Legal Blog

Good Deeds

As far as we are concerned, one of the duties of a senior lawyer is to advise other lawyers upon their request. It is professional and it is payback for all of the advice that the senior lawyer had received in his or her junior days. However, what happens when the person receiving the advice alleges that the advice was deficient or wrong? This was the allegation in D’Amore Construction (Windsor) Ltd. v. Lawyer’s Professional Indemnity Company [2005] O.J. No. 448 (Div’l Ct).

Facts

A lawyer, whom LPIC had appointed, discussed with the plaintiff’s lawyer the strategy regarding the plaintiff’s motion. Both LPIC and the plaintiff wanted the motion to succeed. The motion was unsuccessful and the plaintiff sued LPIC’s lawyer, and LPIC vicariously, for negligent advice. The plaintiff conceded that LPIC’s lawyer was not his lawyer, but alleged that there was a fiduciary relationship between him and LPIC’s lawyer because LPIC’s lawyer was the consultant to the plaintiff’s lawyer. LPIC and its lawyer moved for a summary judgment dismissal. They were unsuccessful before the motions judge and were given leave to appeal to the Divisional Court.

Go Away

The Court first determined that there was no proximate relationship between LPIC’s lawyer and the plaintiff, particularly given that another lawyer was already representing the plaintiff. Even better, the Court noted that had there been a proximate relationship, policy reasons would have negated any duty of care.

As to the notion that lawyers are liable to someone else’s client, the court stated:

“When a lawyer practices law, his or her duties and obligations to a client are the same, even though the abilities and experience of each lawyer may differ. That equality of obligation means that each lawyer is responsible to advise and protect his or her own client, and not to

off-load that duty to another lawyer. As a general rule, it is only the lawyer retained who is privy to his client’s instructions, desires and motivations. That lawyer is in the best position to assess the strengths and weaknesses of the client’s case, and the evidence that may be brought to bear in the client’s cause. There must be no dilution of the lawyer’s responsibility to his own client by attributing professional liability more widely.”

As to the desirability of professional courtesy, the Court stated:

“It is commonly understood in the legal profession that a lawyer from whom advice is sought offers it as a professional courtesy. It is still the duty of the lawyer receiving that advice to analyze and consider it, based on his or her instructions, research, or other factors, in order to determine a course of action in a particular case.

In practice, imposing professional liability on counsel for an exchange of views or advice where there is a common interest between their clients will have a chilling effect on such discussions among the Bar. It may have the immediate and unintended effect of discouraging any mentoring of junior lawyers by more experienced counsel. It may also limit professional development at the Bar by discouraging frank discussion among counsel with a view to learning the law or improving their skills. This would not be in the interests

of the clients they serve, or in the interests of the administration of justice.”

We could not have said it any better.