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1.5 Documentation of Advice and Instruction

Standard

A lawyer should document in writing

(a) advice to the client, including explanations and confirmation of the explanations, the lawyer’s advice with respect to restrictions, if any, on the client’s quiet use and enjoyment of the property and qualifications to the opinion on title1; and

(b) instructions received from the client, including instructions limiting the lawyer’s retainer and instructions arising out of the lawyer’s advice described in clause (a).

A lawyer should also document in writing the lawyer’s advice to an unrepresented party pursuant to Standard 1.4 - Conflict of Interest.

When a lawyer explains to the client the effect of a document signed by the client, the lawyer may consider the client’s signature evidence of the client's instructions. The lawyer should meet personally and explain the effect of the document to the client.2


Footnotes

  1. Ravina and A & R Properties Ltd. v. Stern (1987), 1987 Carswell NS 348, 77 N.S.R. (2d) 406 (sub nom. Ravina v. Stern) 191 A.P.R. 406 (C.A.)
  2. Supervision of employees: Legal Ethics and Professional Conduct Handbook (See Commentaries 19.4 (ensuring work done by qualified lawyer), 19.6 (work by legal assistant) and 19.7 (supervision and education of legal assistant))
  3. Yamada v. Mock, 1996 CanLII 8024 (ON SC). Supervision of employees: Legal Ethics and Professional Conduct Handbook (See Commentaries 19.4 (ensuring work done by qualified lawyer), 19.6 (work by legal assistant), 19.7 (supervision and education of legal assistant))

Additional Resources

  • Duty to explain risks, obtain written instructions: Edmond & Associates v. Angelatos (1997), 120 Man.R. (2d) 70 (Q.B.), Credit Foncier v. Grayson, Rushford (1987), 54 Sask.R. 203 (Q.B.)
  • Absent documentation, client’s recollection of scope of retainer preferred over lawyer’s: Bergman v. Williams (1980), 22 B.C.L.R. 317 (S.C.), ABN Amro Bank Canada v. Gowling, Strathy & Henderson (1994), 20 O.R. (3d) 779 (Gen.Div.). Failure to document advice, scope of retainer not conclusive: 669283 Ontario Ltd. v. Reilly [1996] O.J. No. 273 (Gen. Div.), Hants County Business Development Centre Ltd. v. Poole et al. (1997), 165 N.S.R. (2d) 365 (S.C.), (1998), 172 N.S.R. (2d) 393 (N.S.C.A.)
  • Lawyer’s notes as documentation: Mazerolle v. Maynes, [2000] N.B.R.(2d) (Supp.) No. 5 (T.D.)
  • Effective advice may require delivery to client in writing
  • C. Walker, Q.C., “Abstracts and the Land Registration System” in Land Registration Act Education Program, LRA Education Materials

Amended by Council November 24, 2006