There are hundreds of practicing lawyers in Alberta; are you struggling to find the right one? Calgary lawyer Charles Fair covers key points for consideration when searching for a lawyer.
Charles Fair has been practicing law for nearly 30 years and founded Fair Legal because he is passionate about helping others, ensuring their rights are protected and that they are treated fairly. Fair Legal deals with Criminal, Family, and Civil Litigation matters.
Partnered with the Canadian Centre for Men and Families, Fair Legal provides monthly webinars on topics dealing with criminal or family matters.
WATCH: How To Pick A Good Lawyer
Calgary Men's Divorce Rights Lawyer Charles Fair
Canada’s divorce and family laws are governed by federal and provincial laws. Family lawyers represent their clients in court and negotiate disputes between spouses and family members. Charles Fair has been practicing Divorce and Family Law for almost 30 years. Fair Legal handles all types of divorce, custody and family legal matters to protect your children, property and you. Contact us at 1 (403) 239-2249 to schedule a confidential meeting with a member of our legal team.
Give me a call and I can put my years of experience in divorce and family law to work for you.
Fair Legal Webinar - How To Pick A Good Lawyer
I wanna first start off by thanking you for the opportunity to be of help to the Canadian Center for Men and Families. It's a great organization providing support to men who are going through the breakup of intimate relationships. And that's a particularly challenging time in your lives.
And people sometimes think men are all independent and strong and don't need help, and it's great to have CCMF providing that help. And it's a real honor to have this opportunity to talk to your members, or your people, that have signed on.
And my topics are not - or, my topic today is how to pick a good lawyer. It's not going to be applicable only to men. It's gonna be applicable to anybody. I hope that anything I say here won't be construed as legal advice. It isn't really legal advice. And I'm really gonna try to talk to you from your perspective or the perspective of a prospective client.
You know, I'm always struck, and, you know, you can go find - there's lots of things on the internet about how to find a good lawyer. You know, here's a directory of lawyers, and they'll say, well, make sure you've got the right kind of lawyer. Make sure that the lawyer's got the right kind of experience. You know, take a look at the reviews. And you'll often see those kinds of things on a lawyer's website as well. Which is all very good.
But it always seems to me as somewhat, perhaps, self-serving. Like, you know, the lawyer's not gonna tell you, like, you know, I've been practicing 31 years, am I gonna tell you to go and, you know, find some young whippersnapper lawyer who's right out of law school? Well, actually, I'm gonna say that here's how you evaluate whether the experience is what's important to you or not. So just as one funny example.
And, you know, sometimes - so we'll get into the presentation here. There's not a lot of structure to my talk tonight. I'm gonna cover a number of topics. What I'm hoping is that you're gonna get something out of what I say. And if you've got questions, if I say something in a way that you didn't understand what I was saying, like, you know, that can happen. And, you know, just raise your hand, ask a question. And if something I'm saying is sparking some other further thoughts that you wanna know more about then, yeah, put up your hand and we're gonna try to deal with it.
The other thing I'm gonna try to do along the way is kind of talk to you about some of the issues that arise in the relationship between lawyers and clients. And that's something that I think is worth thinking about when you're finding a lawyer.
So, without further ado, I'll move to the next slide here.
This is just a reminder that you have the right to retain and instruct counsel in private, without delay, And that's' Section 10(b) of the charter, which arises when you are charged with, or detained on, a criminal matter. It doesn't apply in the the family law context or the civil context. However, there is a - you do have a right to a lawyer, and oftentimes, if you find yourself in over your head, you're representing yourself, and you say to the Court, look, I really think I need a lawyer, the Court will generally bend over backwards to give you that opportunity to get a lawyer.
And that's because the right to a lawyer is part of, kind of, fundamental justice rights that people have, and that the courts want to have. Because our court system is designed around this notion that the judge makes a decision based on two sides putting their best case forward, or each party putting their best case forward, and making a decision. And if somebody who's self-represented doesn't know how to put their best case forward, then we're not gonna have as good a result. So the courts will generally bend over backwards to give you the opportunity to get counsel.
So let's go to how to pick the the right lawyer.
And I think it's - you have to have an idea of, well, what is it that a lawyer does? A lawyer does several things for you. One is: Advises you as to what the law is in general - and you can get a good idea of what the law is yourself, you do a lot of internet stuff - but there are nuances in the law. There are laws that are applicable, say in Alberta, that are not applicable in BC, or Ontario, or the United States. And so, sometimes you'll see stuff on the internet that will make some pronouncement about what the law is on something, and that may not be the case in Alberta. So that can help.
The other thing that a lawyer does is: Gives you some context, or gives you the perspective what your case will look like if you're in front of a judge. What the judge is likely to think about your case. And the lawyer will then represent you in court, or in negotiations, and advocate for your interests, subject to a number of concerns that we'll talk about as we go.
