What Is Independent Legal Advice And Why Do I Need It?

You and your spouse have are highly co-operative. You have either resolved all matters on your own without lawyers, or you have attended Mediation to resolve matters. You want to avoid spending unnecessary money on legal fees. But you are told that you each need "Independent Legal Advice".

What Is "Independent Legal Advice"?

1. "Independent" means that you each have to have your own lawyer. That means that the lawyers cannot be in the same firm or association.

2. The advice also has to be given to you separate and apart from your spouse.

3. The lawyer has to screen you for "undue influence" and "mental incapacity" issues.

4. Technically, you do not need Independent Legal Advice to consent to a Divorce Judgment but it is still a good idea to get advice before consenting.

5. You absolutely must have Independent Legal Advice when you are signing a matrimonial property agreement. In order to discharge his/her duty, the lawyer MUST tell you what you are entitled to under our laws and make sure you understand how your agreement may be different than our laws -- in particular what (if anything) you are giving up by signing the agreement.

6. Both spouses must have had full disclosure of the other prior to signing the agreement.

7. Ideally the lawyers should also have had full disclosure prior to signing the agreement. If the spouse does not want his/her lawyer to review all of the financial documents to back up the disclosure, that lawyer will likely ask his/her individual client to sign a letter confirming that that was his/her instruction, that they are aware of the risk to them of not having his/her lawyer review the disclosure and that they are prepared to sign their Agreement without their lawyer reviewing the disclosure.

How to arrange for Independent Legal Advice.

8. Obtain names from lawyers for independent legal advice from trusted friends or professionals. Look at the lawyer's website. Try to find out what kind of lawyer he or she is and how that fits with your philosophy. Do they belong to any professional associations that might give you a hint as to what kind of practice they have? For example, if they are a member of a trial lawyers association, that will tell you something different than if they are a member of a Mediation or Collaborative association. Pick the kind of lawyer YOU feel comfortable with.

9. Call the law firm to get information about the lawyer and how they charge. Sometimes the lawyer will tell you that; sometimes it will be the legal assistant. It varies from office to office and according to personal preferences of the lawyer. Also advise exactly what you need the lawyer to do (give you independent legal advice about an agreement already negotiated). Ask what information the lawyer needs you to bring and will they review that information in advance of the meeting. Ask any questions you have about procedure and cost. You can call more than one lawyer to get this kind of information and then decide which lawyer you want to see.

10. My procedure is to ask for the Agreement and any disclosure you have to be provided to me in advance, so I can review it and be prepared for the meeting. In addition, I have every client complete a Confidential Client Questionnaire. This gives me basic information that I would otherwise have to spend at least 30 minutes getting from a client in a face to face meeting. I almost always send the Questionnaire to the client in advance of the meeting so that they have time to complete it and can access any of their personal files in order to complete the Questionnaire.

What might happen when you meet your lawyer?

11. Your lawyer is going to ask you a lot of questions -- especially if he/she does not have a client questionnaire completed by you in advance.

12. Your lawyer will confirm your knowledge of the assets, debts and income of yourself and the other person. Your lawyer will also identify any deficiencies in the information.

13. Your lawyer will likely give you basic legal advice and as much specific legal advice as he/she can. If there are information deficiencies, your lawyer will be less likely to give you specific legal advice and will recommend that you get additional information before signing the Agreement.

14. These are some of the typical outcomes of this meeting:

- your lawyer gives you specific legal advice, reviews the disclosure with you and you both sign the Agreement;

- your lawyer asks you to get additional information (or requests additional information from the other lawyer) - that information is crucial to the independent legal advice, so you come back after it is provided for complete independent legal advice and to sign the Agreement;

- your lawyer gives you independent legal advice, but is concerned that you are giving up considerable rights and entitlements so provides you with a letter specifically outlining those concerns, asks you to think about it and come back another day to discuss matters further;

- your lawyer refuses to see you sign the Agreement because either:
- it is clearly unconscionable or unfair; or,
- you have not seen the disclosure and your spouse is not willing to allow you to see the disclosure; or,
- it is clear that someone else has been putting undue pressure on you to sign the Agreement; or,
- you lack the mental capacity to enter into an Agreement.

15. If you and your lawyer sign the Agreement, you should find out when you will get a signed copy of the Agreement. Also, find out if the lawyer will be keeping a signed copy of the Agreement and if so, for how long.

16. Your lawyer will usually want you to pay for the independent legal advice that day before you leave. Methods of payment should have been discussed when you first called in to make an appointment.

© Marilyn Herrmann
Collaborative Lawyer & Mediator
Niblock & Company LLP
Medicine Hat, Alberta
mherrmann@niblock.ca

This information was provided as a courtesy by Niblock & Company LLP for information purposes only and should not be taken as legal advice. You should not rely on, or take or fail to take any action based on this Information. If you need legal advice, contact Niblock & Company LlP or a lawyer of your choice to obtain advice that is particular to your situation. The provision of this information does not create a solicitor I client relationship.
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