Sometimes parties decide that they are able to resolve their issues without lawyers, either on their own or with a mediator. Prior to finalizing an agreement, it is always recommended that all parties obtain an Independent Legal Advice. You can get advice from lawyers who will provide the advice although they are not retained for the negotiations. The lawyer will explain and make sure you fully understand the nature of the agreement, all the risks associated with the agreement, and all the consequences flowing from the agreement. A lawyer will make sure you are entering the agreement voluntarily.
‘Independent’ means that each party will have their own lawyer. The lawyers cannot work together in the same firm or association. The lawyer you retain must give you advice separate and apart from the other parties. If you are negotiating a separation agreement, your spouse should not come to the meeting with you and your lawyer.
Meeting with a lawyer for Independent Legal Advice is not a quick ‘in and out’ appointment. Your lawyer should ask many questions about the nature of your relationship with the parties involved, the nature of the agreement and the disclosure that was exchanged. You will be asked to confirm your understanding of the agreement. Your lawyer should also identify any deficiencies in the information. If there are information deficiencies, your lawyer will be less likely to give you specific legal advice and will recommend that you get additional information before signing the agreement.
A lawyer may refuse to sign a certificate of independent legal advice if s/he thinks the agreement is clearly unfair, if there has been insufficient financial disclosure exchanged, if it is clear that you are under significant pressure from someone to enter into the agreement, or you lack the mental capacity to enter into an agreement.
The purpose of ILA is not only for you to understand the agreement, but also to protect against a challenge to the enforceability of the agreement based on a party’s potential claim of undue influence, or lack of understanding or capacity.