So, first thing is: Know the right goals. If you wanna get the right lawyer, or a good lawyer, you gotta know what your goals are. And you might think that that's kind of obvious, but, especially when you're in a highly emotionally-charged conflict, it may not be clear what your goals should be like. Do you want to cause as much economic damage or harm to the person that has really betrayed your trust, your intimacy, and, you know, you thought you had a relationship and now you feel very hurt, betrayed, angry, and you don't care what it's gonna cost as long as, you know, he or she suffers as a result of what they've done to you. Well, that's a goal. And if that's your the goal, I think it's better to be upfront with the lawyer that you're looking for, to see whether that's something that the lawyer believes is appropriate in your circumstances.
Sometimes, when it comes to your kids, do you want to go for full custody of your children, or do you want to go for shared custody, or are you just wanting to have, you know, every other weekend, you know, the standard deal. Now - I shouldn't say standard deal, but often it's seen as a conventional solution.
But the answer to that question isn't always clear. So, it may be that you want a lawyer that can help you sort out what your goals should be, and that's part of the advice process. You can also get assistance from somebody else as well, not just a lawyer. You can also go get advice from a counselor or talk it through with close friends or family members and say, you know, what is the right thing, you know, for me, for my kids, for my life right now? So knowing what your goals are is important. And obviously, you know, you want somebody, if you're going to be - you have a family law problem, you would like somebody who's practicing in the family law area, whether that has to be exclusively their area. I don't know that that is that important but it will come out through the course of the other questions that you have as to whether or not they're gonna be suitable for your case.
So, the second point here is: Ask the right questions. As I said before, you can find a lawyer. You google, you know, divorce lawyer in Calgary, or family law lawyer in Calgary. Or, you know, whatever your question is, you'll get the names of lawyers without any - you know, restraining order. A lawyer for a restraining order or, you know, whatever. Assault charges, or whatever it is. You'll get a list of lawyers and the ones who are good at marketing will show up high on the list in Google or Bing, or whatever it is you use, whether they're the best lawyer for you, well, they might be good at marketing, but they may not be the best lawyer for you.
So thinking about what the right questions to ask is an interesting one. So here's a question. You know, you could say, well, how many years of experience do you have? Well, does that really matter? Well, if you've got a young lawyer who really digs in and is really committed to your case, is that a bad thing or a good thing? Well, that's a good thing. If you've got a lawyer who's many years of experience that figures, you know, well, your case is just like every other case of this, so I know exactly what you should be getting and this is what we're gonna be fighting for. Well, this is your life. It's not your lawyer's life. And that may be a situation where years of experience maybe getting in the way of being the right lawyer for you. You know, obviously you want a lawyer that has some idea of what they're doing, of course.
And, you know, here's the question to ask is what is your plan or what strategy should we use to get to the goals that I'm wanting to go after? And you have a discussion with your lawyer about what - or with the prospective lawyer - about what they would propose is the plan.
Now, you could say, well, I'm gonna, you know, I'll go get a discovery call with this lawyer and that lawyer and, you know, I'll get some ideas from here and there and now you've got a plan and you can go put that plan in place. But a plan is something - when it comes to legal services - a plan is something that really is peculiar to the lawyer. So if you are - I'm just gonna say, I just noticed here, Reagan, that there's some people in the waiting room.
Anyways, what I was gonna say is the plan is something that is one that's gonna make sense for the lawyer as he is working with you, or as she's working with you in terms of what his view of your goals and your attributes and his view of the case is. And that lawyer's plan is going to work well for that lawyer, and in his or her mind is going to work well with you. And you might have a different plan with a different lawyer that might also work because it's a different lawyer.
So how do you tell the difference? I mean, how do you know whether it's a good plan or a bad plan? Well, it has to be a plan that you are comfortable with. So, going back to the initial question, you know, if the lawyer says, "Oh, well, you know, we can make that person, the other side, pay, and, you know, we'll make them pay for what they've done to you, and this is how we're going to do it". And if it's giving you kind of a weird feeling about this, well, that's probably not a good lawyer for you. So you might want to - so again, as the client, it's your case. And if the plan is something that you're thinking, okay, sounds okay, but then, you know, maybe you're not feeling it. So ask some questions and, you know, maybe - you know, not to say that your plan is gonna be better than the lawyer's plan, but at least there should be a discussion about it.
Another question to ask is: Would you mind if I came and saw how you are in court when you're in court on another case? That might give you an interesting perspective because if the lawyer says, "Oh, no, no, no, I don't think that would be appropriate", well, why is that? Right? Why doesn't the lawyer want you to see them in action in court if that's what they're supposed to be able to do? So I would be leery of any lawyer that said, "Oh, well, no, I don't want you to - I don't think that would be appropriate".
