Process to Attaining a CERTIFICATE of INDEPENDENT LEGAL ADVICE

Your lawyer to advise and provide Independent Legal Advice (ILA).

Schedule an appointment with our law firm at 403-400-4092 or Chris@NeufeldLegal.com

Obtaining a Certificate of Independent Legal Advice is a critical step in many high-stakes, personally-impactful transactions, such that the lawyer's confirmation of having provided objective, unbiased legal counsel is a legal imperative to formalizing the underlying agreement. The purpose of Independent Legal Advice (ILA) is to ensure that the recipient individual fully understand the legal risks, obligations, and consequences of the document they are about to sign, and to confirm that they are doing so voluntarily without any undue pressure. Because the lawyer providing the ILA must be completely impartial, they cannot be the same lawyer representing the other party in the transaction [more on documents requiring ILA].

Step 1 - Finding the Appropriate Lawyer - To begin the process, you must source a qualified lawyer who has the requisite legal experience and knowledge to provide ILA specific to the underlying document that you are being asked to sign off on. It is essential to choose a lawyer who has no prior connection to the other party involved to avoid any "conflict of interest." When reaching out to law firms, explicitly state that you require a "Certificate of Independent Legal Advice." This allows the law firm to perform an internal conflict check immediately and provide you with a quote for their services, once they have had the opportunity to undertake a preliminary review the underlying document and understand what will be entailed in their review and advisement process.

Step 2 - Disclosure to the Lawyer: Once you have retained a lawyer, the disclosure phase begins. You must provide the lawyer with the pertinent documents, which includes not only the underlying document, but also any schedules and/or financial disclosures mentioned within it. The lawyer may also ask for additional information about yourself, your relations with other parties, your personal and financial circumstances, and other aspects, such that they have an appropriate understanding of the circumstances and how they might best shape their meeting with yourself. It is vital to provide these documents and the requested information well in advance of your scheduled meeting. A lawyer cannot provide meaningful advice if they are seeing the contract for the first time during your appointment. Providing the materials early allows the lawyer to highlight potential "red flags" and prepare a comprehensive summary of how the terms specifically impact your future rights.

Step 3 - Prepare & Educate Yourself for the Meeting: While your lawyer will explain the legalities, you should arrive at the meeting having already read the document thoroughly. Highlight any clauses that seem ambiguous or that cause you concern. Coming prepared with specific questions ensures that the session is productive and that you leave the meeting with a clear understanding of your legal standing, rather than just a signed certificate. Furthermore, it is the recommendation of many Law Societies that you provide the lawyer with your understanding of the underlying document as part of the lawyer providing ILA (so when a lawyer asks you to explain the agreement to them, the lawyer is doing so because this is specifically sought by their Law Society).

Step 4 - Meeting with the Lawyer: During the meeting itself, expect to be alone with the lawyer. To maintain the integrity of "independence," the other party or their legal counsel cannot be present. The lawyer will likely walk you through the document section by section, explaining the "worst-case scenarios" and seek to ensure that you aren't being coerced or unduly influenced. To be clear, it is not the lawyer's role to tell you whether or not the underlying arrangement is "fair" in a moral sense, but rather to ensure you know exactly what you are giving up and what you are gaining (if anything) by signing.

Step 5 - Finalizing the Certificate: After the lawyer is satisfied that you understand the document and are signing it of your own free will, they will execute the Certificate of Independent Legal Advice. This is a formal document, often attached to the back of the main document, signed by the lawyer. This certificate serves as a shield for the entire transaction; it prevents a party from later claiming in court that they "didn't know what they were signing." Once the meeting is over, ensure you keep a copy of the signed certificate and the specific version of the agreement that was reviewed for your own records.

Although this process might appear relatively straightforward, it is anything but that, given the lawyer's professional and ethical obligations. The expectations are not insignificant as is evident from the discussions of the Law Societies, with the Canadian Bar Association stating that the lawyer's provision of independent legal advice will typically run from 30 minutes to 3 hours, based on the complexity of the documents that must be opined on [more on time involved with ILA].

