This Div is a JS Trigger

#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 261 (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

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.

Rother v. Rother, 2005 NSCA 63 (CanLII) – Evidence at trial included lawyers’ recollection of client instruction.

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, 2001 NBCA 101

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.

Fisk v. Land, 2004 MBQB 192 – the lawyer did NOT document the conflict check. See paragraphs 8, 9 and 24.

Sun v. Shao, 2013 BCSC 532 – the lawyer did document the  conflict check. See paragraphs 6, 7 and 19.

Rhodenizer v. M.W., 2014 NSSM 30

PRACTICE TIPS

Upon separation, many clients do not want to benefit their former partner or spouse. Therefore, a lawyer should review the contents of wills, power of attorney, beneficiary designations and personal directives with clients.

Recommending a new will after a divorce
Lawyers should provide clients with written advice about the effect of a separation and/or divorce and remarriage 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.

Power of attorney
Lawyers should provide clients with written advice about the effect of a separation and/or divorce on Power of Attorney documents. A divorce has no effect on a Power of Attorney document. A client should be encouraged to meet with a lawyer to determine if existing POAs should be revoked. If such POAs are cancelled, financial planners and other professionals should be advised of the change.

Beneficiary designations
Lawyers should provide clients with written advice about the effect of a separation and/or divorce on beneficiary designations in RRSPs, RRIFs and/or insurance policies. A divorce does not result in the revocation of such beneficiary designations. A client should be encouraged to meet with a lawyer to determine if such beneficiaries should be changed.

Personal directives (formerly known as “living wills”)
Lawyers should provide clients with written advice about the effect of a separation and/or divorce on a Personal Directive. These documents allow a person to give advance written instructions on future health care and/or personal care decisions. The Personal Directive Act permits the appointment of a substitute decision maker in the event of incapacity. A Personal Directive is not automatically revoked upon divorce. A lawyer should review Personal Directives with clients.

DOWNLOADS

Related Ethics

Nova Scotia Barristers’ Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012: 

section 3.2: "Quality of Service"

section 3.6: "Fees and Disbursements"

section 3.7: "Withdrawal from Representation"

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

Approved by Council on March 25, 2011