I have a really smart friend, can he/she represent me in my claim against ICBC?

Our clients frequently have a friend or relative who they respect and trust, and they want that person to be involved in their accident claim. While it is always comforting to have someone you trust help you out in difficult situations, there are at least three issues to consider before asking a non-lawyer to help you with your legal dispute:

  1. If your friend/relative makes a mistake, you may lose your claim against ICBC.
  2. Your friend/relative may be personally liable for “unauthorized practice of law”.
  3. That friend/relative may be compelled to testify against you.

The first two issues were considered in the recent decision of Woolsey v. Dawson Creek (City), 2011 BCSC 986. In that case, the plaintiff had her son, Mr. Mortensen, represent her in a lawsuit against the City of Dawson Creek. Unfortunately, Mr. Mortensen was unable to draft proper legal documents for the lawsuit (known as pleadings), and the plaintiff’s claim was dismissed. The court had previously given directions to the plaintiff regarding the legal documents, but Mr. Mortensen did not follow those directions correctly. Justice Silverman concluded that without the help of a lawyer, it was unlikely that the plaintiff would be able to take the required steps in the lawsuit:

[19] The plaintiff argues that it has complied with every affirmative direction of Cullen J.’s order, as noted in his paragraph 31. However, while I am satisfied that the directions of Cullen J.’s paragraph 31 have been complied with, the amended Notice of Civil Claim still fails to address those other comments and directions of Cullen J. which I have previously referred to.

[20] It follows that I am satisfied that these pleadings must be struck. While the plaintiff will no doubt consider this unfair in view of the fact that Mr. Mortensen is not a lawyer, I note that this is the second time the application has been made. I have no confidence that a third attempt to plead correctly would achieve a positive result. I am satisfied that this is because Mr. Mortensen does not have the training or the skills of a lawyer, although I am also satisfied that the plaintiff attempted, through Mr. Mortensen, to comply with Cullen J.’s order.

The judge went on to say that Mr. Mortensen could be in breach of the Legal Profession Act as he was engaging in the practice of law, but chose not to make any ruling on that issue. The Legal Profession Act provides that the following activities are included in its definition of the “practice of law”:

(a) appearing as counsel or advocate,
(b) drawing, revising or settling

(i) a petition, memorandum, notice of articles or articles under the Business Corporations Act, or an application, statement, affidavit, minute, resolution, bylaw or other document relating to the incorporation, registration, organization, reorganization, dissolution or winding up of a corporate body,
(ii) a document for use in a proceeding, judicial or extrajudicial,
(iii) a will, deed of settlement, trust deed, power of attorney or a document relating to a probate or letters of administration or the estate of a deceased person,
(iv) a document relating in any way to a proceeding under a statute of Canada or British Columbia, or
(v) an instrument relating to real or personal estate that is intended, permitted or required to be registered, recorded or filed in a registry or other public office,

(c) doing an act or negotiating in any way for the settlement of, or settling, a claim or demand for damages,
(d) agreeing to place at the disposal of another person the services of a lawyer,
(e) giving legal advice,
(f) making an offer to do anything referred to in paragraphs (a) to (e), and
(g) making a representation by a person that he or she is qualified or entitled to do anything referred to in paragraphs (a) to (e)

The Legal Profession Act prohibits non-lawyers from engaging in the “practice of law”, with a handful of exceptions: s. 15. Under s. 85 of the Act, unauthorized practice of law is an offence. Note that this is not unique to lawyers, and there are similar prohibitions against the unauthorized practice of medicine, engineering, beekeeping and solemnization of marriage.

The final point is that discussions with a lawyer about legal issues are generally protected by solicitor-client privilege. Solicitor-client privilege allows you to seek legal advice without worrying that the information you share with your lawyer could be used against you in court. However, if you provide legally sensitive information to a non-lawyer, ICBC may be able to call that person as a witness, and compel him or her to disclose the information that you shared with him or her. If your friend or relative refuses to speak to ICBC, they could serve him or her with a subpoena, requiring your friend or relative to attend trial and answer questions under oath.

(written by Troy McLelan)

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