know the present government in its wisdom did way with these. It is clear that if lawyers could get to the potential client first the client would have a far greater opportunity to avoid pressure from agents and brokers alike and perhaps be left to make a more informed choice.
Sadly I can not see any future government having the courage to bring in reform would provide this opportunity and for this reason right or wrong referral fees are likely to be here for many years to come.
Morgan Jones and Pett are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877000 or via email at davidpett@m-j-p.co.uk
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