There is nothing special about acting in a conveyancing matter that means your professional obligations of confidentiality, privilege and – most importantly – independence suddenly fade away.
The increasing practice by practitioners of copying real estate agents into all emails and other communications in the conveyance as a matter of course has come to Queensland Law Society attention.
This should not be done without fully informed client consent, and even then it is an unadvisable course of action.
While it might seem harmless to keep the agent up to date on proceedings, practitioners must bear in mind that the real estate agent in any given transaction is not the client and does not necessarily have the same priorities. The agent has a vested interest to see all matters proceed to settlement.
For a solicitor, the question of whether the transaction should go ahead is always a live one.
Consider a solicitor advising a buyer not to proceed as a result of a negative search result – if the agent is copied in to that correspondence, they may well contact the client and try to influence their decision rather than allow them the opportunity to consider the solicitor’s advice.
Copying third parties into client correspondence no matter which area of legal practice, might well waive privilege, and arguably cannot be done even if the client consents.
Even assuming the client can consent, obtaining that consent would involve a time-consuming and complicated process – the solicitor would need to clearly explain the concept of privilege and the consequences of waiving it, all the while fully documenting the process. Even then, there is no guarantee that a court deciding a subsequent dispute would accept the effort as sufficient.
Once a contract is in the hands of a solicitor, it is the solicitor’s retainer to act in the best interests of the client.
The agent need only be updated on the progress of the matter or variations to the contract provisions. Informing the agent that contract waypoints (such as finance approval) have been reached is fine, provided that the client instructs the solicitor to do so.
Practitioners may think that copying the agent is convenient/a time saver but ultimately, the above issues should discourage this practice.
In any event, prudent practitioners will advise their clients that it is the solicitor who has the client’s bests interests in mind, and the client should deal directly with the solicitor to ensure those interests are always to the fore.