By: Alice Woolley
PDF Version: Liability and Lawyers
Case Commented On: Mraz v Herman, 2015 ABQB 573
The recent decision of Justice W.P. Sullivan in Mraz v Herman succinctly disposes of claims made against two Alberta lawyers. The first claim, based on a real estate lawyer’s failure to make proper disclosure to his client, Mrs. Mraz, failed because the lawyer had discussed matters with Mr. Mraz, whom the Court found was Mrs. Mraz’s agent (at para 18). The second claim, based on advice allegedly received from a lawyer participating in the Law Society of Alberta’s lawyer referral service, failed because the plaintiff did not provide any evidence to demonstrate that the lawyer’s conduct fell below the standard of care (at para 77).
The Court’s analysis is straightforward. It does, though, make a few points worth noting and also raises one question (at least for me). First, while the Court does reject the claim against the real estate lawyer on its merits, the Court acknowledges that the lawyer’s fiduciary duties include the obligation to make full disclosure. As I have discussed elsewhere, this approach reflects a consistent trend in the case law on lawyers as fiduciaries, one that while troubling to some commentators properly reflects the lawyer’s central obligation to facilitate a client’s decision-making.
Second, the Court effectively takes the position that the failure of a plaintiff to provide expert evidence in relation to the standard of care precludes proof that the lawyer was negligent (at para 65). While I understand the Court’s point of view, requiring such evidence to assess a lawyer’s negligence seems unduly onerous. Unlike with many other professions – e.g., doctors or engineers – the court is generally capable of independently assessing whether a lawyer’s conduct met the standard of care. The Court can determine, for example, whether a lawyer’s advice was sufficiently accurate, whether the lawyer made an unacceptable error such as missing a governing statute or Supreme Court decision, or if the lawyer failed to take appropriate steps to protect a client’s privileged information. In exercising its inherent jurisdiction over its own processes courts routinely assess the conduct of counsel. As a consequence, while in certain circumstances expert evidence may be necessary, requiring it in every case creates an unnecessary hurdle to the assessment of liability. And given the problems of access to justice, which include the expense associated with pursuing claims, creating unnecessary hurdles to assessing liability is not something the Court ought to do.
Third, the Court clarifies that lawyers participating in lawyer referral services can be liable for the advice or information they provide. The Court notes, however, that the imposition of such liability must be sensitive to the importance of referral services in fostering access to justice:
While there has to be protection for those receiving legal advice so that they can rely on the information they are receiving, it benefits no one to go too far to the other end of the spectrum by placing too great a liability on legal referral services and their volunteers when they merely provide legal information. Such measures could have a chilling effect on participation in those services for fear of liability (at para 76).
And finally the question. One aspect of the judgment puzzles me. Specifically, the litigation in this case arose from the lawyer accepting a revised tender in a real estate sale without discussing it with Mrs. Mraz. I would have thought that the legal issue in that case would be that the lawyer acted without receiving proper instructions, not that the lawyer failed to make full disclosure. The absence of disclosure matters, but surely accepting a tender without being instructed to do so by your client is an even more obvious breach of the lawyer’s duties. Nothing particularly turns on this – either way, Mr. Mraz being Mrs. Mraz’s agent means that the lawyer did disclose and (presumably) received instructions to accept the revised tender. But the framing of the claim just seems odd to me because it seems much more egregious to act without instructions than to, say, act with instructions which were based on improper disclosure. The latter is bad – and a violation of the lawyer’s fiduciary duties – but the former is worse, and does appear to be what was alleged (although not proven) to have happened here.
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Paul McLaughlin
Alice: In effect, you are saying that judges should be able to take judicial notice of the standard of care applicable to some lawyers (ie., expert witnesses aren’t needed to prove the standard of care because judges “just know” the standard).
I agree that QB judges should be able to take judicial notice of the standards of care applicable to counsel engaged in litigation. However, I don’t think they should be able to take judicial notice of the standard of care applicable to solicitors engaged in non-litigious contexts. Allowing them to rely on outmoded and unchallengeable memories of practice, rather than expert evidence of current practice, when judging lawyers would be unfair to the lawyers as parties.
