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Lawyers and Litigants
I contacted a lawyer for a custody matter and after talking to him, he asked me to provide the file and then he will let me know the cost, which was unaffordable for me. I called the firm and told them I will rather choose to represent myself. Now they send me the letter of intention to sign and also delievered me the notice of hearing from the other party's lawyer. Is this act is according to law and also am I obliged to sign a letter of intention whereas I have not signed a retaining letter? (by A of Surrey, BC) The lawyer might have sent you something called a "Notice of Intention to Act in Person." By signing this, you are telling the court that you are representing yourself in the matter, and that you are NOT represented by a lawyer. If you do not want to hire the lawyer, you should sign this document. In general, most lawyers require that you sign a "retainer letter" - sort of a contract - before they will act for you. Most lawyers also require that you pay a "retainer" - a cash deposit for the work to be done on your file - before they will act for you. There must be an express agreement between you and the lawyer in order for the lawyer to act on your behalf. I think this is what happened: you spoke to the lawyer who made some calls on your file and perhaps spoke to the lawyer for the other side. Apparently the other lawyer sent him some documents relating to an application that's being made. Now that you've told the lawyer you don't want him to represent you, he wants to make absolutely certain that the lawyer for the other side understands that he is not acting for you. So, if you don't want the lawyer to represent him, make sure you've told him that. If what he's sent you is a "Notice of Intention to Act in Person," sign it and send it to him. Take note of the "Notice of Hearing" that the lawyer sent you, the application will be heard on court on that date, and if you're not there, an order can be made in your absence! Click here to go to the top of the page. Can a lawyer appeal a case without permission from his client? (by A of Cyberspace, BC) If you're talking about a case in which the lawyer represented a client who was a party to the case (as opposed to a case between a lawyer and a client), then no. The lawyer would require the client's instructions to file the appeal, not just because that is a significant step in a case, but also because it costs a fair bit. Click here to go to the top of the page. What is the definition of legal counsel? Who can call themselves legal counsel to represent someone? What are the penalties for misrepresentation? (by K of North Vancouver, BC) I don't think there's any particular legislated definition of "legal counsel." However, that phrase usually refers to lawyers or the giving of legal advice. "Lawyer" is defined in the Legal Profession Act as people licenced to practise law. The "practise of law" is defined in the same act as giving legal advice, appearing in court on someone's behalf, preparing legal documents, and so on and so forth. Those definitions are set out in s. 1 of the act. Section 15(1) of the act says that only lawyers may practice law. Section 15(4) says that a person must not falsely represent him- or herself to be a lawyer. Section 85 says that someone commits an "offence" if they breach s. 15. Unspecified offences like this are dealt with under the Offence Act, which says that the punishment for someone committing an offence under an act is a fine of up to $2,000, jail for up to 2 years, or both a fine and jail. When the Law Society decides that someone is falsely representing themselves to be a lawyer or engaged in the unauthorized practise of law, it usually seeks that person's promise not to do so again or it asks the court for an order stopping that person from purporting to practice law. If the person breaches that order, the Law Society will usually apply for an order that the person be found in contempt of court. Like the general provisions of the Offence Act, civil contempt of court is punishable by a jail term, a fine, some other punitive measure like community service, or some combination of these penalties. Now, I don't know off hand where this rule is to be found, but I recall that a party to an action can have someone who isn't a lawyer speak for him or her, but that requires the permission of the court. Click here to go to the top of the page. My husband's ex wife recently filed an application against him with regards to their children's extracurricular activities, the one last area they could not come to an agreement on. She has a lawyer, he doesn't. Her lawyer did not have my husband served with the Notice of Motion. It was couriered to his work place along with an Affidavit. Although he was not personally served, he responded with his reply Affidavit. We just opened our mail today and there is a Notice of Hearing in it dated [date]. Today is [date plus 14 days] and the court date is set for [date plus 20 days]. There is no reply Affidavit or Outline with it, although the lawyer stated my husband will receive his ex's reply Affidavit "shortly". The lawyer also stated that the matter is not within jurisdiction of the master as it deals with the granting of final relief. My questions are with regards to the rules of Court. As this is a granting of final relief (Rule 18A) are the rules different? Should he have been personally served with both the initial Notice of Motion and also the Notice of Hearing? Also should he have already received the ex's reply Affidavit and Outline as we are now only 6 days from the Court date? We have always relied on the Legal Services Society of BC's family law website for all of our information and in this case, the lawyer is not following the procedures as this site states. Please let us know if the lawyer is following proper procedures and if not, should we or could we do anything about it? (by J of Nanaimo, BC) You're right, the lawyer isn't doing things right. Have a look at Rules 44 and 51A of the Rules of Court (there's a link in my website) for a complete review of the relevant rules. Also, the chapter "The Legal System > Interim Applications" applies to your situation, even though it's an application for a final order. If I remember correctly, these are the deadlines for 18A applications:
