Commerce over care: surety client protections 20 years on from RBS v Etridge (no.2)

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Rowan, Eleanor Louise ORCID: https://orcid.org/0000-0002-3653-4632 (2021). Commerce over care: surety client protections 20 years on from RBS v Etridge (no.2). University of Birmingham. Ph.D.

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Abstract

It has been 20 years since the House of Lords handed down its judgment in the Royal Bank of Scotland v Etridge (No.2). In this case, it was held that solicitors should deliver independent legal advice (ILA) to those who provide security for a loved one’s lending (the common situation being a wife remortgaging the family home for her husband’s business). This thesis, for the first time, empirically explores how solicitors deliver ILA to surety clients post-Etridge. It does so through interviews with 28 solicitors who have experience delivering ILA and/or solicitors who have experience defending possession proceedings for past surety clients post-Etridge. My interview data shows that there is a significant and concerning gap between how Lord Nicholls (who provided the leading speech for the House of Lords in Etridge) intended ILA to be delivered by solicitors and how ILA is, in fact, being delivered. Drawing on a web of theories that I have drawn together, which relate to Carol Gilligan’s Ethic of Care and Lawrence Kohlberg’s Ethic of Justice, I suggest that ILA solicitors are required to deliver ILA (in part) relationally. While my close analysis of Etridge and the SRA Code of Conduct brings me to the view that ILA solicitors are required to lawyer relationally (prioritising Dana Remus’ relational lawyering dynamics of trust, judgement, loyalty, service, and empowerment), my empirical insights make clear that most of my interviewees instead appear to deliver ILA in accordance with a market-exchange model of lawyering (in which they prioritise the means-ends of the secured lending transaction and provide tick-box and objective ILA). I suggest that the reasons why most of my interviewees deliver ILA in accordance with a market-exchange model of lawyering are complex and multi-faceted. For instance, I suggest that some interviewees deliver ILA in accordance with a market-exchange model because this is their usual lawyering approach with commercial clients (maybe because they deliver ILA infrequently), and that some interviewees deliver ILA as a market-exchange because they are loyal to their own interests over the surety client’s interests. In addition, my data also shows how difficult it is for past surety clients to defend possession proceedings or to bring actions against solicitors for deficient ILA. Taken together, my work suggests that the House of Lords’ judgment in Etridge has done more to protect lenders’ interests than surety client interests. What we see is complacency over compliance, commerce over care, and (solicitor) self over surety.

Type of Work:

Thesis (Doctorates > Ph.D.)

Award Type:

Doctorates > Ph.D.

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