Family Law
#6 - Documentation of Advice and Instruction
STANDARD
A lawyer should document, in writing:
(a) advice and explanation of risk given to a client;
(b) instructions received from a client and changes to the instructions;
(c) instructions arising out of the lawyer’s advice described in clause (a) and;
(d) instructions limiting the lawyer’s authority to act.1
REFERENCE MATERIALS
Notes:
1. Edmond & Associates v. Angelatos (1997), 120 Man. R. (2d) 70, 1997 CarswellMan 327 (WC), [1997] M.J. No. 311 (QL) (Q.B.) - Importance of documenting explanations of risk to client and subsequent instructions from client ; Credit Foncier (Canada) v. Grayson, Rushford, Cooper, Nidesh and Arendt (1987), 54 Sask. R. 203, 1987 CarswellSask 576 (WC), [1987] S.J. No. 119 (QL) (Q.B.). - Importance of documenting changes in advice and instructions; Mardling v. Malvern, [1983] O.J. No. 212 (QL) (Ont. S.C. (H.C.)) - failure to obtain client’s instructions in writing and to write a reporting letter following closing - A retainer that excludes responsibility for usual tasks, should be in writing; Garwood v. Garwood Estate, 2006 M.B.Q.B 251 (Can LII) - important to ensure that your file contains documented evidence that you have followed your client’s instructions appropriately and competently; Garwood v. Garwood Estate, 2007 MBCA 160 (CanLII) - reversed on appeal or other grounds.
Related Legislation:
Client Identification and Verification Regulation 4.5.2(b)(ii) made pursuant to the Legal Profession Act, S.N.S. 2004, C.28
Additional Commentary:
MacDonald Estate v. Martin, 1990 CanLII 32, [1990] 3 S.C.R. 1235. - Importance of documenting conflicts check.
Webb v Tomlinson, 2006 CanLII 18192 (ON S.C.) - Importance of documenting advice / instructions in ILA context.
O’Connell v. Romney, 1992 CanLII 2567, 111 N.S.R. (2d) 268 (S.C. (A.D.)). - Importance of putting retainer (and subsequent changes to the retainer) in writing.
Mazerolle v. Maynes, Mahoney & Tremblay, 2000 CanLII 17213, [2000] N.B.R. (2d) (Supp.) No. 5 (Q.B.) - Lawyer’s detailed file notes re: advice/instructions determinative in negligence action.
Rother v. Rother, 2005 NSCA 63 (CanLII) – Evidence at trial included lawyers’ recollection of client instruction.
In Webb v. Birkett, 2011 ABCA 13, the Alberta Court of Appeal held that the defendant solicitor Birkett was negligent in representing the plaintiff Webb in a collaborative family law settlement. The Alberta Court of Appeal held that CFL practitioners must meet the same standard of care required of other family law practitioners including taking appropriate steps to get the financial information needed to properly advise the client. A lawyer must obtain sufficient reliable information to be able to ascertain what the client would likely receive, or be required to pay, for spousal support, child support and matrimonial property division should the matter be resolved at trial, and so advise the client. A lawyer should tell a client who takes the position that he or she wants to settle without having received full information from the other side that they may therefore be accepting less, or paying more, than what would be required according to law, and provide to that client an assessment of the impact f the risk, including estimates of the value of what might be lost, or paid above what was necessary, to the extent possible, on the basis of the information then available. A prudent solicitor would put this advice in writing.
Practice Tip: Recomending a new will after a divorce
Lawyers should provide clients with written advice about the effect of a divorce on existing wills. Section 19A (a-c) of the Wills Act notes that a divorce invalidates certain provisions of a will dealing with a former spouse. A client should be encouraged to meet with their lawyer to determine if a new will needs to be executed.
DOWNLOADS
Related Ethics:
Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998), as amended.
Chapter 3 – Quality of Service (see Commentary 3.1 – limited retainers)
Chapter 11 – Withdrawal
Chapter 12 – Fees
Resources:
CLIA - (Canadian Lawyers Insurance Association) – provides helpful links and Bulletins related to Family Law issues, including: Issue 34 - January 2003 - Keep records of work being completed by others.
Precedents:
ILA Checklist (Prepared by Philip Epstein QC and publicized by LAWPRO)
Conflicts of Interest Checklist
(located at LIANS Loss Prevention)
PracticePRO Checklist - Essentials of a Conflict Checking System
PracticePRO Retainer Precedents
Including:
- Family Law Agreement Retainer
- Client Billing Information Document
- Client Information Document
From CBA PracticeLink, read "7 Keys to Great Client Service” - This handbook is described as “designed to help Canadian Bar Association members across the country improve the crucial lawyer/client relationship.” It is available to anyone accessing the CBA website.
ARTICLES
Gillis, Deborah E / The Importance of Securing Your Electronic Data (July 2007) in Society Record, Vol 25, No 3
Masella, Laura & Marie Ferguson / Family Law for Legal Professionals - Toronto: Thomson Carswell (2006). KB 135 M396 2006
Borrowing books, online help, reference questions - For all information requests, members may contact Library & Information Services by telephone at 1-866-219-1202 (toll-free) or 902-425-BOOK (2665), by fax at 902-422-1697, or by email at nsbslib@nsbs.org web: Library
Approved by Council on March 25, 2011