Posted in:
Independent Legal Advice Checklist
When providing independent legal advice, a checklist provides you with a handy tool to ensure that you are covering all the bases when discussing the underlying transaction and your client’s relationship to that transaction. Using this checklist, created by Phil Epstein Q.C., will allow you to be in a better position to successfully defend a negligence claim in relation to the provision of independent legal advice.
In his post, Dan Pinnington rightly recommended using a LawPRO checklist for giving independent legal advice.
The risks to a lawyer giving ILA are so well known, that we might wonder why a lawyer would give it.
What are the risks to a lawyer receiving the certificate of ILA, or his or her client? Would the lawyer be safer not to act for the client at all? If so, we might wonder why the practice continues.
Does the certificate of ILA free the lawyer receiving it from every obligation to advise his or her client? Does it mean that the lawyer receiving the certificate of ILA only has to attend to the mechanics of a transaction?
Does the certificate of ILA guarantee that the client’s decision was free from duress or undue influence? Or, if the ILA was improperly given, might it give the lawyer receiving the certificate of ILA or his or her other client a claim against the lawyer giving the ILA?
Should the lawyer receiving the certificate of ILA make sure that the lawyer giving the ILA is aware of critical documents or other facts, of which the client might not be aware, or about which the client might omit to tell the lawyer giving the ILA?
Might a problem with the answers to these questions hurt another client of the lawyer receiving the certificate of ILA and give rise to a claim by that client?
The better practice would be not to give ILA at all as some lawyers do.
Other lawyers will give the advice NOT to do whatever it is the other party wants your client to do or agree to, and have your client acknowledge that advice and even sign off on it.
Particularly in such areas as Matrimonial Law, ILA is a trap for the unwary.