Conveyancing: surviving the pressure
What can the residential property sector learn from the frenetic and stressful rush to beat the SDLT deadline? Nicola Laver reports
It always was a high-pressured working environment and for relatively little return.
Throw in a global pandemic, home working conditions, demanding clients, lawyers worried about (or sick with) covid-19, caring responsibilities, lack of family and social contact – and a stamp duty land tax (SDLT) holiday to boot – the pressure cooker has heated up.
It’s hard to believe that just over a year ago at the time of the first lockdown, the residential market was on pause. Fast forward a year and, according to the Law Society Law Management Section’s first quarterly pulse survey covering the first quarter of this year, the number of new conveyancing matters increased by 54 per cent for conveyancing firms.
Now, at the time of writing, the pressure cooker is on ‘high’ – with three weeks to go until the SDLT holiday expires. Conveyancers throughout England, Wales and Northern Ireland are working days, evenings and weekends to try to complete transactions ahead of 30 June, many firms having recruited more lawyers to support existing teams.
Unsurprisingly, the situation is taking its toll. For many the damage has already been done; latent problems exposed. There are reports of burnt out conveyancers with some throwing in the towel, others switching careers or, at least changing practice areas. And just about all conveyancers are suffering extreme stress and risk burnout.
Quality of work
A significant problem many conveyancers have been publicly highlighting concerns the quality of conveyancing in some quarters, including from factory conveyancing organisations.
“In my 25-plus years in conveyancing, never have I seen such pressure in the profession”, comments Alistair McKinlay, a partner at Ridley & Hall in West Yorkshire. “Expectations from clients can be hard to manage at the best of times, but add into the mix some truly diabolical standards of conveyancing from some firms and it is a recipe for disaster…. for both clients and lawyers alike.”
He offers up an extract from an email recently received from a ‘volume conveyancing firm’ in the North West, which reads: “I can confirm reciept of the Draft contract pack, and enquiries will be raised as soon as I can. Although these were recieved from yourselves on 22nd April, I only recieved the file on 17th May from the Inception team [sic].”
As McKinlay comments: “This just sums up some of the challenges we face, when the variance in standards across the profession is so wide. I wonder if the buyer instructing that firm has any idea about the delay in the progression of their file? I know our client was absolutely disgusted and furious that their sale was being held back as a consequence.”
A former member of the Conveyancing Quality Scheme (CQS) technical panel for a number of years, “in my attempt to try to do something to help drive up standards”, McKinlay ponders: “Sadly, I fear that that scheme really has ‘no teeth’ and does very little to demonstrate ‘quality’ anymore.”
I put this charge to the Law Society. A spokesperson responded that the CQS is a recognised quality standard and that accreditation sets out the standard of competence, risk management and client service levels expected of residential conveyancing practices.
They also pointed out that all CQS-accredited practices go through annual assessments in order to maintain their accredited status. “When the pandemic hit”, the spokesperson added, “we were forced to put onsite assessments on hold and our focus is on supporting accredited practices during this challenging time. On site assessments will resume as soon as it is safe to do so.”
Jasbir Dhaliwal, a solicitor at Taylor Rose, recently recounted in a LinkedIn comment: “So as the week ends, the amusement doesn’t stop... and this is exactly what slows down some transactions. Selling a second floor flat. Buyer’s solicitors: ‘Please confirm if the property benefits from a conservatory’. Me: ‘We are selling the second floor flat. Buyer’s solicitors: the enquiry still stands’.”
Beverley Winick, a conveyancer at Nichols March recounts receiving an email from the other side: “’Please confirm your client has compiled with the covenants’ – there are none! ‘Please confirm you are instructed to act for your client’s lender’ – there isn’t one!”
This intensely busy period is exposing the fault lines that have existed for some time. Sarah Dwight is a conveyancing solicitor who sits on the Law Society’s Conveyancing and Land Law Committee and leads its residential property working sub-group.
