In the July 2023 edition of LIANSwers, we wrote on the importance of making contemporaneous notes of your client interactions. The Court in the decision we cited noted the good business practice that this is, especially when given that your clients will rarely keep notes of your interactions.
The importance of notes is not limited to lawyers. In the decision cited in 2023, the professional at issue was an insurance broker. And in a recent decision that we will mention now, the professional was an investment advisor and the proceeding was of the Canadian Investment Regulatory Organization (CIRO). On this issue, the specific profession is not important for the importance of a professional’s notes across all professions is the same – they are a record of what transpired between you (i.e., the professional) and your client.
In CIRO v. White, 2024 CIRO 67, the panel noted that there were contradictions between the evidence of White and that of his clients. One aspect of the contradictions was the clients portraying themselves as inexperienced investors not interested in high risk investments and who did not understand high risk investments. Conversely, Mr. White portrayed his clients as being experienced, knowledgeable and well aware of the nature of the investments in issue. We see a parallel contradiction on our files. In discussing White’s notes, the panel said at paragraph 125:
The notes that Mr. White made (which notes corroborate Mr. White’s narrative), combined with his oral testimony of the work and care that he put into his investment advice for all clients, including MS, in the context of a lengthy professional relationship with MS, tip the balance strongly in favour of Mr. White’s narrative as opposed to the narrative of MS.
As we said last July, notes contemporaneously made with your client interactions are helpful when we respond to a potential claim.
There is one other aspect of this decision worth noting, related to the similarity of the investment advisor regulatory regime to the regime for lawyers. Both regimes have a regulatory proceeding (a complaint) and civil action (negligence / insurance) component. Lawyers are often faced with matters where both streams are triggered concurrently. And if not, a regulatory proceeding can lead to a civil complaint and a civil complaint can lead to a regulatory proceeding. Which is to say lawyers often see clients presenting evidence in one proceeding to support their position in the other.