Book Review: The Law of Independent Legal Advice

Several times each month, we are pleased to republish a recent book review from the Canadian Law Library Review (CLLR). CLLR is the official journal of the Canadian Association of Law Libraries (CALL/ACBD), and its reviews cover both practice-oriented and academic publications related to the law.

The Law of Independent Legal Advice. By Ted Tjaden. 3rd ed. Toronto: Carswell, 2021. xciii, 778 p. Includes table of cases, bibliographic references, and index. ISBN 9780779898947 (softcover) $250.00.

Reviewed by Hannah Steeves 
Instruction & Reference Librarian
Sir James Dunn Law Library, Schulich School of Law

The name Ted Tjaden is, in my opinion, synonymous with legal research in Canada. His third edition of The Law of Independent Legal Advice clearly illustrates his knowledge and understanding of a legal researcher’s needs. The first edition was published by Carswell in 2000, followed by the second edition in 2013. The current edition, published in 2021, is far more comprehensive and includes significant new content.

Tjaden’s dual role as lawyer and law librarian has given him keen insight into the systematic categorization of information in such a way as to simplify the navigation by his target audience. This includes lawyers, judges, law students and, presumably, the law librarians who inevitably assist these groups with their research. Tjaden’s background in legal research has driven him to compile an impressively comprehensive collection of “all relevant statutory and judicial authority on the topic of independent legal advice” (p. v).

This third edition includes the analysis of over 250 new decisions with excerpts highlighting important legal reasoning and principles. Along with the standard detailed table of contents, table of cases, and index, it offers the reader ample material to pursue further research on subtopics of independent legal advice (ILA) through extensive footnotes.

Tjaden organizes each chapter in approximately the same way, beginning with an introduction to ILA as it relates to the area of law, a summary of jurisprudence reflecting both support for and criticism of the provision of ILA in certain circumstance, practical advice for lawyers, and, a new feature in the third edition, curated lists of research references at the end of each chapter.

The first three chapters give context for readers who are new to the topic of ILA. Chapter 1 provides a short but succinct overview of the definition, intention, and categories of ILA. This is followed in Chapter 2 by an elaboration of updated professional standards from the Federation of Law Societies of Canada and provincial bar associations relating to standard of care, conflict of interest, and duty to unrepresented persons. Chapter 3 addresses areas of law that are closely related to the law of ILA, such as non est factum, undue influence, duress, and unconscionability.

The bulk of the text is found in chapters 4 through 11. ILA required within banking, family, employment, corporate, and insurance law are addressed respectively in chapters 4–8, updated to incorporate the evolution of the law since the last edition. Chapter 9, new to this edition, covers estate planning.

Chapter 10, also new to this edition, covers self-represented litigants (SRLs) and amicus curiae. Here, Tjaden does a deep dive into focused ILA issues, such as the ethical considerations for lawyers and judges and the impact of SRLs on the judicial system specific to civil, criminal, and family law, as well as administrative boards. Chapter 11 is a summary of potential negligence claims involving ILA and, to reaffirm the practical nature of the text, Chapter 12 presents practical advice for lawyers through key considerations, recommendations, and checklists.

While the entire text is valuable for someone focused on ILA as a topic, its organization and academic yet approachable tone makes it accessible to a wider audience. A law professor can easily select a chapter addressing ILA within a specific area of law and assign it as a required class reading (e.g., a Family Law class having to read Chapter 5, “ILA in Family Law”). As a law librarian, I have flagged Chapter 10 on SRLs and amicus curiae for questions on the reference desk, as this chapter provides a background on the rights of SRLs from the perspective of a lawyer/litigator. As a legal research instructor, I have noted the inclusion of specific Boolean strings within the reference guides to use as examples when introducing students to advanced searching techniques on legal research platforms.

I have only a few minor issues. As expected from a legal research guru, the citations and references are flawless and packed with additional information. While this style of footnotes displays Tjaden’s comprehensive research and attention to detail, on certain pages they border on overwhelming. Also, while the curated reference guides that close each chapter contain a wealth of knowledge ranging from key texts, reports, journal articles, and CLE seminar papers, a significant number of the sources included are from proprietary sources. Of course, as a Carswell publication, items published by the other large legal publisher are omitted. This is not the fault of Tjaden, but it is worth noting the issues with the existing duopoly on legal information in Canada and the value of open sources, particularly for the current cohorts of law students and junior faculty.

Tjaden’s text is the most comprehensive text available on the topic of ILA. There are several texts from foreign law jurisdictions, but in the context of Canadian common law there are only a small number of publications on family law and corporate law that have chapters addressing ILA. There are several print government publications offering practical advice for SRLs, but they are dated and have likely been replaced by online guides developed by bar societies across Canada. These online guides are typically FAQs that communicate the definition and intention of ILA without significant depth.

If you have the first or second edition in your collection, I advise you to update with the third. Since its first edition, this text has had the self-proclaimed goal of being a “one-stop shop” on the topic of independent legal advice. Specifically, it aims to educate readers on how to determine when ILA is necessary by elaborating on the nuances of specific areas of law as exemplified in primary law authorities. Each edition has nearly doubled in length, and, at 778 pages, the third edition delivers this “one-stop shop” experience. The Law of Independent Legal Advice provides a broad overview and introduction to the law of ILA while allowing readers to select the details and additional resources that are relevant to their specific research. It is thorough while being concise, highly practical, and easy to navigate.