She highlights specific issues of concern: “Provision of up-front information, managing clients’ expectations from the start, and getting estate agents and solicitors to work together more. Also that conveyancing needs to be better rewarded rather than being seen as a commodity which can be cheap – solicitors keep property secure and safe for lending purposes.”
It’s little surprise that the stress being exerted on conveyancers has reached an unbearable crescendo. There are reports of many conveyancing staff being off work with stress over the last 12 months; of conveyancers working 18 hours a day plus weekends; working in their car on holiday while the kids are on the beach; pf conveyancers spending the day fielding constant stream of calls and emails and doing the substantive work on the file in the evenings and at weekends.
One head of conveyancing, Angela Dunlop at Watkins Solicitors, wrote online: “Agent called my client saying I had ignored 400 emails from them! It transpired they had not sent one! Another agent set a deadline to exchange when our office was closed for Xmas. I was at hospital. Agent said (I quote) ‘all she has to do is make a 5-minute call’.”
A key challenge that resonates for all conveyancers is the time being wasted dealing with chasing from clients, agents and others.
Dwight states: “The volume of emails, and if no reply to an email within five minutes, a chasing phone call – this just stops the work from being done as efficiently as it can be.” As one conveyancer says, “the answer at 5.45pm will be the same as the answer at 9.05 the next morning”.
It’s against this pressure-cooker background that a particularly timely webinar on stress management recently took place, organised by The Conveyancing Foundation (see below).
In March this year, it launched the #BeKindWeCare campaign for those in the property and conveyancing industry who are suffering rising levels of mental health concerns.
Georgia Davies from The Conveyancing Foundation said the charity was driven to launch the initiative after an unprecedented year for the industry, when increasing numbers of conveyancers started reporting how rude and unpleasant behaviour was creeping into dealings between professionals because everyone was particularly stressed.
Meanwhile, there is increased opportunity for errors and negligence as conveyancers continue to battle through to the end of June and beyond.
Conveyancing, already notorious for being the highest risk practice area for professional indemnity insurance (PII), has become even riskier.
In a recently published review of the spring 2021 renewal period, Brian Boehmer of Lockton Solicitors warns of the impact of the SDLT.
He writes: “While this SDLT holiday has had a positive impact on the volume of conveyance work, insurers have a number of concerns. Notably, a greater volume of conveyancing work being undertaken increases the likelihood of more claims materialising.
“There are also the increased risks that a fixed deadline creates, especially if this results in fee earners rushing work, or worse – such as circumnavigating the risk management steps that you have in place.”
A further risk area Boehmer highlights is conveyancers forgetting to appropriately warn clients that they cannot guarantee the transaction will be concluded in time, particularly given the number of factors which mean the solicitor has no influence on the speed of its outcome.
He comments: “In light of this, we are aware that until the SDLT holiday has passed, [insurers] will not be revaluating their ceiling tolerance that they have introduced for new business risks with conveyance exposure.”
He adds that the SDLT extensions and the tapering provisions “mean that it is increasingly unlikely that the current ceilings some insurers impose for new business with an exposure to this practice area will alter positively, in time for the forthcoming October renewal season.”
This is not great news for conveyancing firms, particularly when insurance market conditions are continuing to harden. But could the situation spell trouble for conveyancing factory outfits?
Amit Sharma, a consultant solicitor and director of Solve, the business lawyers, comments: “If the PII market and Solicitors Indemnity Fund is going the way I think it is, factory conveyancing may potentially implode on itself.
“If the work is to be done properly let the lawyer focus on matters of title, let the lender’s legal department deal with the lender’s legal work and they can insure themselves and let the surveyors deal with non-desktop matters.
“I have always said to clients, I decide what I charge, not other lawyers or every man and his dog.”
There is also the much bigger picture to consider. Even before March 2020, there were fault lines in the conveyancing profession that either lay dormant or were beginning to crack, waiting to be exposed.
This frenetic period may be about to fizzle out but the more important questions it leaves are – what can the sector learn from this and what changes does it demand?
