201512.08
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Do I Need A Lawyer?

The answer may vary depending on your individual circumstances.

From a purely technical point of view, a person has a right to represent themselves, whether in contractual negotiations, or in a criminal, probate or divorce matter. However, in most cases, using a lawyer is the wiser and safer choice.  A wise judge recently remarked at the Fort McMurray Court House “would you perform surgery on yourself?”

Conducting negotiations and handling litigation requires objectivity and detachment from the situation. This cannot be overemphasized, so much so that even a qualified lawyer should not represent themselves in a matter where they have an interest. One is reminded of “the old adage that a lawyer who represents himself has a fool for a client”, as a person who represents themselves is deprived of what was described in a case as “the cold, dispassionate, impartial eye of logic that prevails over emotion so as to make possible the rendering of sound advice in the best interests of the client.” [R. v. Beach, 2005 ABQB 253 (CanLII) at para 31].

In addition, there are numerous other points to consider.

Litigation is a quite formal process, regardless of the nature of the matter in dispute. A non-lawyer will always be at a disadvantage and risk if he or she chooses to represent themselves. The Supreme Court of Canada has itself noted “The complex of rules and procedures is such that, realistically speaking, it cannot be navigated without a lawyer’s expert advice.” In the absence of sound legal advice, parties may leave out a vital cause of action, or even forget to join a necessary party to the proceeding. These omissions can be fatal and expose you to liability. The stakes are even higher when the other party is represented by a lawyer. In such a situation, if you lose, you will likely be liable to pay the other party’s legal costs, not to mention the fact that there will be no independent professional looking out for your interests overall.

Even in non-litigious matters, such as simply signing an agreement or settlement, you should strongly consider engaging a lawyer. Some people tend to obtain standard templates online and think this is sufficient to protect their interests. However, the lawyer’s role is not confined to these technical aspects. A lawyer will also  coordinate numerous investigations and due diligence steps to ensure your interests are protected and that your ultimate goal in signing the agreement is realized. Simply relying on the other party’s lawyer to draft an agreement and present it to you for signature would not be sufficient. It is the duty of every lawyer to ensure that their client understands the risks they are confronting and protect the interests of their own client. Independent legal advice is therefore essential. In this regard, it was noted in the case of Hanson v. Hanson, 2009 ABCA 222 (CanLII) at paras 15-16:

“The Lawyer’s duty was to the wife. He owed no duty to the Husband. This is not to say there are no situations where a professional (such as a lawyer or auditor) may be liable to a non-client for the professional’s negligence. For example, a lawyer who delayed making a will has been found liable to those who would have benefited from it: White v. Jones, [1995] 2 A.C. 207 (H.L.). However, “the duties that a lawyer owes to the opposing party are viewed very restrictively …. If it were otherwise, the conflicting duties owed by a lawyer would make the adversarial system impossible”: Martel v. Spitz, 2005 ABCA 63 (CanLII) at para. 12.

As stated at [paragraph 16 of Hanson v. Hanson, 2009 ABCA 222]:

“The suggestion that a lawyer has an obligation to tell the other party about potential deficiencies in the agreement would negate the very object of independent legal advice.”

Therefore, if you are expecting the other party’s lawyer to protect your interests, think again!

The courts have noted the important role to be played by an independent legal representative.

“The propriety of acting as legal advisor to close relatives is questionable. The …advocate… may have difficulty and encounter embarrassment in attempting to discuss, with the objectivity and detachment required of counsel in court, evidence given by his father, brother, sister, cousin, wife or other close relatives, but every legal advisor owes his client disinterested advice. The client should not have to discount that advice by allowing for his advisor’s personal interest in the matter.”  [Hunt v. Smolis-Hunt, 1998 ABQB 389 (CanLII) at para 90].

The above applies with arguably even more force to a situation where a person simply relies on a family member, or the other party to the contract, to protect their interest.

People also often believe that in internal family matters, such as winding up a deceased estate, it is better to resolve issues informally without the intervention of a lawyer. They could not be more wrong. The death of a family member is an extremely emotional situation and often brings out the very worst in people. Even minor matters or for that matter, delays or inconveniences in wrapping up an estate can cause anger, raise issues of fairness, and create unnecessary suspicion within the family. A lawyer serves as a good intermediary in this situation as well.

Many lawyers offer free consultations.  Take advantage of this service and find out if you need a lawyer in your own circumstances.