Independent Legal Advice

Independent legal advice (“ILA”) relates to a private conversation a client should have with his or her own personally retained lawyer about the nature and effect of entering into certain transactions or contracts.
Examples of when ILA must be offered to a client include:

  • When an unrepresented person is involved in a legal matter such as the negotiation of a family law or domestic contract
  • When a mediator prepares a contract outlining the terms of the domestic contract reached for the partners or spouses to sign
  • When a conflict of interest arises, a lawyer has a duty to avoid the conflict by ceasing to act for a client. However, a client may, with informed consent as a result of receiving ILA, allow the lawyer to continue to act for him or her

Domestic contracts include prenuptial agreements, paternity agreements, cohabitation agreements, marriage contracts, or separation agreements.

ILA is also commonly used when a person seeks to secure a debt against a jointly owned property, in cases where the debt would have no benefit to the property co-owner. Consider the situation where a person  secures a new car loan for the sole use of the other spouse. If there was a default in repayment of the loan, the joint owner without receiving any benefit relating to the car or the loan certainly risks losing his or her interest in the property. Spouses cannot encumber title to the matrimonial home without the prior written consent of the other spouse.

To ensure the lawyer providing the ILA is able to fully understand the context in which the transaction or contract was written, the circumstances leading up to its creation must be disclosed by the client seeking the advice. What the client believes is in the contract should be explored, and in turn the lawyer explains through a line-by-line review of the contact what the written terms actually mean.

The client’s rights and obligations under the document will also be explained. Rights are responsibilities owed to the client by the other party to the transaction or contract. A right to receive spousal support is an example. Obligations are actions the client is required to do or refrain from doing for another party to the agreement. An obligation to vacate the matrimonial home by a certain date is an example of an obligation.

During the receiving of ILA, the client will be asked if he or she has been influenced or coerced in any way to sign the agreement. The client will also be pointedly asked if signing the agreement will be a voluntary act free from any threats or inducements from another person.

When the lawyer has completed the review with the client, with all questions answered fully, and is satisfied that the client understands the nature of the contract and its consequences once it is signed, the lawyer will sign a Certificate of Independent Legal Advice. The Certificate will be attached to all original copies of the contract.

Providing ILA takes about an hour with the client. The client must provide personal photo-identification and a copy of the most recent draft of the agreement or transaction for the lawyer to review and keep in her file. All discussion will be carefully documented by the lawyer.

Professional fees are charged for this service, which means Lorisa requires you to sign a retainer agreement and provide a deposit before providing legal advice.