What is the difference?
Independent legal representation (“ILR”) is defined in the Rules of Professional Conduct as where the lawyer “has no conflicting interest with respect to the client’s transaction, and the retained lawyer will act as the client’s lawyer in relation to the matter.”[1] This is the typical lawyer-client relationship and the type of retainer lawyers are likely most familiar with.
In contrast, independent legal advice (“ILA”) is defined in the Rules of Professional Conduct as a retainer where: (a) the lawyer has no conflict of interest; (b) the client’s transaction involves another lawyer, a corporation their lawyer has an interest in, or a client of their lawyer; (c) the client has been advised of their right to independent legal representation; (d) the client has elected not to receive independent legal representation; (e) the retained lawyer explains the legal aspects of the transaction to the client ensuring the client’s understanding; and (f) the retained lawyer informs the client of advisers who are in a position to provide an opinion on the proposed transaction.[2] The goal of independent legal advice is for the client to obtain objective and unbiased advice about their situation.
When to recommend ILR vs ILA?
On the one hand, pursuant to the Rules of Professional Conduct, ILR is required where a loan is granted to a client who is not a related person, or where money is borrowed from a client to a corporation, syndicate or partnership that the client’s lawyer or the lawyer’s spouse has a direct or indirect substantial interest.[3] In addition, the Law Society of Ontario advises that a lawyer acting as a mediator, who prepares a draft contract for the parties to consider, should encourage the parties to obtain ILR with respect to the draft contract.[4]
On the other hand, pursuant to the Rules of Professional Conduct, ILA is required where a loan is granted to the client by a related person.[5] While not required prior to entering a joint retainer, the lawyer may decide to recommend obtaining ILA to ensure the client’s decision is informed, genuine, and uncoerced.[6] The Law Society of Ontario advises that ILA may be desirable where a client is giving their consent for the lawyer to act despite there being a conflict of interest.[7] In addition, where a lawyer makes an error or omission to the detriment of the client, the lawyer must advise the client to obtain ILA from an independent lawyer.[8]
Documentation
It is important to document the provision of ILA by providing the client with a written certificate indicating that the client has received ILA, obtaining the client’s signature on the certificate, and sending a copy of the signed certificate to the lawyer with whom the client proposes to transact business. [9] Where a client declines the offer of ILA or ILR it is important to document that choice by having the client sign a document indicating that the client declined the advice or representation.[10]
Conclusion
ILR and ILA are both important to ensure your client’s safety. The main priority is to ensure a client is not forced into a transaction or agreement that they are not comfortable with or do not understand. Lawyers should be particularly careful in situations where the client is vulnerable, including cognitive decline, disabilities such as impaired vision or hearing, financial insecurity, and major changes in life, there is a higher risk of the client being unduly influenced.[11]
[1] Rules of Professional Conduct at rule 1.1-1.
[2] Ibid.
[3] Rules of Professional Conduct at rule 3.4-29 (b)(i) and (iv).
[4] Law Society of Ontario, “When Independent Legal Advice or Representation Required”, online: <https://lso.ca/lawyers/practice-supports-and-resources/topics/the-lawyer-client-relationship/independent-legal-advice-and-independent-legal-rep/when-independent-legal-advice-or-representation-re>.
[5] Rules of Professional Conduct at rule 3.4-29 (b)(ii).
[6] Rules of Professional Conduct at rule 3.4-5 commentary 1.
[7] Law Society of Ontario, “When Independent Legal Advice or Representation Required”, online: <https://lso.ca/lawyers/practice-supports-and-resources/topics/the-lawyer-client-relationship/independent-legal-advice-and-independent-legal-rep/when-independent-legal-advice-or-representation-re>.
[8] Ibid.
[9] Rules of Professional Conduct at rule 3.4-29 commentary 6-7.
[10] Ibid.
[11] Ibid at rule 3.4-29 commentary 8.
Anne-Marie returned to Perley-Robertson, Hill & McDougall in 2017 in the Real Estate Group three years after completing her summer and articling terms with the firm. Anne-Marie completed her JD at the University of Ottawa in the Programme de common law en français in 2013 and obtained a Bachelor of Arts degree, concentration in History, in 2004. Anne-Marie specializes in land development, commercial and residential real estate as well as Wills and Estates. She represents builders and assists them with all aspects of their condominium and subdivision projects. She has represented buyers, sellers, lenders, and investors in various real estate transactions. She also assists clients with the preparation of their Wills, Living Wills and Powers of Attorney, acts as an estate trustee and gave Estate Planning workshops to Federal Government Employees.