Here's another kind of related question, is will you want me in court every time that the case is there. And if the lawyer says, "Oh, no, no, you don't - I'll look after everything. You don't need to come to court". And that's all they say. I would have some questions about that as a client. As a client, you have the right to be present in all legal proceedings in which your interests are at stake. Full stop. There is no qualification to that. It's an absolute right.
Now, I should maybe qualify that a little bit. The right to be there is subject to behaving yourself. If you are very, very badly behaved, the Court can throw you out of the court. But this is a very close to absolute right.
Now, the question, though, isn't do you have the right to be there, do you need to be there? Well, if the matter is just going to be a simple adjournment to another day and you're having to take a half day off work, or a full day off work, or come back from the field and show up for just a five minute submission to the court - if that, you know, a two minute discussion - well, no, you don't need to be there.
Sometimes, though, for example in provincial court family proceedings, where parenting is at issue, you really do need to plan to be there for every single court hearing because, while you technically don't have to be there, you know, if you've got a lawyer, the court in provincial court family expects you to be there unless you've got some reason, or leave permission of the court, not to be there.
In the Court of King's Bench, you can say, well, I don't need to be there because my lawyer is there, and that is technically correct, but I can tell you that the judge knows who's in the the courtroom. And if the judge sees that you're not there, and the other party is, the natural human conclusion that that judge is going to draw is, well, that party isn't particularly interested in the outcome of this case. Obviously that's not a concern if it's just an adjournment or some routine matter, but if the judge is gonna be making an important decision regarding your case, I would encourage you to be there. Then if a lawyer says, "Oh, no, you don't need to be there, I'll look after it", I'd be questioning that. I'd say, look, no, this is - I understand I have the right to be there and, you know, you'd wanna be there. Okay?
My third point here, this is perhaps a little unusual. I say: Consider the team. And the team is more than just the lawyer and the law firm. The team is also the people in your life. Maybe you're seeing a counselor or psychologist. If you are, you know, involved in a religious community, your priest or Ma'am or minister, or some somebody associated with your faith, is an important part of your team.
Your family members, that you are close to, your close friends, they can be part of your team.
And what does your team do in that respect? Well, they can help you through the process of clarifying your goals when it comes time to make decisions about your case. You know, the lawyer doesn't - you know, the lawyer gives you options. You have to make the decision many times during the course of your case. And that's something that you may want to reach out to your team to to talk about.
Now, the only thing you have to be careful about that is that you don't wanna be talking with your team, necessarily, about the legal advice that you received unless you very, very much trust that person to keep that in confidence. If you're dealing with a counselor or a psychologist, they can be trusted to keep matters in confidence. The same thing with a priest or minister, you would expect that they would keep that in confidence. Family members, close family members, like a parent. Yeah, they're probably gonna keep it in confidence. An associate, a friend at the bar, well, you know, maybe that's a little questionable because maybe you don't know what their connections are to the other side. So that's just something to bear in mind. But I think that, you know, the challenge that you're facing is not one that you should be facing alone and you shouldn't be dealing with just you and your lawyer.
The other aspect of team is, who's on the lawyer's team? What's your comfort level with the other people in the lawyer's office? And can the lawyer - and this is a little unusual, at Fair Legal, we're exploring the integration of counseling services into the delivery of legal services because so often it's hard to make decisions about your case without considering the emotional, psychological, aspects of your decision making.
So considering your team is - now, obviously you want your lawyer to be comfortable dealing with members of your team. Some lawyers may not be - they may not like dealing with the other people in your life because they're concerned, as we talked about, the breach of solicitor-client confidence can create a complication in your case. But there are ways to deal with it. And remember, you know, this is your life. This is not some, you know, law school exercise here that says, well, this is a bright line. You know, you can't talk to anybody other than the client. Well, I've always taken a little bit more of a holistic view to that particular issue and say, no, you know, if I need somebody who's part of my support network to know what I'm going through, you know, is a lawyer gonna give me a hard time about that? And I think that's an important question.
I gotta go back to the issue about one question earlier: Ask the right questions. Your case may be really, really ugly and messy. And, aside from experience or age or gender or anything, if, when you're talking about your case, the lawyer flinches, right? You ask a question and the lawyer grimaces, or is uncomfortable, well that's probably not the lawyer for you.
I had a lawyer - sorry, a client - ask me, in the first interview he said - so I asked him if there was anything else I should know that he thought might be relevant to his case - and he said, "Well, I paid somebody to beat up my ex's new partner".
