Independent Legal Advice Versus Independent Legal Representation

Both the lawyers' Rules of Professional Conduct (lawyers’ Rules) and the Paralegal Rules of Conduct (Paralegal Rules) outline circumstances in which a lawyer or paralegal either should or must recommend or require that a client obtain independent legal advice or independent legal representation. Typically, the recommendation or requirement for independent legal advice or independent legal representation arises because the lawyer is in a conflict of interest.

Rule 1.1-1 of the lawyers' Rules defines both independent legal advice and independent legal representation. Although independent legal advice and independent legal representation are not defined in the Paralegal Rules, paralegals should consult sections 13 to 15 of Guideline 9 of the Paralegal Professional Conduct Guidelines for more information.

In general terms, independent legal advice is provided by an outside lawyer or paralegal who is unrelated to the client’s matter, associated parties, or the lawyer or paralegal, and who does not have a conflicting interest. The role of this outside lawyer or paralegal is to provide legal advice that is objective and unbiased regarding a decision the individual is facing. The outside lawyer or paralegal is only retained for the limited purpose of providing independent legal advice so that the individual appreciates the nature and consequences of the decision to be made.  Under the lawyers' Rules and the Paralegal Rules, the decision usually relates to whether the individual should retain a lawyer or paralegal in a matter where there is a conflict of interest, or continue with a retainer where a conflict of interest has arisen.

Independent legal representation is a retainer in which a lawyer or paralegal has no conflict of interest with respect to the matter and acts as the legal representative in the matter. Independent legal representation is required for a lawyer’s client in certain transactions between the lawyer and that client.  In these cases, a lawyer cannot enter into the transaction with the client unless the client has an outside independent lawyer acting as that client’s legal representative in the transaction.

 

Additional Resources:

When Independent Legal Advice or Representation Required