Why do solicitor advice procedure regulations require collection of landlord details at client intake when solicitors advise on tenancy issues?

Question

I've been informed by a law firm that they are required by national regulations of the solicitors' authority to collect a landlord's name and address (not the address of the property in question, but the landlord's own operating address) before they can book in an advice session on a landlord-tenant issue, because it is required by regulations. I asked them what this is used for, and why it's required by the regulations (ie, what is the rationale and principle of the said regulation), and they couldn't tell me.

I was hoping someone here could shed some light on this question instead. I am quite interested in the princple and rationale behind the requirement (and, why can advice not be dispensed simply on a hypothetical basis?), however, more significant is where it gets sent, what its collection's purpose is, and what it's used for.

Edit: It would also be great if you could supply a citation of the specific regulation that imposes this requirement.

Note: a bit new here, but don't really know necessarily what the most suitable tags to be used are, so if any others have suggestions for more applicable and relevant ones, please don't hesitate to suggest!

Answer 1

This answer is an expansion on ohwilleke's answer, which explains that the reason probably involves avoiding conflicts of interest with other clients.

The relevant provisions in england-and-wales are to be found in the Solicitor Regulation Authority's Code of Conduct for Solicitors, RELs, and RFLs which has statutory force by way of sections 31 and 32 of the Solicitors Act 1974, section 89 of, and paragraphs 2 and 3 of Schedule 14 to, the Courts and Legal Services Act 1990 and section 57(2) and (8) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Conflict of interest

Rule 6.2 of the Code of Conduct states:

You do not act in relation to a matter or particular aspect of it if you have a conflict of interest or a significant risk of such a conflict in relation to that matter or aspect of it, unless [... exemptions omitted ...]

"Conflict of interest" is defined as follows:

[...] a situation where your separate duties to act in the best interests of two or more clients in relation to the same or a related matters conflict.

Own interest conflict

Less likely, but still possible (and therefore still a necessary component of compliance checks) is an own interest conflict (e.g. the solicitor's personal affairs are linked to the landlord in some way). In that case the relevant rule is 6.1:

You do not act if there is an own interest conflict or a significant risk of such a conflict.

An "own interest conflict" is defined as follows:

[...] any situation where your duty to act in the best interests of any client in relation to a matter conflicts, or there is a significant risk that it may conflict, with your own interests in relation to that or a related matter.

"Where it gets sent"

Ordinarily, it should not get sent anywhere without your permission, pursuant to rule 6.3:

You keep the affairs of current and former clients confidential unless disclosure is required or permitted by law or the client consents.

This is the case even if the solicitor doesn't accept you as a client. That's because "client" is defined as (emphasis mine):

the person for whom you act and, where the context permits, includes prospective and former clients.

There is also the common law principle of legal professional privilege which may protect disclosure by a solicitor of confidential information that a non-solicitor might otherwise have to disclose by law. However, to be applicable the information must have been communicated in relation to legal advice or litigation. The rules are a little complex and you can't assume that everything you tell a solicitor is protected by privilege.

Privilege and confidentiality under the Code are separate and overlapping rules, so what isn't protected by one might still be protected by the other. The main differences between the two are that (a) the law can override confidentiality but not privilege, (b) confidentiality is a duty (not to disclose) while privilege is a right (to avoid disclosure). The first difference is because of the exception for confidentiality (in rule 6.3 above) where "disclosure is required or permitted by law". Contrast that with e.g. Bowman v Fels [2005] EWCA Civ 226 at paragraph 90 where the Court of Appeal held that the Proceeds of Crime Act 2002 was not capable of overriding privilege.

Examples of disclosure being required by law are:

• Part 7 of the Proceeds of Crime Act 2002 which provides for compulsory disclosure of information to crime agencies under certain circumstances, together with "tipping off" provisions which prevent you from being informed of the disclosure.
• Disclosure during court proceedings e.g. Part 31 of the Civil Procedure Rules and Part 15 of the Criminal Procedure Rules.

Answer 2

The purpose is to avoid the possibility that the solicitor will inadvertently end up providing advice to more than one side of the same dispute or transaction, putting the solicitor in a conflict of interest situation.

In the simplest case, the solicitor might already represent the landlord that the tenant is seeking to discuss legal rights vis-a-vis.

Even if the advice is merely hypothetical, this is not O.K. A solicitor has a very high duty of loyalty to the solicitor's clients. Providing aid of any kind to someone adverse to the solicitor's clients that benefits that person, even if another solicitor would probably say the same thing, is a serious breach of that duty and is forbidden and sanctionable. It could get the solicitor kicked out of the profession in a worst case scenario. The duty of loyalty includes a duty to take reasonable care not to inadvertently or negligently act disloyally.

There is also a risk of a more subtle sort of conflict that has to be evaluated since many disputes and transactions are not just two sided.

For example, perhaps a solicitor a big commercial tenant client on the brink of a settlement with a particular landlord after lengthy and extensive negotiations (perhaps in a business lease renewal deal), and another prospective tenant client might, for example, have an interest in leasing the same property as your existing client at a higher rate. Representing both tenants/prospective tenants could creating a conflict between your two tenant clients. Screening clients based upon their landlord relationships helps solicitors to identify these conflicts and to prevent them from arising.

More generally, the best practice is for a solicitor to make sufficient inquiry prior to providing any legal advice to a prospective new client, to avoid having clients that have a conflict of interest with each other. This regulation (to the extent that it is really as specific as suggested) is simply a codification of this general rule in a specific, commonly recurring situation.

In large law firms, every single legal professional in the firm typically spends the first half hour or so of every day reviewing lists of new prospective clients and parties related to them in order to screen for potential conflicts of interest. (I used to have to do that when I worked in a large, international law firm for a while.) There would typically be one or more paralegals or administrators in the firm who do nothing but manage that conflicts of interest screening process.

Obviously, however, this requirement is a lot less burdensome if you are solo practicing solicitor who almost entirely represents individual human being and family tenants with isolated residential leases, and works in a large city where few clients have any connections to each other.