Wow. That's a rather surprising kind of question. I didn't blink. I didn't react the way I just did now. What I did is just simply said, "Well, just so that you know, this is a good time to have a discussion about solicitor-client privilege, which means that anything you tell me is something that is confidential and I can't disclose that to somebody. But if you tell me that you're going to go harm somebody, and that is something that is - you're not just blowing off steam and I think that there's a real risk - I may have a duty as a lawyer to notify somebody that, for some unknown reason, Person X might have to have a concern for their safety. So I have to be very careful about what I disclose, but I may have to take steps to make sure that some harm doesn't come to some third party". So, you know, the questions that - you know, you can ask some pretty darn difficult questions and the lawyer should be able to answer any question.
And if they can't, you know, if you think they're just making stuff up, well, that's not good either. Right? A lawyer doesn't have to know all the answers because that's humanly just difficult, if not impossible. Some lawyers might tell you that, oh, they know everything. If you can't get an "I don't know" from the lawyer, I'd start questioning whether the lawyer actually knows what they're doing because the one thing about lawyers is they can't know everything.
So, okay, so going back to: Consider the team.
Be the right client. So here's the advice that you get on the internet. When you go see the lawyer, make sure you take your documents with you. Well, duh. You know, yeah, you wanna take your documents with you and, you know, if you can get 'em all organized, great. You know, that's even better, I suppose. And if the lawyer says, you know, if you can organize 'em in this fashion, you know, pay attention and organize 'em in that fashion, that makes things a lot easier for your case.
But I think being the right client is more than just showing up with the right documents. Being the right client means, is this the advice from this lawyer advice that you are willing to take. Is there something that you can learn from this situation? You're facing a very challenging situation in your life. Are you gonna be fighting with your lawyer about what the lawyer's telling you? So being the right client is more than just showing up with the right documents. It's also showing up being ready to work with your lawyer. And provide information. Be truthful with your lawyer. Because the lawyer needs to know what the truth is, because the truth is that the lawyer has to deal with the facts as they are.
Now, whether the - and the lawyer, you know, may be subject to certain obligations with respect to keeping what you say to the lawyer secret, but you gotta have a basis of, you know - you have to be able to have an honest discussion with your lawyer about what the facts are.
So those are, kind of, four categories of things that I think is how to pick the right lawyer. Now: What qualities do you wanna have in a lawyer? This is my self-serving list, actually, Melanie put this list together for me, so I'll just give credit where credit's due. I think these are important categories of things. Trustworthy, analytical, creative, personable, caring. And you'll get that feeling if you want somebody that you're gonna be able to relate to who feels they're gonna be on your side on this. And be able to provide solutions, provide you with ideas, help you through the the process of getting to the solution that's gonna make sense for you.
What type of client are you? Can you be the type of client that a law firm wants to represent and work with? And I think that's kind of an interesting way to put that one. And this is more than just - you know, again, this is a two-way street. You know, you wanna be - the lawyer will want to know that you are accepting their advice, but if the advice that they're giving you doesn't make sense to you, well then, you know, maybe you should be really considering whether this is the lawyer with you. So it's a two-way street here.
And, you know, sometimes if a lawyer is finding that the client is just not accepting their advice or recommendations at all, at some point, the lawyer actually may have a duty to withdraw from representing you, because - it's what we call a loss of confidence.
And sometimes it can be very difficult. You know, I was in a situation where, you know, I was advocating zealously for a client that was very reluctant to follow court orders that were - and ultimately, you know, I had to withdraw as a result of that because it was becoming increasingly difficult for me to be able to stand up in court and and say, despite, you know, many different orders and whatnot, and working with the client, I just couldn't get the client to follow the court orders. And I said, well, you know, there's a limit to what I can do. And so I felt that I had to withdraw. So, no, that's an important issue.
Now kind of a bonus thing. I'm gonna go back to the - I like the "Ask the right questions" issue.
So, here's another question we can talk about is, well, what about, what are your legal fees going to be?
And lawyers - and I just have to tell you that there's an inherent conflict of interest between the lawyer and the client on this issue. And I'm gonna go back to that in a minute. But let's just talk about hourly rates because that's the first question that people often ask. Well, what's your hourly rate? Well, that is kind of a question that the answer is really a reflection of what level of experience, perhaps special training, you know, perhaps demand on the lawyer's time that might be reflected in the lawyer's hourly rate. But the hourly rate doesn't necessarily equate to whether your case is going to be an expensive case or an inexpensive case. You know, when an experienced expensive lawyer, at a high hourly rate, can stand up in court and say in one sentence your case, and that totally changes the direction of the case in terms of what the judge was going to do - and that it was clear that that's what the judge was gonna do - and then one statement kind of reverses the case, that is a level of experience - that's one of the values of paying a higher hourly rate.
Documents may be prepared quicker. They may be more effective. The representation in court may be better. All of those things may result in the case being, you know, the same, maybe even cheaper than somebody who's got a lower hourly rate. So the hourly rate is not the end of the story when it comes to cases that are billed hourly.
