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 or other individuals obtain independent legal advice or independent legal representation. The situations below summarize those circumstances.
Conflicts of Interest
In general, lawyers and paralegals may represent a client in matters where a conflict of interest exists as long as the lawyer or paralegal reasonably believes that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to other clients, and all affected clients consent [rule 3.4-2 of the lawyers’ Rules and subrule 3.04(3) of the Paralegal Rules].
Although client consent may permit you to act for a client where there is a conflict of interest, in some situations, it may be advisable that the client have the benefit of independent legal advice prior to giving consent. The purpose of requiring independent legal advice is to ensure that the client has an appreciation of the nature and consequence of proceeding with a matter where the lawyer or paralegal is in a conflict of interest.
Although a lawyer or paralegal may request that a client consent in advance to conflicts that might arise in the future, the effectiveness of such consent is generally determined by the extent to which the client appreciates the material risks that the consent entails. In some circumstances, it may be advisable to recommend that the client obtain independent legal advice before deciding whether to consent to future conflicts of interest [commentary to rule 3.4-2 of lawyers' Rules and section 11 of Guideline 9 to the Paralegal Professional Conduct Guidelines].
Although the lawyers' Rules do not require that a lawyer advise clients to obtain independent legal advice before the lawyer accepts a joint retainer, in some cases, the lawyer should recommend such advice. The purpose of recommending independent legal advice in these circumstances is to ensure that the client’s consent to the joint retainer is informed, genuine, and uncoerced. This is especially important in cases where one of the clients is less sophisticated or more vulnerable than the other [commentary to rule 3.4-5 of the lawyers' Rules]. Similarly, paralegals may want to recommend to a client who is not sophisticated or who is vulnerable that the client obtain independent legal advice prior to agreeing to the joint retainer [section 19 of Guideline 9 of the Paralegal Professional Conduct Guidelines].
If a lawyer or paralegal has a continuing relationship with a client for whom he/she acts regularly, the lawyer or paralegal is required to advise the other client of the continuing relationship and recommend that the client obtain independent legal advice about the joint retainer [rule 3.4-6 of the lawyers' Rules; subrule 3.04(8) of the Paralegal Rules].
Transactions with Clients
Lawyers and paralegals are not permitted to enter into transactions with clients unless the transaction is fair and reasonable to the client [rule 3.4-28 of the lawyers’ Rules; subrule 3.06(1) of the Paralegal Rules]. This requirement applies to any transaction to which a lawyer or paralegal and a client of the lawyer or paralegal are parties, whether or not other persons are also parties, including lending or borrowing money, buying or selling property or services having other than nominal value, giving or acquiring ownership, security or other pecuniary interest in a company or other entity, recommending an investment, or entering into a common business venture [section 3.4-27 of the lawyers’ Rules; section 3.06 of the Paralegal Rules].
Depending on the type of transaction with a client, a lawyer or paralegal either should or must require that the client receive independent legal advice or independent legal representation regarding the transaction. The lawyer or paralegal should review subrule 3.4-29(b) of the lawyers’ Rules or clause 3.06(4)(b) of the Paralegal Rules, as applicable, to determine the procedure regarding independent legal advice or independent legal representation that applies to each specific type of transaction with a client.
If the client declines the recommendation to obtain independent legal advice or independent legal representation, the lawyer should obtain the client's signature on a document indicating that the client has declined the advice or representation [commentary to rule 3.4-29 of the lawyers’ Rules]. If the client is vulnerable and declines independent legal advice or independent legal representation, the lawyer should not enter into the transaction [commentary to rule 3.4-29 of the lawyers’ Rules].
Discovery of Error or Omission
When a lawyer or paralegal discovers that he or she has made an error or omission that is or may be damaging to a client and cannot be rectified readily, the lawyer or paralegal is required to recommend that the client obtain legal advice from an independent lawyer concerning any rights the client may have arising from the error or omission [subrule 7.8-1(b) of the lawyers' Rules; clause 3.02(21)(b) of the Paralegal Rules].
Acting as a Mediator
The commentary to rule 5.7-1 of the lawyers' Rules provides that a lawyer who, while acting as a mediator, prepares a draft contract for consideration by the parties in mediation should expressly advise and encourage the parties to seek separate independent legal representation concerning the draft contract.
Sections 5 and 6 of Guideline 2 of the Paralegal Professional Conduct Guidelines recommend that a paralegal, when acting as a mediator, should guard against potential conflicts of interest, and should suggest and encourage the parties to seek the advice of a qualified paralegal or a lawyer before and during the mediation process if they have not already done so.
Independent Legal Advice Versus Independent Legal Representation