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  • Independent legal advice (ILA)

    My ex and I have two different lawyers that are familiar with our case. We have already agreed on net property division, equalization, child support and custody, spousal support, etc.. Consequently, my ex and I drafted our own separation agreement, which I think is thorough and well drafted, and asked our respective lawyers to give us independent legal advice on the draft. They refused to provide the ILA, unless either one of them drafted an agreement using our own only as an outline for the terms to go in the agreement prepared by them. Is this acceptable practice, especially that these lawyers already familiar with our situation? Why can't they use our draft and when needed just modify it or improve it? Should we seek independent legal advice from other two lawyers, asking them again to use our own draft? Any recommendation from this forum members is much appreciated. Thank you

  • #2
    This is a really hard question to answer without seeing your separation agreement.

    As lawyers, we have a professional obligation to ensure that anything we're reviewing, and providing advice on, is done with care and in our clients best interest. I refused to do similar work when I was in private practice (but I was not in family law).

    It could be that they don't think the agreement is good. Or it could be that they want your $$$ to spend time drafting a new agreement. I don't know.

    What you should ask is why they are refusing and ask them to specifically tell you what parts of your agreement are problematic. If they say "well, that's not standard language- or 'that's not the way I draft x,y,z"- I'd be looking for another lawyer as that's not a proper answer. If they say "well- the way you drafted your custody leaves a lot open to interpretation, what happens if.....x,y,z" - then they're telling you specifically what is wrong with your agreement- and you should probably listen to them. They probably are not just out to get you to spend more $$$ having them do that work.
    Last edited by iona6656; 08-14-2019, 09:53 AM.

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    • #3
      Thank you iona6656 for the quick reply. Well the reason provided by one lawyer is "In order to ensure that all terms are included in an agreement to make it binding, it is important that it is drafted by either myself or the other lawyer." I'm sure that all important terms are explicitly included in a very detailed manner. I will ask more specific questions and see what will be the responses. Thanks.

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      • #4
        I would ask what the specific cost of each of them drafting the agreement and providing ILA would be. It might be a small amount that isn’t that much more than paying for the ILA alone. If you tell them you are asking both of them for a quote they may be inclined to try to undercut each other. You can also ask a third lawyer to provide a quote for creating an agreement based on what you have drafted and see if it compares.

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        • #5
          Originally posted by Tbaga View Post
          They refused to provide the ILA
          If you use the standard agreement, the lawyers can quickly scan it to make sure that nothing is wrong. If they use your agreement they have to actually go through it and make sure that nothing is wrong, which is more time consuming.

          They obviously cannot force you to not use your draft agreement. If the lawyer is being finicky about that, find a different lawyer.

          That said, do you know where your kids will be on the following dates?:

          1) August 13th, 2021 at 11am
          2) December 25th, 2022 at 11am
          3) July 4th, 2023 at 11am
          4) October 31st, 2021 at 6pm

          If you do not, then your agreement is probably lousy.

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          • #6
            Janus, if you mean do we have a "Parenting Plan" that provides detailed scheduling, the answer is yes. The agreement follows a standard format where all sections are included. I asked my lawyer to provide more specific reason(s) for not willing to provide ILA on our draft, and the response I received was that the effort it takes to advise me on the agreement will be the same or greater than as drafting the agreement her/himself. My lawyer made this assessment before even looked at my agreement.

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            • #7
              My lawyer explained that it will cost the same for either advising me on my own agreement or if she/he draft one using my agreement as outline for the terms to be included in the agreement she/he will draft. Also, my lawyer offered to provide me with names of lawyers that do "limited retainers" to advise self-rep people on their documents to provide me with such advice.

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              • #8
                Lawyers typically have a "template" that they use. Ask to see one of theirs and then compare it to what you have drafted.

                IMO they are trying to screw you for money. Not unusual for lawyers to phone each other (off the record) and determine "how much is in the file" that the two can possibly bill for. This is particularly the case when the lawyers know each other - which is not unusual if they both exclusively work in family law.

                In cases where agreements are in question or debated, judge typically look at what was "intended" by the parties at time agreement was struck.

                You are wise to take your time and be very careful. Just don't let the lawyer stir the pot between the two of you - stay the course.

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                • #9
                  Family lawyer here.

                  When I use my template, it’s easy to give ILA on it because I’m already familiar with the content. If someone comes into my office with their own agreement, I have to review it top to bottom and often there are parts written incorrectly.

                  Invariably it takes longer to provide ILA on an agreement written by a lay person than one I already know.

                  I doubt the lawyer is trying to screw you, as I stated elsewhere there really is an abundance of work in this field. The lawyers who sign ILA without reservation.... that’s who I would fear.

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                  • #10
                    Originally posted by arabian View Post
                    Lawyers typically have a "template" that they use. Ask to see one of theirs and then compare it to what you have drafted.

                    IMO they are trying to screw you for money. Not unusual for lawyers to phone each other (off the record) and determine "how much is in the file" that the two can possibly bill for. This is particularly the case when the lawyers know each other - which is not unusual if they both exclusively work in family law.

                    In cases where agreements are in question or debated, judge typically look at what was "intended" by the parties at time agreement was struck.

                    You are wise to take your time and be very careful. Just don't let the lawyer stir the pot between the two of you - stay the course.
                    Thank you arabian. Both my lawyer and my ex's know each other very well. My ex and I were alarmed by some of their actions that seem a bit suspicious (e.g., we got the feeling that they are coordinating their efforts behind our backs). Currently, I intend to explore the so-called limited scope retainer lawyer option ( also known as unbundled legal services). Apparently this is an option newly made available in Ontario for self reps. I'm not, however, sure if this option is cheaper than accepting that my current lawyer draft an agreement based on my draft.

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                    • #11
                      So there you have it.

                      Find a paralegal who has pirated a "template" from their former employer (lawyer) prior to them setting up business (this is typically what they do).
                      Fill in the blanks. Then shop around for a lawyer to look it over - perhaps the freebies at the courthouse? Pay the fee and "Bob's your uncle" so-to-speak.

                      I really think it is important to get independent legal advice, to look over final product, as your situation involves child & spousal support and equalization of assets. If you have the paperwork done ahead of time it should reduce your bill(s). Wording can be critical, however, the "templates" usually have that wrapped up. Just make sure that the appropriate acts are referred to.

                      I've seen incredibly sloppy work turned out from law firms. I believe that you are your own best advocate and you are ultimately incumbent to inspect the work that your lawyer does on your behalf PRIOR to signing anything.

                      Comment

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