As Duncan Baldwin, a consultant at Smith Sutcliffe Solicitors, points out: “It’s been a perpetual race to the bottom in the 36 years I’ve been in the profession. We charge little more, and in many cases less than we did in the 80s, but the regulatory and compliance requirements have gone through the roof (probably affecting more than 25 per cent of it in the process).
“We need to get away from conveyancing being seen as a price-led commodity and recognise the complexities, importance and risks we face in dealing with transactions.”
Marion Ellis, a surveyor at BlueBox Partners with more than 20 years’ experience in the residential property sector, says: “We need to look at the whole buying process from start to finish. As an industry we all often work in silo but what impacts one of us has a knock-on effect on another.”
She also warns of the “real risk of buyers not getting the advice they need in time and treating the [surveyor’s] report like an insurance guarantee. It’s not, it’s a tool and if not used to get quotes, renegotiate and follow the advice provided to make an informed decision about a property purchase, buyers leave themselves short and exposed on a large spend”.
Stephen Desmond, a specialist property law trainer, talks about how, over his interactions with conveyancers on LinkedIn in recent months, he has been struck by the extent of the strain residential property lawyers have been working under throughout the SDLT holiday.
He comments: “During this frenetic period they have had to cope with unprecedented demand for their services, covid-related delays in the entire conveyancing system, which have been beyond their control, and the unreasonable demands and conduct of some estate agents and clients.”
“As a result” suggests Desmond, “I believe that the regulators and the entire profession need to prioritise the mental wellbeing of property practitioners over the long term. Restoring work-life balance is another priority.
Desmond points out a particularly sore point for specialist conveyancing lawyers – their conveyancing fee. “Sale and purchase fees have been far too low for far too long”, he states. “So conveyancers across the board need to raise their fees and keep them at that level after September when the stamp duty holiday ends.”
He also proposes that conveyancers should charge additional fees whenever a client bombards them with unnecessary emails and telephone calls. Desmond points out: “Such time-wasting inevitably causes delays to transactions and often results in lawyers doing essential work out-of-hours when the phones are switched off.”
He said “inconsistent practice standards” must also be addressed – while some firms comply with the Law Society Conveyancing Protocol – others don’t.
Dwight concurs on the need for a fee increase: “Conveyancing is not seen as sexy or glamourous but just a hard slog and perhaps it could have a revamp to ensure that solicitors want to work in this area of law - it can be incredibly fulfilling ; there is no better feeling for a client than telling them that they can pick up the keys.”
There is also the issue of many parties and stakeholders in many a conveyancing process. Dhaliwal acknowledges that although the conveyancing process has moved into the digital word, further improvements are still needed.
“There are still too many parties involved in a single transaction from a surveyor, estate agent, mortgage broker, managing agent, to the lender solicitor and anyone else in between. As the saying goes ‘too many cooks spoil the broth’. “
Then there are concerns of a brain drain of good conveyancing solicitors. So how can firms mitigate the risk of losing their conveyancing talent?
Lloyd Davies, who chairs The Conveyancing Foundation, said: “I believe that conveyancers have faced one of the most stressful times in the history of the industry…
“It has and will be crucial for legal practices to manage capacity as well as to reward staff well for all of their hard work and allow them the flexibility to manage that work in a way that suits them as much as possible.”
“Not only do they need rewarding with increased salaries, bonus payments and overtime but we also need to look ahead from this unprecedented time to their individual personal development”, he added.
Georgia Davies points out that the last year or so in the conveyancing industry “has made and will make more firms realise that mental health is not just a buzzword and something firms should pay lip service to, but is something that is crucial to staff wellbeing and the future sustainability and profitability of their firm”.
Davies has a future vision not only for conveyancing, but across the property world and other industries: “Firms [must] really acknowledge that they are nothing without the people that work for them.”
Managing conveyancing burnout: a webinar
The Conveyancing Foundation webinar featured Angus Lyon, a counsellor and former property lawyer; and Hannah Beko, a commercial property lawyer and mentor; with panel sessions with the CEOs of its charity partners, Sarah Edmondson from Agents Together and LawCare’s Elizabeth Rimmer.
