The balance of opinion in the profession appears to have swung over the past couple of years from opposing to supporting compulsory separate representation of borrowers and lenders in mortgage transactions.
The reasons are not difficult to find. As lenders in turn throw up new rules and criteria over membership of their panels, often via diktat rather than discussion, while taking an ever closer interest in solicitor compliance with the CML Handbook where a loan has gone bad, it would not be surprising if conveyancing solicitors decided that enough is enough.
Thought should be given, however, to how lenders might react, given that for most, Scotland provides a small percentage of their business.
It is interesting that Graham Matthews, the dissenting member of the working party that recommended the change to be put to the AGM, is not necessarily opposed to sep rep in principle but suggests that the profession is rushing into it without knowing how it will operate in practice – see his comments in this month's lead feature.
Even supporters of the change recognise that there will be issues to address until the new system settles down, so if we are to go ahead, we owe it to the public to anticipate these as far as possible and how to deal with them. CML members remain opposed both to the principle of change and to it happening at a time when they face other regulatory change, and could make life awkward, even if it is to be hoped that they will co-operate with any practice rule that passes all the regulatory hurdles.
All these issues should be given an airing at the AGM. There are strong reasons for supporting change, but the issue is far from cut and dried.
One other aspect is worth flagging up: the views of the Law Society of England & Wales, which also appear from our feature this month. While formerly attracted to the “sep rep” rule, it now seeks to preserve the status quo, on the view that given the market changes since legal services reform, to change the practice rules in this way would only be handing business to solicitors’ competitors.
The market in Scotland will not be liberalised to the same extent, and it is possible that the Law Society of Scotland will find itself the sole regulator of relevant legal services providers. But that is not inevitable, and solicitors should still consider whether there is a risk of being outflanked at some future stage before they commit to the move.