Important Note for Anyone receiving Independent Legal Advice: For anyone being asked to receive Independent Legal Advice (ILA), it is crucial to understand the significant financial responsibility and risks involved. If there wasn't serious risk, ILA would not be sought, especially where it is required by statute, such that the government considers the financial exposure sufficiently serious, that the government has legislated in those instances the attainment of ILA [about our law firm providing ILA and controlling cost].

When you are required to a knowledgable lawyer to advise and provide Independent Legal Advice, contact our law firm by email at Chris@NeufeldLegal.com or by telephone at 403-400-4092 to schedule an appointment (including remote video and evening mobile legal services).

 

Independent Legal Advice (ILA)

Attaining ILA when Outside Canada

Attaining Independent Legal Advice (ILA) and the necessary Certificate of ILA while outside Canada has become increasingly prevalent in my own legal practice, which can be attributed in part to the increasing mobility of individuals and the recognition that legal matters can be undertaken between countries and continents (and multiple time zones). In turn, parties to Alberta real estate transactions, domestic agreements, or corporate guarantees often find themselves in foreign jurisdictions when a signature is required. As such, following the guidance of the Alberta Law Society, we can provide ILA to clients all over the world, such that it isn't necessary to return to Canada to undertake a process that can take full advantage of video communications and the Internet.

The technical execution of an independent legal advice session for someone outside of Canada has been significantly altered by the permanent adoption of remote witnessing and notarizing rules in Alberta. We can conduct the ILA session via a secure video conferencing platform, provided we can clearly see and hear you and witness the signing of the documents in real time. You must typically provide high-quality scans of their government-issued identification beforehand to allow us to cross-reference the physical ID shown during the video call. During the meeting, we look to ensure that you understand the nature and effect of the documents (drawing upon your understanding and clarifying specifics, which is the Law Society preferred approach), such as a personal guarantee or a dower release, ensuring you understand the specific risks associated with Alberta legislation. Once you sign the documents on camera, you are required to email ourselves PDF copies and courier the original physical copies back to our office in Alberta. We then proceed to sign the Certificate of Independent Legal Advice, confirming that the session took place and that you appeared to execute the documents of your own free will.

Even real estate documents submitted to Alberta Land Titles have now transitioned to permissive remote signing provided the lawyer follows the protocols strictly and Alberta Land Titles receives physical originals with wet ink signatures [with further advancements anticipated for the end of 2026].

Interpreter Requirements for Non-English Speakers

When you are not sufficiently proficient in the English language, we have heightened responsibilty to that you fully understand the legal consequences of the document before signing off. As such, we will require that a professional translator or a qualified interpreter is a participant in our ILA session to bridge the linguistic gap and preserve the independent nature of the advice. This means a paid professional translator / interpreter who is not a friend or family member, as their personal involvement could inadvertently introduce bias or undue influence into the session (and negate the legitimacy of our ILA). Furthermore, we must be satisfied that the translation is accurate, contemporaneous, and covers every material aspect of the legal obligations being assumed by yourself. Ultimately, our Certificate of ILA  serves as a representation that you comprehended the advice, making the presence of a competent translator a critical component of our due diligence and ethical obligation to both yourself and the Alberta Law Society.

From a practical and evidentiary standpoint, we look to document the involvement of the translator to protect the validity of the executed documents against future challenges. As such, we require the name, credentials, and contact information of the interpreter used, along with a confirmation that the interpreter is an arm's-length third party. If the documentation is being signed remotely, we will ask the translator to sign a separate affidavit or a confirmation of translation to be appended to the ILA certificate. This added layer of formality helps demonstrate that we took reasonable steps to overcome any communication barriers that could otherwise render the advice ineffective. Failure to provide a proper translator when a language barrier exists can lead to our advice being set aside by a court. Given your desire to ensure the legal enforceability of the agreement, undertake these arduous steps is a necessity to achieving the intended results.