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A person seeking independent legal advice is as much your client as any other. There’s not a different standard of service because your meeting is brief and you may not see the client again.
Giving independent legal advice is never routine, not even if the person seeking advice has already made a decision and just wants it rubber stamped. Your consultation may be the client’s only opportunity to consider objectively a transaction that exposes the client to significant liability or prejudice while primarily benefiting some other party. It’s essential that you diligently interview, gather information, analyze the issues, and formulate your advice.
- Give independent legal advice only if you are competent in the area of law in question.
- Identify the client in accordance with the Law Society’s Client Identification and Verification rules.
- If the client needs an interpreter, have a neutral party interpret rather than a member of the family.
- Gather enough information about the circumstances surrounding the transaction to be able to explain them to your client and predict problems. In particular, gather information on the client’s age and level of experience, the client’s motivation, the relationship of the parties, and their relative bargaining power. Find out enough about the client’s financial situation to know the financial impact of the transaction.
- Ensure that your client understands not only the nature and effect of the document, but also the client’s underlying rights and entitlements.
- Rather than ask clients if they understand the document in question, have them explain in their own words their understanding of the transaction.
- Ensure clients are exercising their own free will. Be especially diligent if a guarantor is a relative of the borrower, subservient to the borrower, or an unsophisticated party.
- Be sure the form is complete in all respects before you or the client sign.
- If you advise against signing but the client chooses to sign, have a witness present while you explain your advice. Have the client sign an acknowledgement that they are signing against your advice. (Sometimes it’s better to write a letter outlining the advice given rather than sign the certificate.)
- Open a file. Keep copies of everything the client signs. Keep your notes on the facts you gathered and the advice you gave. Note the time you spent on the file.
- It is advisable to accept payment from the client, not from someone with an interest contrary to the client’s. If a third party is paying the legal fees, ensure again that the client is free of any undue influence.
See the accompanying Independent Legal Advice Checklist for giving independent legal advice.
Sending a person for independent advice
- Some times when you should or must send a person for independent legal advice:
- where required by statute
- where the person is an unrepresented opposite party
- if you draw up a separation or settlement agreement for both parties to a matrimonial dispute
- if you represent estate beneficiaries who disagree
- if you represent a lending institution that has a fiduciary relationship with a borrower
- if you are doing business with a client
- if you’ve made an error that will harm your client
- where you may be acting in a potential conflict of interest and have a concern about the client’s ability to give an informed consent
- Especially if one party is receiving all the financial benefit of the transaction and the other is unsophisticated, it may not be sufficient to recommend that the unsophisticated party obtain independent legal advice. You may need to ensure that they do so.
- Don’t refer a party to your associate or partner for independent legal advice. Rather, give them a list of names of lawyers practising in the relevant area.