September 1st, 2021
Lawyers are governed by the Rules of the Law Society of Alberta and the Code of Conduct. All lawyers are familiar with their obligation as set out in the Rules and Code and, for many, practice their entire careers without issue. The case of Malton v Attia, 2021 ABQB 503 dealt with a lawyer who was retained to sue a home inspector for failing to properly inspect a home they had purchased. The homeowners were partially successful but, the damages were significantly lower than anticipated and they sued their lawyer for negligence. The original case was tried, appealed and this decision concerns the re-trial of that action.
The decision of Madam Justice M.E. Burns provides useful insight for new and current practitioners in her discussion of the standard of care of a lawyer and, more importantly, in this specific lawyer’s failure to meet that standard of care. Central to the lawyer’s failure to meet the standard of care in Malton v. Attia was a breakdown in the communication between the lawyer, Mr. Attia, and his clients, the Maltons.
The decision plainly states that “The standard of care expected of a lawyer is reasonable competency and diligence.” Madam Justice M.E. Burns, citing prior decisions, notes that the standard is assessed given the circumstances of the case and that, although the codes of conduct are relevant, they do not and cannot dictate the standard of care. The standard of care is not perfect and, interestingly, although there may be disastrous results, it does not always mean there was a breach of the standard of care. A “[l]awyer’s duty is to diligently protect the interest of the client and to communicate in a timely fashion about perceived difficulties”. Ashraf v. Zinner, 2019 ABQB at paras 59-60.
Many of the circumstances in which the lawyer, Mr. Attia, breached of the standard of care are common situations in which many lawyers may find themselves. There are numerous issues on which Mr. Attia was accused of failing to meet the standard of care required of him.
For the purposes of this post, not all the issues will be reviewed but, the focus will be on learning from the mistakes that Mr. Attia made in failing to effectively communicate with his clients.
The plaintiffs asserted that Mr. Attia was difficult to get a response from and, difficult to get information from when required. Madam Justice M.E. Burns noted that “Communicating with the client at all relevant stages of a matter is key to a lawyer’s retainer and meeting the lawyer’s standard of care.” Although Mr. Attia was not explicitly found to have breached the standard of care in communicating with his clients, it was noted that this failure to communicate invited many of the problems that led to Mr. Attia failing to meet the standard expected.
All lawyers, especially those in solo or small practices, are familiar with being very busy managing the various aspects of being a lawyer. Communicating with clients, especially when it is simply a status update on their file, is an easily overlooked aspect of managing the lawyer-client relationship. Lawyers may even be tempted, as Mr. Attia was, to reduce communication to “keep costs down”. This desire may be more strongly felt with clients who are cost conscious and do not want to incur any “unnecessary” expenses.
Although there are strategies for reducing costs for clients, reducing communication is not an effective strategy. Reducing communication with clients simply invites unnecessary risk for lawyers as an element of the Code of Conduct’s definition of a “competent lawyer” is communicating. As lawyers, we must keep our clients informed of the progress of their matter. By ensuring that a client is always well informed of the progress of their matter, lawyer’s may better protect themselves if an issue is raised later.
Providing a client with regular communication and updates as to how their matter is progressing is an effective strategy to managing the lawyer-client relationship. Clear communication reduces the possibility of misunderstandings. Unexpected or unpredictable issues may arise during the course of a matter. If clients have a clear understanding of their case, they will be in a better position to provide informed instructions. They will be better able to make informed decisions as issues arise. Regardless of the issue, a lawyer should engage in clear and regular communication with their client.
In Malton v. Attia, the plaintiffs asserted that Mr. Attia advised them that they must, by law, mitigate their damages, no matter the cost. Although a lawyer may recognize this is incorrect, the mistake is not obvious to clients with no legal training. Mr. Attia’s testimony was that he believed that the safest strategy was for the plaintiffs to repair the house in case they could not recover against the defendant. Madam Justice M.E. Burns noted that “it is not Mr. Attia’s job to decide what is in the [plaintiff’s] best interest – it is his job to advise them as to the law…”
This is a dangerous pitfall as lawyers, especially family lawyers, may find themselves in a position where their client is either directly or indirectly asking their lawyer to decide an issue for them. Lawyers may feel pressured to do so because their client is paying for them to provide their opinion. But lawyers should be careful and only provide their opinion. Although difficult, they should be cautious not to overstep into the territory of deciding what is in their client’s best interest. To avoid this pitfall, an effective strategy is to ensure that a lawyer has written instructions from their client on how to proceed. If a lawyer cannot obtain written instructions from their client, they should keep detailed notes or obtain some other form of acknowledgment from their client.
There may be circumstances where a client simply instructs the lawyer to decide. A lawyer should refuse to do so. There is a clear distinction between providing advice and deciding the course of action. Lawyers should provide their opinion. A range of informed and reasonable options should be given. The client should then decide and instruct the lawyer on how to proceed. Although the distinction may appear to be minimal, properly advising a client of all their options and then receiving instructions may be the difference between breaching the standard of care and not.
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