Avoidance of Delay in Concluding Missives
It is increasingly common for Missives to be in an unconcluded state until shortly before or even at the date of entry. While solicitors require to have regard to the interests of their clients and to take their clients' instructions, they must have regard to the principles of good professional conduct and may not accept an improper instruction. They should not knowingly mislead professional colleagues and must act with fellow solicitors in a spirit of trust and co-operation (Code of Conduct for Scottish Solicitors articles 2, 5(a) and 9).
In residential property transactions solicitors acting on behalf of both purchasers and sellers have a professional duty to conclude Missives without undue delay. Clients should be advised at the outset of this duty and of the consequences.
Where a solicitor for a purchaser is instructed to submit an offer but to delay concluding a bargain until some matter outwith the selling agent's control has been resolved e.g. the purchaser's own house has not been sold; a survey or specialist's report is required; or funding arrangements are to be confirmed these circumstances should be disclosed to the selling solicitor. If the purchaser instructs the solicitor not to disclose such matters to the selling solicitor, the purchaser's solicitor should withdraw from acting. To continue acting could amount to a breach of article 9 of the Code of Conduct by knowingly misleading a fellow solicitor. Where a purchaser instructs his solicitor to delay concluding a bargain without giving any reason the solicitor should similarly withdraw from acting.
Where a selling client instructs a solicitor to delay concluding a bargain having given an indication that an offer is to be accepted, the reason for that delay should be disclosed to the purchaser's solicitor. If the seller instructs the solicitor not to disclose the reason, or does not give a reason for such an instruction, the solicitor should also withdraw from acting.
If a solicitor whether for seller or purchaser withdraws from acting in terms of this Guideline, the confidentiality of the client should not be breached without the client's authority but when intimating withdrawal that should be done by stating that it is in terms of this Guideline.
