Filipino lawyers should learn from the mistake of counsel described in this article.
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When lawyers are sharing duties with their clients, they must draw a “bright line” in delineating the responsibilities, the Ontario Court of Appeal said in a ruling last week on a law firm’s negligence in a real estate matter.
Lang Michener lawyer Charles Saikaley had been representing the purchaser of an Ottawa property who, after buying it, found out there was a restrictive covenant on the land that allowed the city to collect money from the buyer as cost recovery for roadwork done in the area.
If the buyer didn’t pay the money, the deal had it that the city would own a 0.3-metre reserve along the boundaries of the property. The purchaser, according to the appeal court, had bought the property for $850,000 and, to its “considerable surprise,” found itself asked by the city to pay an additional $433,466 before it could have road access to it.
The court found the defendant to have been negligent for not discovering that this agreement existed and awarded $290,000 in damages. In the appeal, Saikaley said he had made an agreement with his client, Marc Brunelle, that Brunelle would take care of matters related to the development of the property and the cost-recovery issues were part of his responsibilities.
The court of appeal didn’t accept that argument.
“Legal matters relating to title and to ingress and egress are not normally matters that are delegated to the client, at least not without a clear delineation of responsibilities by the lawyer, and the client’s acceptance of those responsibilities,” wrote appeal court Justice Robert Blair on behalf of a three-judge panel.
In coming to its conclusion, the court talked about a “bright-line” rule when it comes to lawyers’ duties. It cited a 2005 decision that established that “while the lawyer is not required to act as a ‘quarterback,’ co-ordinating and directing the activities of the purchaser’s team, the prudent solicitor must explain the clauses that require due diligence inquiries by the purchaser and ensure the client understands the consequences of waiving the conditions.”
In essence, the court is saying that if lawyers share duties with their clients, they must clarify not just what they entail but also that they’re not responsible should anything go wrong with the client’s portion of the work, says Allan Rouben, an appellate counsel with experience dealing with matters of professional negligence.
If lawyers are going to argue they’ve delegated some responsibility to the client, “it should be clearly documented and that just seems to be basic good practice,” says Rouben.
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