A lawyer should document in writing:
- advice to the client, including explanations and confirmation of the explanations, the lawyer’s advice with respect to restrictions, if any, on the client’s quiet use and enjoyment of the property and qualifications to the opinion on title1; and
- instructions received from the client, including instructions limiting the lawyer’s retainer and instructions arising out of the lawyer’s advice described in clause (a).
It is advisable for a lawyer to document the disclosure of and client consent to conflicts of interest and joint retainers.2
It is advisable for a lawyer to document in writing the lawyer’s communications with an unrepresented party, particularly those communications pursuant to Standard 1.4 – Conflict of Interest.3
When a lawyer explains to the client the effect of a document signed by the client, the lawyer may consider the client’s signature evidence of the client’s instructions. It is advisable for the lawyer to communicate personally with clients in order to explain the effect of the document. A lawyer should be aware of the limits with respect to delegation to a non-lawyer as it relates to providing advice and obtaining instructions from a client.4
2. For example, rule 3.4-15 of the NSBS Code of Professional Conduct provides, “…When a lawyer acts for both the borrower and the lender in a mortgage or loan transaction, the lawyer must disclose to the borrower and the lender, in writing, before the advance or release of the mortgage or loan funds, all material information that is relevant to the transaction…” Where the lender is a “lending client”, a lawyer’s obligations to document consent and to provide advice can be more limited: see rules 3.4-5, 3.4-6, 3.4-7, 3.4-13, 3.4-14 and 3.4-16.
3. A lawyer should be cognizant that, even in absence of a solicitor- client relationship, in some circumstances he or she may owe a duty of care to a non-client. See Tracy v. Atkins (1979), 1979 CanLII 760 (BC CA) and Begusic v. Clark, Wilson & Co. (1992), 1992 CanLII 447 (BC SC)
4. This potentially gives rise to the supervision of employees and issues of delegation: See Code of Professional Conduct (See Chapter 6).
Due to volume and repetition of common issues, a lawyer may develop and use precedents to document common advice and practice. Examples of documents wherein a lawyer’s advice can be documented include: (1) retainer agreements\opening letters;(2) authorizations and directions; (3) closing\disengagement letters; (4) certificates of title.
In documenting advice and instructions, a lawyer should consider the client’s background including but not limited to:
- The client’s capacity;
- The client’s relationship with any other party involved in the transaction;
- The client’s level of sophistication with legal and\or business matters;
- The client’s potential communication barriers; and
- Any apparent cultural or other similar issues which may impact the ability of the client to understand the substance of what the lawyer is intending to communicate.
Where a client is acting against the lawyer’s advice, in addition to documenting their advice, the lawyer should attempt to have the client execute a written acknowledgement of their instructions and prepare a memorandum to file.
- Duty to explain risks, obtain written instructions: Edmond & Associates v. Angelatos (1997), 120 Man.R. (2d) 70 (Q.B.), Credit Foncier v. Grayson, Rushford (1987), 54 Sask.R. 203 (Q.B.)
- Absent documentation, client’s recollection of scope of retainer preferred over lawyer’s: Bergman v. Williams (1980), 22 B.C.L.R. 317 (S.C.), ABN Amro Bank Canada v. Gowling, Strathy & Henderson (1994), 20 O.R. (3d) 779 (Gen.Div.). Failure to document advice, scope of retainer not conclusive: 669283 Ontario Ltd. v. Reilly  O.J. No. 273 (Gen. Div.), Hants County Business Development Centre Ltd. v. Poole et al. (1997), 165 N.S.R. (2d) 365 (S.C.), (1998), 172 N.S.R.(2d) 393 (N.S.C.A.)
- Lawyer’s notes as documentation: Mazerolle v. Maynes,  N.B.R.(2d) (Supp.) No. 5 (T.D.); and also Webb v Tomlinson, 2006 CanLII 18192 (ON S.C.)
- Effective advice may require delivery to client in writing
- C. Walker, KC, “Abstracts and the Land Registration System” in Land Registration Act Education Program, LRA Education Materials
- D. Gillis, KC, “LIANS : giving independent legal advice” in The Society, 2010 July
- D. Gillis, KC, “Tips for Reducing Negligence Claims in Your Property Practice” RELANS Conference, April 12, 2010 (see p. 8 – Documenting Your File).
Amended by Council on March 24, 2023