How to Treat Your Section 3 Counsel: A Guide for Other Parties

  • 02 décembre 2019
  • Alexander Procope, Perez Bryan Procope LLP

  1. Facilitate, rather than obstruct, section 3 counsel’s private and confidential access to the client. Lawyers require confidential access to their client to ensure that the instructions obtained are independent and any risk of undue influence is minimized. A dispute over access to the client wastes money, casts the interfering party in a poor light, and may preclude the independent expression of the person’s wishes that may be relevant throughout a dispute. All parties have a role to play in ensuring that this threshold level of access is available.
  2. Provide information that will assist the section 3 counsel. Section 3 counsel are often starting with very little information about the practicalities of meeting with the client. Section 3 counsel already has the benefit of at least one party’s positions on the issues, but more specific details about the client can help prepare section 3 counsel to make the most of meetings. For example, how does the allegedly incapable person typically communicate to arrange meetings, are there independent caregivers involved, are there any notable communication disabilities like hearing or sight deficits, is the person more cognitively aware in the morning rather than the evening, or does the person tend to fatigue after a certain duration of conversation.   
  3. Do not attempt to direct section 3 counsel. Section 3 counsel, like any other counsel, has full authority to determine the parameters of their relationship with the client. It is perfectly legitimate for other parties to ask section 3 counsel to explore certain topics with the client, while recognizing that the ultimate decision on when and how to do so lies with counsel.