Giving Independent Legal Advice (ILA) can expose you to significant liability. To reduce your risk, you should follow a process each time you are asked to provide ILA. Document your file, considering that your advice may be called into question and that you may be revisiting the matter in the future as a defendant and witness.
It is important to recognize that while you may meet with an ILA client for only a short time, they are as much a client as one you might represent over a period of months or years. Steps and processes you normally follow on intake, during representation and on file closing in other matters should also be followed when giving ILA.
The client you provide ILA to is often exposed to significant liability or prejudice and frequently receives no corresponding benefit. You need to have and take the time to understand the transaction, the client, and the circumstances to explain the rights and responsibilities of the client and any potential problems that might arise.
Therefore, you should be prepared to spend time analyzing, listening, communicating, documenting your advice given and instructions received if you agree to provide ILA to a client. As with all matters, before you agree to accept a new matter, first ask yourself:
- is this a client and matter one I want to accept
- am I competent in the practice area
- do I have the time required to spend on the matter
- do I have enough information on the matter
- is the client prepared to pay for the time that I believe is necessary to provide competent advice
If the answer is no to any one of these questions, you should decline representation.
If you do agree to provide independent legal advice it is important that you follow a process, take detailed notes of the steps taken, documentation reviewed, advice given and instructions received. Keep time and billing records.
Before closing the file, confirm with the client that you’re not doing anything more on the matter and document that in the file as well. If the client proceeds or signs against your advice, have the client acknowledge this in writing. When you close your file, keep all notes and any other relevant documentation, including, time and billing records.
In all practice areas it is prudent to develop and maintain current checklists. Doing so will help reduce errors and help streamline your practice.
- ILA checklist: Generic (see page 238 of the above report)
- ILA checklist: Family law matters (see page 240 of the above report)
As always, although these offer a good starting point, you should adapt any checklist to your own particular situation.
In Webb v Tomlinson, 2006 CanLII 18192 (ON S.C.), a lawyer who had a well documented file and who used an ILA checklist when giving advice was able to successfully defend against a negligence claim brought against him by a former client. At page 237 of the CBA Task Force Conflicts of Interest: Final Report, Recommendations, and Toolkit 2008, you will find the following guidelines for giving independent legal advice:
- Give independent legal advice only if you are competent in the area of law in question.
- Check the identification of the person for whom you are giving independent legal advice.
- If the client needs an interpreter, have a neutral party interpret rather than a member of the family.
- Gather enough information about the circumstances surrounding the transaction to be able to explain them to your client and predict problems. In particular gather information on the client’s age and level of experience, the client’s motivation, the relationship of the parties and their relative bargaining power. Find out enough about the client’s financial situation to know the financial impact of the transaction.
- Ensure that your client understands not only the nature and effect of the document, but also the client’s underlying rights and entitlements.
- Rather than ask clients if they understand the document in question, have them explain in their own words their understanding of the transaction.
- Ensure clients are exercising their own free will. Be especially diligent if the guarantor is a relative of the borrower, subservient to the borrower, or an unsophisticated party.
- Be sure the document is complete us in all respects before you or the client sign.