Lyon highlighted the demands of professional life which have multiplied for most of us over the last year. “The risks of burnout of have multiplied,” he stated.
He considered the definitions and symptoms of burnout (job demands can exceed human limits) and went on to set out the stages of burnout.
But he pointed out: “It is so hard to see the signs when work is so full-on… not seeing the wood for the trees nd waking up to another groundhog day.”
Hannah Beko acknowledged: “It’s not a simple thing to manage our stress and reduce our chances of burnout. If it was easy, everyone would be doing it and it wouldn't be the huge issue that it is, particularly in our profession.”
She went on: “[We can be] looking at the work in front of us and we just don't know where to start. We don't know which matter to go to next. We're trying to decide, do we need to raise enquiries on this? Are we ready to report to the client, etc? And we just can't make a decision. We can't sign off on it… it's like when you've done a report on title and you just keep going back to it and keep going back to it because you think there's something you've missed or more that needs to go in there. That being stuck.
“We can call it analysis paralysis.”
Beko shared a personal story of the chronic stress reactions she experienced five or six years ago, when she’d get an email or a phone call from the client asking her to get in touch urgently.
“Because of the stress I was under and the effect that had on my brain… I would go straight from seeing that email or that phone call [and go] along this thought process that was, ‘I've made a mistake’, ‘I've done something wrong’, ‘I'm going to lose the client’, ‘I'm going to lose all my work’, ‘I'm going to lose my house.’
“That was the catastrophic thinking that was starting to go on because of chronic stress that I was under.”
Now, she can take a different perspective. “So instead, when something happens like the same situation, I might attach a different meaning to it, which would be, oh, the client needs to speak to me and no more than just the client needs to speak to me. So, my feelings are, well, I need to get back to them.”
But how might this look in practice, particularly for conveyancers at the place they are now? One question to the panel was, ‘how can we bring those tips into the workplace? How would that look?
Beko’s biggest tip (which she said is what she has seen work with her clients over the last year) is just talking about it. To realise you're not alone is “so powerful”, she added.
And what of the role of firm leaders? It’s Rimmer’s view that law leaders “perhaps aren't as engaged as they ought to be in this”.
She adds: “I think it's helping people see that in your law firm, your greatest asset is your people, your legal work is done in people's minds. And looking after the mind of your staff should be a top priority for you.”
Rimmer also warned of the reputational risk to firms when staff have poor mental health and points to the many cases around junior lawyers making mistakes and covering them up – cases relating to toxic workplaces where better supervision and support was and is needed.
“It's not only about being nice to people and doing the right thing, but it also makes business sense to be looking after people's mental health”, she added
Georgia Davies said one of the reasons the Conveyancing Foundation started #bekindwecare was “because we saw there was a major breakdown between estate agents, lenders, conveyancers with each other in communication. People were getting quite nasty. It's a real time of high stress and it's a high-pressure environment at the moment.”
She asked the panel what could be done to improve the sometimes fraught relationship between solicitors and estate agents?
“I wish I had the silver bullet to that. I really do”, responded Sarah Edmondson, “But I can certainly give it a go. This is about not just us now. It's about the future and the future of our industry, both separately and together.”
She draws on prior professional experience: “When I was an estate agent, I loved the conveyancing firm we worked with. We had a fantastic relationship. And that started because we set out very clearly our expectations of each other... Take a few minutes to talk about, ‘how are we going to make this work?’ and then run it through.”
Both the lawyers and the agents are just “trying to do their job really well but”, she adds, “because we haven't set out clear communication strategy at the beginning of the relationship, then all goes to pot really as we as we get further down the line.
“So together, if we can work to make it less emotional by being clearer across the board to the consumer, to the agent, to the lender, to the conveyancer, actually, we might find out that we reduce the stress levels and we get where we all want to be.”
Nicola Laver is a non-practising solicitor and is editor of Solicitors Journal