Is the writing on the wall for Panel Conveyancing?

Arrangements whereby a client is introduced to a conveyancer by an agent or broker through a third party panel manager have over the years become a major feature of the property industry.   

It was only recently the online B2B platform, ULS Technology, announced the ‘take over’ of the Conveyancing Alliance for an initial £7.2m.  This move was herald as part of ULS’s strategy to become the Country’s leading handler of conveyancing.

So how do these arrangements work?

The model is pretty simple.   The panel manager provides agents, brokers and lenders with online access to a managed panel of conveyancers to which their clients can be introduced.   The access to, and management of, the panel of conveyancers is made possible through an online platform and this technology allows the referrer to choose a conveyancer from the panel, to view the price charged by them for the conveyancing work and to enable the referrer to earn and track a commission for the introduction. 

The panel manger charges a fee for the management of the panel solicitors, and also raises additional revenue through selling ancillary services such as searches and identity checks to the panel conveyancer.

The panel managers are not regulated even though the majority are heavily involved in generating a fee quotation for the end client (consumer) which will detail all of the fees payable and which will include the hidden commission payable to the referrer and the fee charged by the panel manager for the service/facility it is providing to the referrer.

The quoted fee will also include the cost of the ancillary services provided by the panel manager such as the cost of the searches. 

The success of these panels is very much dependant on bringing more referrers on board and making sure the referrer persuades the client to make use of the panel of conveyancers provided.   The will often be guided by the agent or broker on choice of legal representative ( normally on price)  and it is this influence which has played a major part in the growth of these arrangements.

So what does this mean for the end client?

The panel manager will no doubt argue that those who are placed on their panels are closely vetted and that through review systems, they can guarantee the conveyancer appointed to handle the client’s transaction will provide a reasonable level of service.  

In addition to this the panel manager will be there to chase the panel conveyancer, and also handle complaints and generally oversee, through the panel manager technology, the overall progress of the transaction. Some of the technology will also allow clients to view the progress of the transaction online.  There is no doubt that many of these panel solicitors provide a first class service to the client.  

The major problem lies with the cost of the transaction.  

Not many clients know that when a quote is produced by the panel manger on behalf of the panel conveyancer that the fee for the legal work will have built into it not only the fee paid to the referrer for the introduction ( commission ) but also the panel manager's fee.  In addition to this, the quote will often include the cost of searches and other third party costs which will be a much higher level than that payable had the client sought a quote directly from the conveyancer. 

The reason for this is that many panel managers make it a condition of membership that the panel conveyancer must purchase services from the panel mangers chosen supplier.   The reason for this is obvious.  The panel manager is purchasing the service in at a low price and then often charging the client through the panel conveyancer a much higher fee. Often the client is paying £100-£150 more for the searches than they would had they instructed the conveyancer direct.

Don’t get me wrong, providing commissions for referrals is disclosed ( and are not too excessive) by both the referrer and the conveyancer, there is nothing untoward about it – it’s a practice which has featured in most service industries for centuries. 

The real question is whether knowing how these arrangements work, can it be said that the panel conveyancer in accepting the client’s instruction is acting in the client’s best interests?  In other words should the panel conveyancer who will only be picking up a fraction of the fee quoted and payable by the client, be doing more to protect the client?

It is not unusual for a panel conveyancer to receive a £250 fee out of a fee quoted to the client of £1,000!

So what are the obligations on the panel conveyancer?

To begin with, I do understand why many conveyancers are attracted to the lure of a panel arrangement.  Most of those who work on these panels do so to ensure a continuous flow of work and comprise mainly of those large conveyance providers who are able to make money on the basis of volume transactions.   In the main they provide as I say above, a good service.

The big question however is, are some of these conveyancers failing their clients by not highlighting the details of these panels especially when it comes to presenting and explaining fees.

The regulatory and legislative framework

The starting point for those regulated by the Solicitors Regulation Authority is the SRA Code of Conduct 2011 ( The Council of Licensed Conveyancers' Handbook contains similar obligations), and in particular the ten mandatory Principles which include the  obligations to  act with integrity, not to allow one’s independence to be compromised and to act in the best interests of the each client.

The outcomes used to describe what is expected to achieve compliance with the Principles are helpful in understanding what is required of a panel conveyancer working within a ‘panel’ arrangement.

The relevant outcomes in this context are as follows:

• To treat client’s fairly
• To only enter into fee arrangements which can be considered suitable for the client’s needs and circumstances and take into account the client’s best interests.
• To ensure clients are in a position to make informed decisions about the services they need, how their matter will be handles and the options available to them
• To ensure clients receive the best possible information, both at the time of engagement and when appropriate as their matter progresses, about the likely overall cost of their matter;
• To properly account to clients for any financial benefit you receive as a result of your instructions
• To ensure that one’s ability to act in the best interests of the client is not impaired by, inter alia, commercial relationships.
• To ensure one’s  independence and professional judgement are not prejudiced by virtue of any arrangement with another person
• To ensure clients' interests are protected regardless of the interests of an introducer or fee sharer or your interest in receiving referrals;
• To clients are informed of any financial or other interest which an introducer has in referring the client
• Whenever one recommends that a client uses a particular person or business, the recommendation is given in the best interests of the client and does not compromise one’s independence.
• To ensure clients are fully informed of any financial or other interest which one may have in referring the client to another person or business.
• To ensure clients are in a position to make informed decisions about how to pursue their matter.
• To only put the client in touch with an unregulated business where the client has given informed consent.  

