Tips on how to work with your legal counsel effectively
I found myself, the other week, wandering the Harvard Law School campus and reflecting back upon my educational experience and 25-year legal practice. Has it turned out as I had expected all those years ago?
Expectations: those of a lawyer from a client and more importantly, the expectations that you as a client should have of your lawyer, are an important subject.
First, it’s important that the two of you communicate in a frank and forthright manner. This is the whole point of solicitor and client privilege. In retaining legal counsel, you should fully disclose the facts surrounding your case – the weaknesses as well as the strengths. Without doing so, your counsel cannot adequately advise you any more than a doctor could a patient who refrains from disclosing important symptoms from which he or she suffers. As well, while your lawyer isn’t meant to be your friend, you should feel that they are listening to you during appointments and that you understand what they’re saying. If your lawyer starts talking about your file and it becomes clear that the facts being referred to aren’t the facts of your case, and I recall this once happening in a court room, that’s a problem.
In return, your counsel should provide you with an honest assessment or opinion of the merits and weaknesses of your case. I have often heard the refrain, “I thought you were my lawyer it sounds to me like you’re working for the other side.” It’s not always easy to tell someone something that they don’t want to hear, but I learned many years ago that it is less painful to pull the bandage off and tell the client bad news early as opposed to late in the process. As your legal counsel, we shouldn’t be lulling you into a false sense of security about your case, keeping you happy and collecting our fees, by failing to disclose bad news and leaving it to a judge to lower the boom down the road.
Your lawyer is a member of the Law Society of Upper Canada and is obliged to follow its Rules of Professional Conduct. While you may feel bitter towards the opposing side or their counsel, we as your counsel are nonetheless required, by those rules, to treat the other side with civility and professionalism. We cannot, as well, allow you to misrepresent facts or, in family law, withhold critical financial disclosure from the other side or the court.
It’s also important that you have a proper understanding of your retainer arrangement from your lawyer. How much is your counsel’s hourly rate and what sort of retainer – money up front – are they looking for? Be aware that you’re going to be charged for emails and telephone calls, as well as appointments and court attendances. You should also be billed regularly so that you know, as you move forward, how much of your retainer is left or how deep in debt you are with counsel. If more funds are required, it’s better to know sooner, so that you can start saving up before the next step in the proceeding, than to find out a week before the next major court date that you’ve insufficient funds to carry on.
The last two Reasonable Doubt columns have focused on juries in civil trials. They were written by lawyers who have knowledge of, and opinions on, the topic. I don’t have an opinion on the topic because this is an area of the law I am unfamiliar with. Accordingly, it would be foolish to start expressing an opinion on the matter, just like it would be foolish for a lawyer whose area of expertise is limited to criminal law to start expressing an opinion on the merits of a spousal support claim. Find lawyers who are knowledgeable in the area of law with which you need assistance in. Obviously, an older lawyer with many years’ experience in any given field of practice is likely going to have greater knowledge than a younger lawyer. But, you’re going to have to pay for that experience. A benefit of the younger lawyer too is that he or she may well have more time to devote to your case than an older busier practitioner.
The better the communication between your lawyer and you, the easier the process will be. While that’s not a guarantee that you’re going to be successful in your case, it makes the journey easier and more cost-efficient.
James Stengel is a Family Law Lawyer with Houghton, Sloniowski & Stengel. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Houghton, Sloniowski & Stengel.