Section A - Introduction
This Focus Note provides guidance for Managing Trustees who are in the process of instructing a solicitor or other legally qualified representative such as but not limited to a licensed conveyancer, legal executive or barrister (Legal Adviser) to act on their behalf in a transaction or provide advice on a particular issue that has arisen.
Section B - Why do you need to instruct a Legal Adviser?
Whilst TMCP, as Custodian Trustee, is responsible for overseeing transactions and TMCP Legal provide guidance and assistance to Managing Trustees in relation to charity/trust law and Methodist law, policy and best practice, the Managing Trustees will need to instruct a Legal Adviser to act on their behalf and deal with the legal aspects of a transaction.
Section C - Choosing a Legal Adviser
Managing Trustees should not be paying excessive legal fees. It is of course important for Managing Trustees to ensure that the Legal Adviser they instruct is suitably experienced in charity and property law matters and has the skills to act proficiently in the matter at hand whether that is a “simple” sale or purchase, a complex lease or conditional sale and redevelopment.
The Circuit or District may be able to recommend Legal Advisers who have the necessary experience and are accustomed to working for the Methodist Church. TMCP is working with the Conference Office to set up a panel of solicitors with the necessary skills and experience required and who will work at agreed fee levels. We will let Managing Trustees know when the panel has been set up and this guidance will be updated accordingly.
Section D - Agreeing a Legal Adviser’s fees
As charity trustees, Managing Trustees have a duty to act only in the best interests of the charity. Please bear this in mind when negotiating professional fees. Fixed fees are becoming increasingly common in the provision of legal services. Please negotiate fixed fees wherever possible and obtain a quote from an alternative firm if the fee quote seems high. If hourly rates are insisted upon then please ensure that your Legal Advisers provide you with a detailed quotation (as they are required to do under their own code of practice) so that you know what to expect and can compare this against other quotes. You may also find it useful to ask for a monthly or quarterly print out of your Legal Adviser’s timesheet so that you can keep an eye on the fees and ask questions if the fees do not reflect the work you feel has been carried out. Whichever way you are billed, please do not be embarrassed to question your bill(s) if it is higher than agreed and as indicated in the client care letter.
Section E - Instructing your Legal Adviser
Please confirm to your Legal Adviser exactly who is instructing them. Please note that it is the Managing Trustees and not TMCP who will instruct the Legal Adviser. Whilst TMCP is the legal title holder it holds title in its capacity as Custodian Trustee on trust for the local Managing Trustees. The Managing Trustees are the charity trustees with day to day responsibility for the property. The Legal Adviser will act for the Managing Trustees, they will be the client and it is to them that the duty of care is owed. You can explain to your Legal Adviser that TMCP Legal acts for and advises the TMCP Board in their capacity as custodian trustee.
Please ensure that your Legal Adviser has the name of the managing trustee body that is instructing them and confirm whether or not that body is registered with the Charity Commission. If it is, please let them know the registered charity name and number.
Please provide your Legal Adviser with a copy of the relevant solicitor's guidance notes and any template clauses for the transaction in hand, any professional advice that you are required to obtain for the particular transaction (QSR, competent advice, valuation report etc) and, if the transaction is a lease, the Non-Residential Lease (Landlord) Heads of Terms. It is important that professionals instructed by Managing Trustees understand the charity law and Methodist law, policy and best practice requirements involved.
TMCP Legal will work with Legal Advisers to ensure that the matter on which they have been asked to advise, proceeds to completion, or otherwise concludes, as smoothly as possible. In this way TMCP strives to help Legal Advisers assist the Managing Trustees in achieving an outcome which is in the best interests of the charity.
Please note that this document is to provide guidance and assistance to Managing Trustees and their professional advisers. This guidance note is general in nature, may not reflect all recent legal developments and may not apply to the specific facts and circumstances of any particular matter.
Also note that nothing within the documents and guidance notes provided by TMCP nor any receipt or use of such information, should be construed or relied on as advertising or soliciting to provide any legal services. Nor does it create any solicitor-client relationship or provide any legal representation, advice or opinion whatsoever on behalf of TMCP or its employees.
Accordingly, neither TMCP nor its employees accept any responsibility for use of this document or action taken as a result of information provided in it.
Please remember that Managing Trustees need to take advice that is specific to the situation at hand. This document is not legal advice and is no substitute for such advice from Managing Trustees' own legal advisers.
If you have any queries in relation to the guidance in this Focus Note please contact TMCP Legal for further assistance.