Lawyers have an obligation to provide advice that is in the best interests of their client. In providing advice, a lawyer must bring reasonable care, skill and knowledge to the performance of the professional services they undertake. Their conduct must meet the standard of care of a reasonable lawyer viewed in light of the time constraints, the nature of the client’s instructions and the client’s experience and sophistication. The standard is fairly high and lawyers, along with the various law societies across Canada, strive to maintain that. However, a lawyer can only advise their client on their options, they cannot force them to do anything. Our job is to present you with options, advise you about the strengths and weakness of each option, and then to follow through on your instructions.
Your lawyer is not an insurance police if you ignore their advice. This reality is highlighted by the recent Superior Court of Justice case of Marcus v Cochrane[i]. In that case, the lawyer, Ms. Cochrane, was acting for Ms. Marcus during her divorce. Ms. Marcus had already negotiated a separation agreement with her husband and she was seeking independent legal advice with Ms. Cochrane before finalizing the agreement. Ms. Cochrane advised Ms. Marcus that it was not in her best interest to agree to a final separation agreement without reviewing financial disclosure from her husband. Ms. Cochrane advised her client that it would be best to sign a partial agreement. Nevertheless, Ms. Marcus wanted to sign the final separation agreement, despite her lawyer’s advise against that. Some time later, Ms. Marcus decided that the final agreement was not actually fair. She tried to sue her former lawyer for failing to stop her from agreeing to the final separation agreement. The court found that it was Ms. Marcus who chose not to follow the advice of her lawyer, Ms. Cochrane. A lawyer can only advise about the risks and benefits involved with all the options available to their client. They cannot force the client to pursue the course of action they feel is best. Consequently, Ms. Marcus lost the claim against her former lawyer for failing to convince her to only sign a partial separation agreement.
Furthermore, Ms. Marcus had to pay a full indemnity costs award to her former lawyer. This is a rare order from the court only done when there are clear grounds to force one party to cover the other party’s entire legal costs. In this case, the court found that Ms. Marcus knew or ought to have known that her claim against her lawyer could not succeed. The evidence was overwhelmingly against her, yet she persisted in taking her matter to trial. Therefore, she is responsible for all of Ms. Cochrane’s costs associated with this claim. This is a warning to individuals who have second thoughts and want to blame their lawyer for their bad decisions.
The role of a lawyer is to provide their client with the best possible advice and to explain the risks and advantages associated with each and every available course of action. At Dale Streiman Law LLP, we rely upon the considerable expertise that our lawyers have gained over decades of practicing family law. Our job is to know and advise you on the best possible course of action given your specific case. Our role is not to force you into a courtroom or to settle for less than you deserve. We tailor our advice to your unique needs with special consideration of the financial, emotion and time costs that are present in many family law proceedings. If you’re in the midst of a divorce or a custody battle and require expert legal advice, please visit our website at www.dsklaw.com or book an appointment with one of our lawyers.
[i] Marcus v Cochrane, 2012 ONSC 146 available at http://www.canlii.org/en/on/onsc/doc/2012/2012onsc146/2012onsc146.html for the initial lawsuit and 2012 ONSC 2331 available at http://www.canlii.org/en/on/onsc/doc/2012/2012onsc2331/2012onsc2331.html for the full indemnity cost award