Thursday, November 23, 2017

Business as Usual

I have become embroiled in a potentially burgeoning controversy involving a former client of mine. I stress that I have been contacted as a friend, not consulted as a lawyer. When I was still working we both fell under the heading of friends and solicitor/client. Though I continue to be a member in good standing of the Law Society of Upper Canada I am prohibited to provide legal advice because I no longer maintain Errors and Omissions Insurance (other than so-called "run-off" insurance for retired lawyers) through the Lawyers' Professional Indemnity Company. Accordingly my participation in this matter is restricted to listening and a discussion of possible practical solutions which have no bearing on recondite legal rights or obligations.  By contrast I cannot deny my interest in the legal parameters.

To satisfy my own curiosity about the particulars and to settle simmering queries in my own mind I was anxious to dig up the documentation which pertained to the unfolding wrangle.  The paperwork was prepared by me almost exactly 20 years ago when I was mid-stream my law practice which began in 1975.  To say that I initially recalled the details of the transaction would be wishful; however given the general purpose of the document and my recollection of the circumstances then surrounding it, my suppositions subsequently proved to approach accurate.  It pleased me no end to be able to call upon the lawyer's office which is the successor to my practice to seek their assistance in the production of the document. My files were transferred lock, stock and barrel to them when I closed my office doors in 2014. Within hours of calling the successor law firm this afternoon I had a scanned copy of the document in my possession.

When I was still practicing law, like most lawyers I quickly narrowed the scope of my practice to a few select areas. In my case they were real estate, corporate and estate planning.  Notably absent was anything adversarial.  Notwithstanding that qualification a common feature of my practice was independent representation of clients, something I considered de rigueur.  Certainly in the context of litigation independent representation is nothing unusual.  But in low-level business transactions involving real estate, partnership agreements, corporations, wills and powers of attorney it was not abnormal to have the same lawyer act for both parties.  The use of one lawyer was mostly driven only by the perceived economic objective to "keep costs down" though I learned time and again that it was often a false or petty economy.  For real estate transactions I insisted upon independent representation for the buyer and the seller, a mandate most clients (and their real estate agents) willingly accepted. But within the field of mundane estate planning such as wills and powers of attorney for married couples it was traditional to have one lawyer only, usually the so-called "family lawyer".

The sticky wicket arose in family law matters related specifically to "domestic contracts" which cover the so-called "pre-nuptial agreement", "marriage contract" or "separation agreement".  In each of those instances, if the parties were young and hadn't much money to throw at lawyers, there was a combined plea from them to have but one lawyer.  It was never easy for a legal advisor to advance a palatable reason for doing otherwise.  Obviously the parties felt they had - for good or for bad - made up their own minds about what they wanted to do and they only required the lawyer to "formalize" the arrangement (what the late Albert T. Gale, Realtor apparently labelled "doing up the writings").  Even in the face of warnings and caveats, many clients chose to use one lawyer only.  The greatest threat in doing so is that each of the parties exposes themselves to the possibility of a subsequent allegation by one of them that he or she didn't understand what they were signing which of course constitutes a significant assault upon the integrity of the agreement.  This is not to suggest that stupidity or even ignorance is a complete defence but it can prove to be unsettling. Certainly the doctrine of laches (unreasonable delay in asserting a claim) has a bearing upon the success of such an allegation; though its efficacy is perhaps balanced by the competing theory that one can only be presumed to delay after one is aware of one's "rights" so the question of timeliness loses some of its strength if the activating feature of knowledge is missing. All of which only compounds the original dilemma about whether the parties should be independently represented.  The practical consideration is that in the throes of a marriage or a separation there is always so much going on and so many monetry concerns that economy and expediency rules the day.

If one were to focus solely upon an iron-clad agreement there is no guaranteed air-tight solution.  What keeps agreements from being attacked is more often than not the bona fides of the parties to it not the skilful legalese.  Barring shameful deceit or misrepresentation by one of the parties, most people will abide by an agreement they entered into in good faith.  It is unfortunate that nobody can imagine the many unfortuitous events which may unfold after making an agreement. The stability of the agreement is frequently preserved by the adage that most agreements contain "double-edged swords", that is provisions which can indiscriminately work to the advantage or disadvantage of either party.  This is not to say that certain misfortunes have not been anticipated (even if not predicted or expected) so there is always the chance of an unfavourable outcome for one party.

Having to re-open an examination of these particulars is certainly not my preferred destiny.  It is an undeniable shadow caste upon any old lawyer's existence, that ghosts from the past may from time to time resurface. Just as the lawyer was inextricably involved with the lives of his clients at one time, it may be that the insinuation continues even after the relationship is curtailed.  It is impossible not to feel the thrust of written memorials upon erstwhile business relationships.

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