You can talk to your lawyer about putting a cap on legal fees or saying, look, this is the only amount of money that I have. You know, what can we do in this, you know, with this budget? And that's a good discussion to have.
There is an inherent conflict of interest, obviously, between a lawyer and a client. The lawyer wants to make lots of money, and the client doesn't wanna pay so much.
And, you know, the problem with time billing is, as a client, you don't know how much time something is supposed to take. And you don't know whether the lawyer - you're not there when the lawyer's working. So the lawyer's working, they put a time entry, they send you a bill, how do you know whether that is, you know, that's a fair description of what was done? And that's where it really comes down to trustworthiness. You gotta be able to trust the lawyer.
And you can have a discussion about that. What is, you know, how do we know what a reasonable fee is? You know, how do we know whether when the lawyer says this took an hour of my time to do, whether it really did take an hour, well, hopefully that's not the case, and the lawyer's putting in the correct number, or at least not inflating the number. Maybe the lawyer worked two hours and said, well, you know, I don't think that this should have taken me two hours, so, you know, and this is my practice. If I work on something and it's taken me longer than I think it should have, then I will just record it as a shorter time.
But here's another one that's a little trickier is, when it comes to the conflict between a lawyer and a client, your goal may be to reach a resolution, and the lawyer's goal may be to increase conflict. Increased conflict means more fees. You know, the case goes on for longer. And all you want to do is resolve it.
This goes back to the original question. You know, know your right goals. Talk about what the plan is.
What people don't realize is that, in the course of litigation, sometimes the opposing party will raise some issue, or they'll go on the attack, or whatever, and the lawyer has a decision. And the lawyer's gonna make a recommendation. And there's a lot of decision that goes into that. Does the lawyer escalate the fight? Does the lawyer give up the fight. Or does the lawyer try to do something else in order to get to a resolution?
If the lawyer just doesn't back down on any fight and loses sight of what your goal is of resolution, then the lawyer is just driving up the cost of the litigation to really no good end. So, you know, having a discussion about how you get to a resolution is an important discussion to have with your lawyer.
Yeah, so that's that question. Does anybody have any questions? Nobody's put up their hands. I'm just assuming we're going -
Melanie Seneviratne: I do have, Charles, I do have a couple of questions that have come through -
Charles Fair: Okay.
Melanie Seneviratne: To me directly. So, this is the first one. So how feasible is it to seek an integrated strategy if you have a false domestic violence allegation and charge to fight, in addition to impending divorce process, and gaining child access while you deal with the legal battles? Is there a preferred approach with two legal battles? Is it better to get a family lawyer who handles both? Or instead finding a criminal lawyer and a family lawyer who can work in an integrated way.
Charles Fair: Okay.
Melanie Seneviratne: Sounds familiar.
Charles Fair: Oh, this is a fantastic question. I should have thought of it on my list here.
Okay, so - and the reason why it's a good question is, I like the way it's worded. The important thing is that the criminal lawyer is sensitive to the impact of their decisions on their client's family law case.
And here's where there's a - just so you know, at Fair Legal, I do both criminal defense work and I do family law, and I do civil law. And part of the reason I got into criminal defense work is because of this problem.
What looks like a really good deal from a criminal law perspective can be very bad from a family perspective.
So, you plead guilty to some offense, and you don't get any jail time, and it's done, and you get a conditional discharge, or whatever it is. And you think, well, this is great. I didn't have to go to trial. I don't have to go to jail. But you're done on the family law side because now you've got a criminal conviction.
And now, with the recent changes to the Divorce Act, the court forms actually require people to actually disclose the existence of criminal law proceedings. And now you're gonna have a big difficulty.
Well then the question is, well, what about peace bonds? Because peace bonds are a little lower level. There's no criminal record. But a peace bond requires an acknowledgement that the complainant had a reasonable basis for fear of you. Well, you can see how that can greatly harm your family law case.
And I've been in the position of, you know, because I represent both men and women, I've been in a situation where, you know, I've stood up in court - cue the one line sentence. Say: Your Honor, I must remind you that there's a peace bond in this case. And, previously, you raised this as a concern and you stated that you believed the child. One sentence created a great deal of havoc. Okay?
So, you gotta have a criminal lawyer that is sensitive to the impact on the family law matters.
And here's where there's, I think, sometimes a conflict of interest because a lot of criminal lawyers will charge a flat fee. And the flat fee from the client's perspective seems like a good idea. You say, okay, well I've got - this has cost me $5,000 or $10,000. Well, at least I know what it's costing. And my liberty is very important to me, so the lawyer said that he's pretty sure that he can get a deal, that I'm not gonna have to go to jail, and it's gonna cost me $10,000.
