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tdlawyer
tdlawyer, Lawyer
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Experience:  11 years experience of general practice.
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hi I am an Executor of an estate, and my Solicitor is now

Resolved Question:

hi
I am an Executor of an estate, and my Solicitor is now stating that there has been a conflict of interest and can no longer act for me. He has emailed me with a Notice of change of legal representative. Am I legally required to sign this? The Solicitor states that if I do not sign it he will apply to the Court for removal and apply for costs against me. Is this allowed? At present the case is under investigation by the Legal Ombudsman.
Thanks.
Debbie
Submitted: 2 years ago.
Category: Law
Expert:  tdlawyer replied 2 years ago.

tdlawyer :

Hello, welcome to the website. My name isXXXXX can assist you with this.

tdlawyer :

If there is a conflict of interest, then yes, a the solicitor can terminate his retainer with you. It sounds like this has been done in your case, and accordingly, he can request you to sign a notice of change. If you do not do this, then he can apply to the court for a declaration that he is no longer acting. If he has to apply to court, then the court might award him his costs of applying if it considers your refusal to sign the notice of change of solicitor to be unreasonable.

tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience: 11 years experience of general practice.
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Customer: replied 2 years ago.

hi


If the Solicitor is no longer acting because of the conflict of interest; where do I stand legally due to a failed Tomlin Order that we agreed to (but we were never told the type or name of order) by Solicitor acting? We agreed the Tomlin Order on 28-03-13 so 6 months would expire on 28-09-13. Yet the Solicitor stated in December 2013 that the court didn't stamp it until May 2013 some 2 months later. We were not informed of this by the acting Solicitor. My problem is the Solicitor failed to act within the timing of the Tomlin order which was 6 months. Also the Claimant breached the terms by not removing a Caution on the property I was to sell. As a result the Tomlin Order dates have now expired completely. I would like to stay unrepresented, but would like to know if it is legal to write to the court myself. Is this allowed? If so how would I go about this without applications for costs being made against me as we followed the terms but the Claimant did not.


Thanks

Expert:  tdlawyer replied 2 years ago.
Ah, I see. Okay, I cannot say where you will stand with failed Tomlin Order as I do not have access to the papers and that would be crucial.

What I can say, is from the limited information have provided, it would appear that you may have a professional negligence claim against your solicitor. I would therefore strongly encourage you to see another solicitor immediately and see what can be done. It may be possible to find a solicitor to do this kind of work on a no win no fee basis.

You can remain unrepresented in the executor action, if you wish, but I would not recommend that, at least until another solicitor has reviewed the position of what the former solicitor may have done/not done etc.

Remember, you have to act professionally in your role of executor, and you have duties arising in that position. Whilst I appreciate you might not want to deplete the estate assets etc., getting initial advice would be a prudent and entirely proper thing to do, especially if that can be obtained on a no win no fee basis.

Tony
Customer: replied 2 years ago.

Hi


I have done everything I possibly can as Executor. I am owed thousands of pounds by the estate as I have been paying the bills since July 2012. I'm totally unrecognized and overlooked in all this. I've even had to change the term on my mortgage because of it from 8 years to 14 years.


It is the Claimant and the Solicitor who have caused me all the problems.


At present I'm tied to Solicitors fees of £8445 for something that didn't occur and they made a hash of. They are denying negligence but have admitted poor correspondence. For this they only offered reduction of £1650. Hence the Legal Omudsman. Even if I get negligence solicitor for no win no fee, I still have to deal with the Tomlin Order. The case is a complete nightmare! I think the lesson I have learnt from this is never agree to a Tomlin Order. There is nothing in the order to protect us if failure occurs. There is no default clause if Claimant fails on his part.


The only default was to sell the house on the open market after the 6 months expired. But I can't do that because the Claimant placed a Caution on the property so I can't sell to anyone. The only way forward is to go back to court and this will be expensive. Claimant v. difficult.


Thanks


Debbie


 


 

Expert:  tdlawyer replied 2 years ago.
Hi Debbie

This sounds like it's a really unfortunate case, I'm sorry to hear of the problems you've had.

Normally, it's not possible to "get out of" a Tomlin Order, because it's made by consent, just like any other contract. So you're likely to be right, in that you have to honour it, unless you can say it should be set aside on some other legal basis, and regrettably, a solicitor not getting it right it not a good enough reason.

I appreciate that going back to court might be expensive, but sometimes, it can be the only option. That said, it might be worth mediating with the solicitors that you think got it wrong, because their insurer might be keen to seek to resolve this for you before you end up going to court. That said, it's important to take advice on what it is you might be looking to settle for!

Tony
Customer: replied 2 years ago.

Hi


if you were in my shoes what would you do?


What would you do in regard to the Tomlin Order taking effect?


How would you deal with the Claimant once and for all?


The Claimants Solicitor has no intention of ever solving the matter, it's useless trying to negotiate anything.


Thanks


Debbie


 


 


 

Expert:  tdlawyer replied 2 years ago.
If I were you I would go and see a solicitor promptly and get the matter reviewed fully. This includes the potential claim against the old solicitors and the conduct of the existing litigation.

It's difficult to give more constructive feedback that this because I don't know enough about the claim.

Tony
Customer: replied 2 years ago.

Hi


In order to act won't a solicitor need my file from the last solicitor? I can't see them releasing this unless they are paid their fees first or receive assurance from a new solicitor.


The only proof I have here are my email correspondences.


So are you advising I just need a negligence solicitor to deal with everything in this case on a no win no fee basis not just a solicitor?


Thanks


Debbie



Expert:  tdlawyer replied 2 years ago.
You should go and see another civil litigation solicitor.

You will need the files, but the Court has special powers to order delivery up on the file if they will not provide it to you until it has been paid up (i.e. exercising their lien).

If the court believes that have something to answer for here, I expect it will be more likely to order delivery up of the files for you.

Tony

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