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Giving Independent Legal Advice: Are All Lawyers Created Equally?

When it comes to assessing the sufficiency of a lawyer’s independent legal advice (ILA), does it matter who the lawyer is? And can a non-lawyer ever give adequate ILA?

As lawyers know, certain fact scenarios can arise where it becomes prudent -- and often virtually mandatory -- for a client or other person to obtain ILA before entering into an agreement or taking a legal course of action. The purpose of ILA, among other things, is to dispel the possibility that he or she was motivated by the improper influence of another person.

Practically, this scenario arises most often in connection with domestic agreements under family law, or in mortgage-related transactions involving the encumbrance or sale of a matrimonial home which requires both spouses to consent. Adequate and separate ILA ensures that the underlying validity of the transaction is not impugned.

Yet the scope and nature of ILA will differ from transaction to transaction, and not all ILA is considered legally sufficient, particularly when undue influence is alleged.

One of the key cases on this point is Fowler Estate v. Barnes,[1] which set out six factors that may affect the character of the legal advice given, and its effect on rebutting the presumption of undue influence. Subsequent cases like the Ontario court decision in Piscitelli v. Dinelle,[2] which endorse Fowler Estate, go on to clarify that the listed factors are "only guidelines", and are "not necessarily exhaustive."

But even leaving that caveat aside, in connection with the adequacy of the advice given there can be a corollary issue as to the qualifications of the person giving it.

There appear to be only a few potentially-relevant decisions, and those merely tip-toe around this narrow issue. See for example:

  • Canadian Imperial Bank of Commerce v. 3L Trucking Ltd.[3] where a Bank manager was found ineligible and unqualified to provide ILA of the character necessary to meet the threshold test.

  • Cooper v. Cooper[4] where a Nova Scotia solicitor had given qualified or "limited" ILA, by expressly stating that he was not qualified to provide an opinion or advise on Ontario law and was not purporting to do so.

  • Brosseau v. Brosseau,[5] which addressed whether the "independent advice" given to the appellant wife in the context of a separation agreement, from a lawyer who was an acquaintance of her niece (who was also a lawyer), was adequate to overcome a conflict of interest between the parties.

Assessing the qualifications and caliber of an ILA-giving lawyer is an interesting and rather thinly-sliced point of contention, but apparently not a common one.

Hopefully it stays that way.


[1] 1996 CarswellNfld 169, [1996] N.J. No. 206 (T.D.).

[2] 1999 CarswellOnt 3764.

[3] 1993 CarswellAlta 220 (Alta. Q.B.).

[4] 2007 NSSC 239.

[5] 1989 ABCA 241.

Hopefully it will stay that way.

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