The lawyer is saying, well, I'm taking this case on for $10,000. I don't wanna run a trial on this one because I'm not gonna be making any money. I'm gonna be losing money on it. So I'm gonna push the client to settle for something so we don't have to go to trial. See where the problem is.
So, what sounds like a good deal, you know, a flat fee, may not be appropriate in the situation.
Now, I recognize that this is a very difficult issue because, you know, you may not have the money to go to a trial. And you may have to really, really struggle with - you know, maybe the risk of trial is really high. That there's gonna be a conviction if you go to trial. Maybe the outcome at trial is going to be worse. You gotta work through that stuff. There's no easy answer to this. Some questions, there is no easy answer for.
Now, the question is, do you want to have somebody who can do both sides? Well, here's something that interferes with the criminal defense lawyer and the family lawyer working, is the criminal defense lawyer gets the disclosure, but they can't use it in the family law side because it's subject to restrictions that it can only be used for the full answer in defense to the criminal charges. It can't be used elsewhere.
Now, if your family lawyer is also your criminal lawyer, well, the family lawyer knows what the charges are, knows what the details are of the allegations, and can use that information to at least counter false allegations that are being made, or exaggerations of the criminal proceedings, or distortions of what the criminal case is about. They can actually use that on the family side.
The other thing - oops, hang on.
The other thing is that you can take information that you gain on the family law side and use that information to advance your criminal defense case. And I've done that effectively in a number of cases.
I actually think that there's also a concern - I have a concern with that restriction on the use of information in the criminal proceedings. I have a problem with the way the law right now is, that you can't use that for anything other than the criminal defense, because the law also is, that has to be considered in the family law, and so in a divorce case, for example. So you have the criminal code, which is a federal statute. And the Divorce Act, which is a federal statute. And the Divorce Act says you have to consider the criminal proceedings, but the criminal law says you can't use that information outside the criminal proceedings. I think that's a problem. I'm waiting for the right case to come along to really challenge it.
Because I think that there can be an injustice if that criminal disclosure is not usable in the family law side, because it can result in an injustice on the family side that not only affects the person who's been charged criminally, but it of also affects the children. And I think that the rights of the child, according to the UN declaration on the rights of the child, need to be taken into account, both by the family law court, but they also need to be taken into account on the criminal court side where, while historically the criminal court has said: "This is not our expertise, we're not gonna make any decision regarding the children", well then you can't withhold the information from being used in the family law side, is what I would say.
But that's my opinion. I don't know that there's been any law made on it. And maybe it's changed since the last time I looked, but that's been a long-standing situation, so - that's a long answer. Sorry for that, Melanie.
Melanie Seneviratne: That's okay.
We have a couple more questions here and we've 10 minutes, so -
Charles Fair: Okay, good.
Melanie Seneviratne: Next question is: "I have hired a lawyer who was good in the first two or three meetings, but then their behavior became normal and they started using delaying tactics and not responding to me. How can I tackle the situation? To whom should I complain about my lawyer, and what is the result of such a complaint?
If I've been working with the same lawyer for a long time, what is the impact of making a complaint, and what factors should I consider before deciding to move on to another lawyer?
And, I mean, I don't think this really matters, but this particular person is on legal aid and is in Ontario. But I don't think that necessarily matters, so -
Charles Fair: Well, that's partly knowing who the team member is. First off, in order to - if you're gonna make a complaint to the law society, which can be done, you have to recognize that that in itself doesn't advance your case. It may deal with a lawyer who really needs to be monitored, because you don't know what's going on right? You know, maybe that lawyer has developed a substance abuse problem and is not paying attention to, not just your file, but also other files. So there, there is a public interest in perhaps having somebody take a look at it, but that doesn't advance your case, particularly.
If you are gonna make a complaint, you wanna make sure that they you documented reasonable attempts and know what the response is. So, you know, you send an email, you don't get a response. You phone, you leave a message, you make a record, you make a note that you've called, you follow up with an email that says, "Hey, I called and left a message and nobody's called me back". You know, you wait a couple of days. You send another email.
You can ask to set up an appointment. You can walk into the office without an appointment and say, "Hey, you know, I just want an update on my case. What's going on?"
And that's part of the - consider what the lawyer's team is doing. You know, the team, the staff members, should be able to tell you something about what the case is. They should be able to say, look, we can set up a meeting with the lawyer and we can discuss this.
Now, that said, making a complaint doesn't advance your case. And then the question is, well, why is it that this thing has stalled. And that's the problem that I think is distressing from a client's perspective is, why is the lawyer not doing anything? And you don't really know. So you might wanna go and check with another lawyer and, you know, describe the case as best you can, and say you don't know what's happened. And it may be that the lawyer doesn't know what to do. And, you know, sometimes, really difficult cases, the lawyer doesn't know what to do, and so they kind of avoid dealing with it. I mean, lawyers are human beings as well, and sometimes they're faced with a difficult situation. They don't know what to do, so they do nothing. Which is not the right thing to do. I'm not saying that's what that is. So it may be that a change of lawyer is something that is necessary to do. May be that the lawyer is just simply not communicating that, you know, maybe a delay strategy works better.