Alice
Paul, your comment confuses two issues: 1) taking judicial notice; 2) whether one needs expert evidence to prove something. Judges determine standard of care in tort cases all the time without expert evidence. They assess the conduct based on the evidence they have about the situation and the decisions made. Making a decision based on the evidence, but without additionally requiring expert evidence, is not taking judicial notice.
Paul McLaughlin
Alice: I didn’t say that giving judges the scope to determine the standard of care as you recommend constitutes judicial notice, I said it is _in effect_ judicial notice.
I disagree with your statement, “Unlike with many other professions – e.g., doctors or engineers – the court is generally capable of independently assessing whether a lawyer’s conduct met the standard of care. The Court can determine, for example, whether a lawyer’s advice was sufficiently accurate, whether the lawyer made an unacceptable error such as missing a governing statute or Supreme Court decision, or if the lawyer failed to take appropriate steps to protect a client’s privileged information.” The Court can determine, on the facts, whether the advice was accurate, but the determination of whether it was “sufficiently” accurate requires the application of a standard that the judge should not determine without expert evidence about the standard currently expected of lawyers in all the circumstances of the case. Similar considerations apply to whether the error was “unacceptable” or whether the steps the lawyer took to protect privilege were or were not “appropriate”.
Judges are ex-lawyers, with the emphasis on the “ex-“, and the longer they have been on the bench, the further they are from current practice. They were, for the most part, superior ex-lawyers, whose practice standards exceeded the legal standard of care. My concern with your position is that it opens the door for judges to base their judgments on outmoded assumptions about law practice and a “what would I have done in this situation?” thought process that is unfair to defendant lawyers because it is not open to challenge through cross-examination. In effect, it subjects lawyers to arbitrary palm-tree decision-making. The burden of providing expert evidence is only “onerous” where it needs to be. Lawyers deserve as much protection from disgruntled clients as other professionals.
Jim Chronopoulos
Alice is correct to say that “Judges determine standard of care in tort cases all the time without expert evidence”. However, in a lawyer negligence case, the analysis flows under an *expert’s* standard of care.
How does one determine the standard of care of an expert without evidence of that expert’s peers? Without that evidence, a trial Judge must refer to her own past “expert” experiences (either as practitioner or as a trial judge) to evaluate the defendant’s negligence. That evidence is never tested under cross examination nor can it even be argued against (say in closing argument) since the Judge’s analysis only gets revealed for the first time in the actual decision.
Both of you will not be surprised to hear that there are contradictory decisions on this issue within Alberta and across Canada (see Malton v. Attia, 2013 ABQB 642).
Although the Malton decision favours Alice’s views, I can tell you it is currently under appeal.
http://www.canlii.org/en/ab/abqb/doc/2013/2013abqb642/2013abqb642.html?autocompleteStr=Attia&autocompletePos=1
Grant Watson
Interesting discussion. I tend to agree with Paul and Jim when they point out the problems with allowing what would amount to judicial notice as to a particular standard of care. I realize that Alice isn’t suggesting that “true” judicial notice is appropriate (i.e. there must be some evidence, even if not expert), but I question what evidence, other than that of an expert, could answer a question about the standard of care of any professional.
Paul and Jim make great points about the ability to cross-examine on the issue of the duty of care. Also important, I think, is that even our best judges don’t know everything about all areas of practice. I don’t think that any court would qualify any lawyer or law professor as an expert in “all law.” I do think the idea of allowing something close to judicial notice in place of expert evidence could only have one of two effects: 1) The judge would have decide on a case-by-case basis whether he or she is qualified to advise himself/herself as to “law” generally, or 2) The judge would have to undertake a self-qualification analysis to determine whether he or she is sufficiently expert in the area of law in question to forego actual expert evidence. The latter would presumably be an exercise that takes place in the judge’s mind only, and not an open process like actual qualification of an expert, which I see as being problematic.