The following article from the August 2012 issue of LAWPRO Magazine introduces LAWPRO's new domestic contract matter toolkit. The toolkit can be downloaded in full or in part at www.practicepro.ca/checklists
Between 2007 and 2011, 830 family law claims were reported to LAWPRO. These claims are costly. Resolving them will cost LAWPRO approximately $21 million. Some of these claims arose due to real (or alleged) problems with domestic contract matters. That is the bad news.
Domestic contracts are complex documents that deal with complicated issues involving emotional clients. The dangers are real and there are many places that errors can occur. The good news is that the risks involved in handling domestic contract matters can be greatly reduced. This toolkit is designed to help Ontario lawyers proactively take steps to reduce their exposure to claims when they are working on domestic contract matters.
Like most other areas of law, lawyer/client communications issues can play a significant role in domestic contract claims. The complexity of the subject matter makes it easy for clients to allege there were communication problems or errors. They will say that provisions were not explained to them, that they didn’t understand them or that they created unexpected or unintended consequences. Sometimes there is a real communications mistake and a legitimate claim due to an incomplete or improperly drafted domestic contract or other mistake by the lawyer.
Beyond the communications issues, getting the final document right requires diligent management of the file, a thorough investigation into the client’s circumstances, a consideration of relevant law, and the careful drafting of the provisions of the agreement. Lawyers may also find themselves pressured into taking shortcuts due to tight time constraints or clients who want to keep legal fees as low as possible.
The checklists and forms in this toolkit contain points and questions lawyers should systematically consider as they conduct the initial interview on a domestic contract matter and when they meet with the client to review and sign the document.
Following the steps listed in the checklists and forms will make sure nothing is missed, and just as importantly, that there is a paper trail documenting the work that was done and the communications that occurred at the two most critical stages of a domestic contract matter: the initial intake meeting and the review and signing of the agreement. That paper trail can be invaluable in the event a client sues you for malpractice.
There are four documents in the toolkit:
- Domestic Contract Matter Intake Form: This form systematically walks you through all the information you need to gather to prepare a domestic contract.
- Domestic Contract Matter Intake Checklist: This checklist lists the steps and issues that need to be considered at the intake stage.
- Post-Meeting Client Assignment Sheet: This sheet gives the client a list of the information that they will need to collect after the initial meeting.
- Domestic Contract Execution Meeting Checklist: This checklist lists the steps and issues that need to be considered when a client comes in to review and sign a domestic contract.