If the lawyer hasn't complied with these rules, you are entitled to ask the court for an adjournment of the hearing of the application. Between counsel, the rules are sometimes played rather loosely, but this is not appropriate when a lawyer is dealing with someone not represented by counsel. What can you do about this? Not a great deal. The court isn't likely to dismiss the appliction because of defects in how the lawyer complied with the Rules of Court, but the court will gladly give you an adjournment to give you enough time to properly prepare and properly reply to the application. In certain circumstances, where a party plays too fast and loose with the Rules of Court, the court can award increased costs to a party who is seriously prejudiced or inconvenienced by that conduct. In extreme situations, especially if you feel that the lawyer is taking advantage of the fact that your husband isn't a lawyer, you can also complain about the lawyer's conduct to the Law Society. The Law Society isn't there for me, it's there for you. Other little details: Yes, 18A applications are treated differently from other chambers applications. The big difference is that the respondent has 11 days to deliver a response rather than 8. The order which results is a final order, not an interim order. 18A applications are not within the jurisdiction of a Master, because the are applications for a final judgment. Only Judges can make final orders. Now, if you can get your materials together in time for the hearing, then go ahead and have it dealt with. You'll have to deal with it eventually. If you can't get your materials together in time, ask for an adjournment. Click here to go to the top of the page. My wife has moved out with my now ex-attorney. We have one kid together and one from her previous relationship. I take it I have custody since she left? I do not have the means to keep her kid and she or her parents will not take him. I feel for the kid but there's just no way I can handle him. He's very special needs and my health and finances are not great right now, (my wife really took me to the cleaners). Things will get better fast but again there's no way I can take him for the next six months. What would you suggest? Can I go after my ex-lawyer for acting in bad faith? Can't believe I actually trusted this creep, and my wife for that matter. It's not just adultry. I've been lied to and betrayed by each of them for three and a half months. (by J of Roberts Creek, BC) Firstly, am I understanding that your lawyer in a family law proceeding formed a romantic relationship with your ex?!? That is... odd... to say the least, and depending on the circumstances might very well be a breach of the lawyer's duty towards you as a client. You probably have a serious complaint to make about the lawyer to the Law Society and perhaps also a cause of action against the lawyer. While I strongly suggest that you firstly make a complaint to the Law Society (contact information is in the "Resources & Links" section of my website), you may want to speak to a lawyer about whether you have a law suit that you could file against your lawyer for damages. I cannot advise you about whether you have an action against the lawyer as this is too complicated to deal with by email, but I would encourage you to look into it. Now, about the family law aspect of your question. You have custody of your step-child depending on whether there's an order or agreement in place giving you custody. As a step-parent you have a certain set of presumed rights, especially given that your ex moved out and left him with you. This is another tricky issue however, because you will want to preserve your best legal position with respect to your biological child. For that reason, I would caution you against taking unilateral steps with regard to your step-son. This is something else that is sufficiently complicated that I won't be able to give you much of an answer by email. Call a lawyer named [lawyer]. She's in North Vancouver (not the Sunshine Coast I know, but she's the closet lawyer to you that I can unequivocally recommend) and will be able to help you with both issues. For the time being, I would suggest that you notify the mother that you do not have the wherewithall to care for your step-son and ask her to take him. Hint that you will be looking at "other options" if she will not take him. Give her a deadline to give you a reply. Start looking at your alternatives: surrendering the child to foster care through the Ministry for Children and Families, placing the child with his biological father, dropping him off at his grandparents' home, and so forth. Again, I really must encourage you to contact a lawyer about this. I am not so concerned about your legal position vis-a-vis your step-son as I am with your position with respect to your biological child. I worry that the options available to you with respect to the step-son could prejudice your ability to secure custody and/or access to your biological child. Please also contact the Law Society about your ex-lawyer's conduct. The Law Society is there for the protection of the public, not the protection of lawyers, and you do not have to hire a lawyer to make a complaint. Click here to go to the top of the page. My husband has retained a lawyer for our separation. I phoned this particular lawyer 6 months before my husband even knew or retained the lawyer. I left a message with the lawyers answering service. The lawyer phoned me the following day via phone message. He suggested I phone his secretary and set up an appointment. Is this a situation of a conflict of interest? (by J of Innisfil, ON) No, probably not. To be in a conflict of interest, the lawyer must generally be in possession of personal information. Simply calling and arranging an appointment won’t do it. If you attended the appointment, however, the lawyer will likely be in a situation of conflict. Click here to go to the top of the page. Site Navigation Go back to the Q&A Index. Section Menu
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