ILA for UNFAIR AGREEMENTS

January 6th, 2017

provided by Lisa Dewar
When I am asked to give independent legal advice (ILA) regarding a Separation Agreement prepared by someone else, I interview the person seeking ILA so I am sufficiently aware of the facts to consider whether the proposed Agreement is fair or not. If the terms seem reasonably fair, I can sign the ILA certificate in good conscience, provided the person is mentally competent and understands the terms.
However, what if the person seeking ILA wants to agree to terms that are blatantly unfair and/or that appear to have arisen through undue influence or significant duress? Many lawyers take the view that they will sign an ILA certificate under such circumstances, protecting themselves with a letter to the person that confirms both the negative aspects of the Agreement and that the person is signing the Agreement contrary to the lawyer’s advice. The underlying philosophy is that a person is autonomous, with the right to make decisions and learn from his mistakes. Unfortunately, such a letter protects the lawyer and not the person, but some might consider such a concern as paternalistic.
Another approach is that lawyers are obliged to protect their client’s interests in the context of the solicitor/client relationship, in which advice is given on certain facts and the person’s instructions are in accordance with the lawyer’s advice. If the lawyer’s advice and the person’s instructions are irreconcilable, the person must seek and retain other counsel who is willing to accept his instructions.
In my view, a lawyer provides poor service by signing an ILA certificate in cases where the proposed Agreement is so unfair that the lawyer feels uncomfortable in the role of witness (especially at the end of a relationship). The person seeking ILA is paying for the lawyer’s judgment, which good judgment is virtually nullified if the person ignores it. When a person wants to agree to detrimental terms, a lawyer need not help him. Lawyers weigh facts against the law, assisting a person in making sound decisions, often in the context of raw emotion including overwhelming guilt and/or grief. A lawyer is not a rubber stamp, and need not sign an ILA certificate where his conscience and the instructions are incompatible.
Lisa M. Dewar Family Law and Mediation
MILNE SELKIRK, Lawyers
Bldg #5, 21183 – 88th Avenue
Langley, BC V1M 2G5
Phone: 604-882-5015 Fax: 604-882-5025