In the 1990s there were a plethora of cases where sureties (usually wives facing possession of their family home), brought actions against lenders for failing to protect them from the undue influence of their husbands when they entered security agreements. The House of Lords in a combined appeal (Royal Bank of Scotland v Etridge  2 AC 773), provided guidelines on how lenders can protect themselves against such claims, to ensure that they can enforce these types of security transactions where the husband defaults on loan repayments. It was held that where the lender had notice that the loan is not for the mutual benefit of the surety and the principal debtor, they must ensure that the surety or guarantor receives independent legal advice before the transaction is complete. The typical scenario is where a wife uses the family home to secure the business debts of her husband.
Lord Nicholls provided detailed guidelines on how the advice should be delivered by solicitors and outlined lender responsibilities in ensuring that the correct information, about the proposed transaction, is provided to the nominated solicitor. In summary, a surety must be advised on the nature of the transaction in a private meeting with a solicitor, without the principal debtor being present. Only when a solicitor has completed providing independent legal advice and has provided a certificate of independent legal advice to the lender, are lenders protected from future litigation under the equitable doctrine of undue influence.
Nearly 20 years after this seminal judgment, there has been no empirical exploration into how independent legal advice of this nature is provided in practice to persons contemplating suretyship. I want to explore how solicitors, who provide this advice, view their relative responsibilities and deliver their advice. I want to know if they have ever refused to provide a certificate of independent legal advice and if so, for what reasons. I am also interested in lender-lawyer interaction. Effectively, are the Etridge guidelines followed in practice? Also: How do lawyers feel about their professional risk associated with providing ILA? Furthermore, using vignettes I want to explore lawyer ethics in relation to ILA and discover where my participant's see the ‘red line’, resulting in a refusal to provide a certificate of ILA to the lender. Ultimately, how have the Etridge guidelines been integrated into practice and are these rules compatible with other professional rules solicitors must follow? As of summer 2018, I have completed my data collection. I have interviewed 28 solicitors from various types of firms across the country (but predominantly in the West Midlands), who provide ILA to sureties.