Understanding Independent Legal Advice (ILA)
When you are asked to sign an important legal document, such as a prenuptial agreement, a separation agreement, a loan guarantee, or a document that transfers property, you may be told to get independent legal advice, often shortened to ILA. The phrase comes up often, but many people aren't sure what it actually involves, who should provide it, or what it does and doesn't do for them. This post walks through the basics.
What "Independent" Means
Independent legal advice comes from a lawyer who acts only for you. That lawyer does not represent the other party, and has no stake in whether you sign. Their job is to make sure you understand what you are signing before you sign it.
Independence is the whole point. If the lawyer also acts for the other side, or is chosen, paid for, or pressured by the other side, the advice may be compromised. For that reason, you should generally not use the same lawyer as your spouse, business partner, lender, or family member who is asking you to sign. A lawyer in the same firm as the other party's lawyer is also usually not considered independent.
It's common for the other party to offer to pay for your ILA, particularly in family law matters. That is generally acceptable, provided the lawyer's duty is still to you alone and the other party does not direct or influence the advice you receive.
What ILA Is Not
Because ILA is often a required step for many issues, it's easy to misunderstand its purpose. Here is what it is not.
ILA is not representation. A lawyer giving ILA is not negotiating on your behalf, drafting the agreement, or acting as your lawyer in the wider matter. Their role is limited to explaining the document and its consequences. If you want someone to negotiate terms or propose changes, you need to hire a lawyer for that purpose, which may be the same lawyer if you both agree to expand the retainer.
ILA is not a rubber stamp. A lawyer should not simply sign a certificate because you asked them to. If they believe you don't understand the document, or that you are being pressured, they may decline to sign until those concerns are resolved.
ILA is not a guarantee that the agreement is fair. The lawyer can tell you whether a document is unusually one-sided or risky, but they cannot make it fair, and you are free to sign something that is a bad deal for you as long as you understand it and choose to do so.
ILA is not a guarantee that the document will hold up in court. A certificate of ILA is strong evidence that you were informed and acted voluntarily, but a court can still set aside an agreement for other reasons, such as fraud, undisclosed assets, or terms that are unconscionable.
ILA is not a way to check the other party's honesty. The lawyer advises on the document in front of you. They are not responsible for investigating whether the other person has disclosed everything accurately, though a good lawyer may suggest that you ask for financial disclosure.
ILA is not the same as legal advice from a friend or family member. Even a lawyer who is a friend or relative may not be able to give truly independent advice, especially if they have a personal interest in the outcome or a conflict of interest.
ILA is not a formality you can skip without consequences. Even when it is not strictly required by law, skipping ILA can weaken your position later if you try to challenge the agreement, or weaken the other party's position if they try to rely on it.
What Happens at an ILA Meeting
A typical ILA meeting covers:
- What the document says, in plain language
- How it affects your rights and obligations, both now and in the future
- What your rights would be if you did not sign the document
- Whether you are signing voluntarily and free from pressure
- Questions you should consider before signing
The lawyer will usually ask to meet with you alone, without the other party present, so you can speak freely. They may also confirm your identity, ask whether you've read the document, and check that you understand any technical terms.
At the end, the lawyer may sign a certificate confirming that the advice was given. This certificate is typically attached to the agreement and kept as a record.
How to Prepare
You'll get more from the meeting if you prepare ahead of time:
- Get the document early. Ask for the final draft well before the signing date so you aren't rushed.
- Read it first. Note any parts you don't understand or that concern you.
- Gather relevant information. In a family law matter, that might include a summary of your income, assets, and debts.
- Write down your questions. It's easy to forget them in the meeting.
- Be honest. The lawyer can only advise on what they know, so tell them if you feel pressured or have doubts.
Why It Matters
Getting ILA helps protect you, because you go into the agreement understanding its effects instead of discovering them later. It can also make the agreement more reliable if it is ever challenged. Courts are more likely to uphold a document when the person who signed it had the chance to get proper advice.
If you've been asked to sign an important document and told to get ILA, treat it as a real opportunity to ask questions and understand your position. If you aren't sure where to begin, your provincial or state law society or bar association can usually help you find a lawyer.
This post provides general information only and is not legal advice. The rules around ILA vary by jurisdiction, so speak with a lawyer about your specific situation.
This article provides general information about the law in Alberta and is not legal advice. Every situation is different. Reading this article does not create a lawyer-client relationship. For advice about your circumstances, contact Andrew Green Law.