You know, in family law we often say that there's really two kinds of divorces. There is a legal divorce, where the parties are separated - whether they're married or not. When I talk about a legal divorce, I mean, you've separated, you've dealt with all the financial matters, you've dealt with the kids, you have resolved all of the issues that are in dispute. That's what I call the legal divorce. You're done.
But then there's a thing called the emotional divorce. And, you know, somebody may not be really, really ready to settle or get to that legal divorce. And what we say is, if one or both parties has not reached the emotional divorce stage - they don't have to reach the emotional stage in order to get the legal divorce - but if they're not there yet, what can result is that the divorce can be much more difficult. And expensive. And time consuming. Because the lawyers can be sitting there working away at it and the case just gets undermined by the clients all the time, and it just stalls.
The legal aid system may be part of the problem in the sense that, if one party hasn't reached the emotional divorce stage, and this thing is just gonna be a big fight, there may be caps on the amount of legal aid.
In fact, years ago I practiced in Ontario and I still remember the last legal aid file I took, on a family law case in Ontario - you know, I put a ton of time into the case, and then they didn't pay me. You know, the hours got capped. The client had been taking unreasonable positions, probably, and was taking up a lot of time, then they weren't gonna pay anymore.
And if now is it rate for the client to just stop working and not say anything? Well, no, that's not the right answer. But, you know, maybe the lawyer might be thinking, you know, we just need to chill out a bit here. Maybe this thing is gonna be an easier case if we just wait a few more months on that.
Not saying that's not - that may be a good plan given your budget and the circumstances, but it's certainly something that should be discussed with the client and it shouldn't just be, you know, the lawyer unilaterally saying, well, that's what the plan is, and I'm not gonna tell anybody, or I'm gonna say that's what the plan is if anybody asks me. You know, that's not the right way to approach it.
So yeah, it's a difficult situation. You know, you may decide that you wanna change a lawyer, but remember you gotta pay the - and this may be more of a concern - you know, in the legal aid system, you're gonna have - you might get away with changing a lawyer once, maybe twice, but then you're gonna run into troubles with the legal aid system, that they're gonna say wait a second, yeah, maybe there was a problem with one lawyer, but now you got a problem with a second lawyer. Maybe it's the client, not the lawyer. So we're not gonna pay anymore. So you gotta remember that, you know, trying to solve the problem with the lawyer might be a better way to go than just trying to get a new lawyer.
The other thing is that when you change lawyers, if you do it too often, it starts to look to the court like you might be the problem and not the lawyer. So, again, courts understand this is, you know, sometimes there's a falling out between a lawyer and a client. Maybe the lawyer's changed firms or whatever. So the court's not gonna concern itself with one, maybe two, changes of lawyers. But at some point - you know, I've have cases where the other side changed lawyers ten, eleven times. The judge, they don't say anything, but they know. They know what's going on. They know - they're making a reasonable inference that the reason why there's so many changes of lawyers is because the client is not listening to the lawyer's advice. And decides that what they're gonna do is just change lawyers. Or they're changing lawyers as a way to delay the case. You know, because you'll get - again, going back to that idea of the lawyer - courts wanna make sure that people have legal advice so you can delay by changing lawyers, and the courts will get onto that pretty quick, and stop it.
The other thing is, when you change lawyers, you gotta pay the lawyer to get up to speed on your file. So that's - you know, maybe you can get some of that money back from the first lawyer. Maybe not. You know, who knows?
The other thing is that, if you are gonna call a law society, or you can - you can call the law society - and I don't know what the situation is in Ontario, but I think in Alberta, I'm not sure, but there might be a mediation type service, and you say, look, I don't wanna complain, but I'm wondering if perhaps you can assist in maybe helping me communicate better with the lawyer. If you said that to the law society, they'd be all over it and they'd be supportive of it. And if they can't get the lawyer to pay attention, then they will institute discipline proceedings against the lawyer.
And another option, I suppose, would be to - if the lawyer is in a law firm, and I've done this when I'm dealing with a lawyer that's not responding to me - is I'll write to the managing partner and say, you know, I've been dealing with so-and-so in your firm and I'm not getting any response. When I've done that, I've usually gotten a response within a couple of days.
So sometimes even opposing counsel has trouble getting lawyers to respond. And that's how I've dealt with it. Complained to the managing partner. Talk to another lawyer and say, look, would you mind calling up this lawyer and just talking to them and say, look, I gotta just know what to do about this case.
