There has been concern for some time that some solicitors’ firms do not recognise that a special duty of care is owed to vulnerable clients. In order to ensure that the interests of a vulnerable client who is disposing of property are properly protected, that client should be represented by a different firm to the firm representing the purchaser.

There has been negative comment from the judiciary on this issue in many cases over the past number of years. For instance, in the case of Sean Murray and another v James O’Donnell and others in 2004, Mr Justice Quirke stated as follows: “I note with some uneasiness that solicitors are permitted by the Law Society to act on behalf of both the vendor and purchaser in transactions of this kind. Conflicting interests are bound to arise in such circumstances, and I have no doubt whatsoever that the duty upon a solicitor who is acting on behalf of both parties in the circumstances which have arisen in this case is particularly onerous … Since the Law Society is apparently prepared to permit this practice (notwithstanding the potentially conflicting interests to which I have referred), I think it would be helpful if the Law Society would draw up and publish strict guidelines to be applied by solicitors who chose to act on behalf of both vendor and purchaser in transactions involving the transfer of property and, indeed, perhaps in other transactions also. It would also be helpful if such guidelines were rigidly enforced by the Law Society.”

The Council of the Law Society has now approved the following guidelines:

1. A solicitor or firm of solicitors should not act for both parties to a property transaction where one or both of the parties is a vulnerable person,
   
2. Practitioners should note that the characteristics of vulnerability are not exhaustive and include a person who, by reason of age, infirmity, mental illness, mental incapacity or physical disability, lacks the ability to make an informed or independent decision regarding the acquisition or disposal of property,
3. A property transaction includes a mortgage, lease, transfer, disclaimer, release, easement and any other disposition of property, otherwise than by will or donatio mortis causa, and also includes an enforceable agreement (whether conditional or unconditional) to make any of the foregoing dispositions.