In looking at the conduct and assessing whether or not the Principles have been contravened The SRA set out examples of the type of behaviour expected and these are labelled as ‘indicative behaviours’. They include:

• explaining any arrangements, such as fee sharing or referral arrangements, which are relevant to the client's instructions
• clearly explaining fees and if and when they are likely to change
• ensuring that disbursements included in your bill reflect the actual amount spent or to be spent on behalf of the client
• any referral to a third party that can only offer products from one source is made only after the client has been informed of this limitation

It is clear from these requirements that a responsible conveyancer will be expected when working on a panel to be alert to the following:

• Obtaining referrals from one source and becoming economically dependent on that source could be viewed, per se, as a situation where there is a real risk of the panel conveyancer’s independence being compromised.   Given this, a responsible panel conveyancer would need to demonstrate that on receiving the instruction, that the client has been made aware of the relationship with the panel manager, perhaps even to the extent of explaining the structure of the arrangement and the contractual requirement to only make use of the services such as searches supplied through the panel manger. 
• Information on fees and how these are split should be make known to the client at the outset and should be clearly shown in the client’s bill.   The client should be told how much the broker/agent is receiving and how much of the quoted fee is to be paid to the panel manger. The panel conveyancer should insist on seeing what information on costs and the split between all interested parties has been given by the broker/agent and panel manager. The panel conveyancer should also be privy to what commercial arrangement exists between the introducer and the panel manager. The client should be told at the outset about the probability that the panel Manger will be making a profit from the sale of searches and provision of other services which the panel conveyancer is obliged to supply under the commercial arrangement with the panel manager.   
• Some agents and other introducers who using the panel manager to engage a conveyancer make their selection not following extensive due diligence but on price. The reasoning here is that the less the lawyer is paid the more there is to share with the introducer and the panel manager.   For this reason some panel managers put pressure on the conveyancers to keep their prices low, particularly if they are looking for high volumes.   Knowing how this works panel conveyancers need to make sure that the client is happy to proceed with them and that the client’s expectations (based on a much higher fee than the conveyancer will receive for the work) can be safely met in full. It is important that the client’s interests are fully protected regardless of the interests of the introducer/panel manager.  
• The close working proximity between the introducer, panel manger and panel conveyancer can create confusion for the client, and bearing in mind the financial connection between them, there is a strong case that the consent of the client to be part of that arrangement should be sought at the outset.  The reasoning behind this is that as the introducer and panel manager do not offer legal services they will be viewed as unregulated businesses.

The sanctions for proven contravention of the Principles can include firm closure and/or a requirement to refund to clients fees which the client would not have incurred had there been compliance.

This could lead to a business having to recompense all clients for which the business has acted in the past in connection which the arrangement.

Panel conveyancers also need to be aware of the requirements of the Consumer Credit Act 2015 as can be seen from below.

So what rights do clients have if they are involved in an arrangement of this type?

If there is a secret profit contained within the quote for the service irrespective of whether the panel conveyancer benefits from it, it is arguable that failure on the part of the panel conveyancer to make this clear to the client at the outset, or more specifically act to protect the client’s interests by ensuring there is complete transparency on fees, the client has various options which are not mutually exclusive.

The client can raise a complaint with the Legal Ombudsman who has the power to require the offending panel conveyancer to pay compensation up to a limit of £50,000 including compensation for emotional distress. The LeO is not very forgiving when it comes to dealing with a proven complaint of hidden fees and or failure to provide clear information on fees and how these are calculated. 

The client also has the right to report the conduct to the applicable regulatory body for investigation and this could give rise to disciplinary action if it is found the panel conveyancer has contravened any of the relevant principles of the Solicitors Code of Practice. 

A client can also challenge hidden fees and charges under the Consumer Rights Act 2015 as this legislation means that key terms of a contract, including price, may be assessed for fairness unless they are both prominent and transparent. 

Terms may be deemed unfair if:

•          they are contrary to the requirements of good faith - meaning they must be designed, negotiated and entered into with the consumer in a fair and open way

•         they cause a significant imbalance between the rights of the supplier and consumer to the detriment of the consumer

If the court decides that a term is unfair the client may be able to ignore the term or even cancel the contract without having to pay a cancellation fee.

Conclusion

It is clear conveyancing panels are unlikely to disappear and there will be conveyancers who will wish to continue to use the service they provide.   Commercially I can understand this and providing there is complete transparency as regards fees and clients are made aware of how the arrangement works, there should be no reason to doubt the longevity of this model.

However, there are inherent risks associated and conveyancers do need to considered these very carefully, especially given the severity of the sanctions that can be imposed. 

The safest course is to look to establish and work within much simpler referral networks where there is greater control over the relationship and where it is far easier to ensure the clients best interests are served and protected.

For the client the best option and 'no brainer' is to look to engage a conveyancer direct and not through an intermediary,  unless the client is happy to be guided by an introducer and is aware of the financial relationship, if any, which exists between the referring agent/broker and conveyancer.  

So where does this leave the panel manager?  Probably in a ‘win, win’ situation since even if there was a mass exodus of panel conveyancers it probably would not represent a major shift in direction for these companies to offer conveyancing services direct to clients through well-established networks of brokers, agents and lenders.  Many of these companies are well placed to become large providers of legal services in their own right.

David Pett 

MJP Conveyancing are solicitors who provide legal advice and services to clients based in England and Wales and who can be contacted on 01603877067 or via email at david@mjpconveyancing.com