If the lawyer's run out of ideas, the lawyer, you know, can't do it anymore on legal aid or whatever, that's fine, but you just gotta have communication and maybe another lawyer will help. So those are some suggestions on how to deal with that.
Sorry, that's another long answer. There was maybe some help there.
Melanie Seneviratne: Okay. We'll just take - I'll give you a couple of, I think can be quick questions.
Charles Fair: Okay.
Melanie Seneviratne: Or quick answers.
Charles Fair: Okay.
Melanie Seneviratne: Don't take too long on them.
So: Does the lawyer themselves have to give you reason why they are dismissing themselves from the case, or can their secretary tell you they have dismissed themselves from the case?
Charles Fair: Ooh. I think they should tell you. I don't know whether they have to tell you. You know, what you can do is, if you have questions about this kind of thing, there's - that's a question you can actually ask the law society as well, and they'll tell you. They're in Alberta. We have - and in every province - but in Alberta we have the code of professional conduct that covers all of these things. And it's a very thick document and there's lots and lots of things. So I just don't know the question. My gut's telling me, yeah, you should tell your client why you're withdrawing.
In fact, I'm pretty sure that's it. Here's the thing, is a lawyer is not allowed to withdraw in certain circumstances. The lawyer needs the Court's permission to withdraw if a trial date has been set. So the lawyer needs the Court's permission to withdraw, then somebody needs to know why the lawyer's withdrawing.
And of course the lawyer can't disclose - you know, the lawyer can't say, well, because I think my client's an idiot. No, the lawyer can't say that. But what the lawyer might say is there's been a breakdown in the solicitor-client relationship, which is code for the client's not paying, the client's not accepting my advice, the client is giving me instructions that I can't follow, but the judge isn't being told which of those big categories it is.
I think, yeah, the more that I think on my feet here, I think really the lawyer does need to tell you which it is. Is it because you're not paying the bill? Is it because you are not following advice? Or giving instructions that the lawyer feels that they can't follow for ethical reasons. Because that can happen. And the lawyer should be telling you.
I think the lawyer just quitting without explanation, raises a question as to maybe the lawyer has engaged in misconduct that they're hoping nobody notices. Well, here's the thing is that the lawyer, I think, has a duty to tell you that as well, so that you can take steps to fix it. Because otherwise how would you know, right? You're relying on your lawyer to have your interests at stake. And that's the case even if your interest is contrary to the lawyer's interest.
That's the thing about being a lawyer. You know, we get a lot of privileges being a lawyer means that we have an obligation, right? We have to put the client's interest before our own.
Melanie Seneviratne: Okay. We're just gonna take one more question, unfortunately. Does the client have the right to any and all communications?
Charles Fair: My practice is that the client should receive copies of all correspondence, whether it's incoming or outgoing. And that's a policy that I have. I know that that's not the case for all lawyers. I don't know what the justification is for not doing it. If, say, a letter comes in and the other side is complaining about something that the lawyer is doing or not doing. And you don't send it to your client. And the client finds it out later. The client is going, "Oh, well I know why you didn't wanna send it to me because you were feeling guilty, you were embarrassed by it, and you didn't want me to know". Well, that just makes it worse, right? And just because the other side is making some complaint doesn't mean that it's valid. So why not send it to the client better to - you know, it's like ripping off a bandaid. Once the wound is healed, you're better off doing it quick.
So, you know, I know that not all lawyers do that, but I think it's the right thing to do. And you could say that's part of the question, picking a lawyer. You know, do I get a copy of everything?
Now, sometimes, you know, the lawyer's staff are busy. Maybe they miss something. You know, it could be inadvertent. You know, that's one thing. But if there's a general view that, well, you don't get everything because, you know, I'm the lawyer and I know better, and you don't really know what this stuff is about anyways, and I don't want to trouble you, I don't think that's a valid reason.
One other issue does come up though is, what if what the lawyer has got is a psychological assessment, and the psychological assessment report says that they are concerned that if the client gets this report, that they are going to cause harm to themselves or somebody else. Well, that puts a lawyer in a really difficult position now, because now they gotta say, well, is this a, you know - the client needs to know what the results of the report is. And I think the lawyer needs to be very careful about that. And sometimes we see that in child protection proceedings that there's this idea that the clients should know.
And I don't like those kinds of restrictions. So when I get that kind of a restriction, I fight against it. Because, you know, I've got a client right now who's subject to a mental health act community treatment order. I think the client is entitled to know what people are saying about him.
You know. Period.
Calgary lawyer Charles Fair brings over 30 years of experience to Fair Legal in criminal, family and civil litigation. Charles draws on his personal experiences related to each field of law which helps him to understand and relate with each of his clients. He is compassionate, caring, and will always be your champion for justice when life gets messy.