Expectations of Legal Practice in the IAP [October 2013 version]
Claimants in the Indian Residential Schools Independent Assessment Process depend upon seasoned, competent lawyers to successfully pursue their compensation claims and assist with their healing journey.
The Chief Adjudicator has established these Expectations to provide guidance to claimants on what they can expect from their lawyer, and to lawyers on the appropriate norms of practice in the IAP. These Expectations are intended to supplement the specific rules and guidelines of the IAP, as well as Law Society rules and the Canadian Bar Association guidelines for lawyers working on Indian Residential Schools claims.
For most IAP lawyers, these Expectations will reflect their existing practice. For others, they will provide useful guidance on the minimum acceptable standard of practice in the IAP
As well, the Court-Appointed Transition Coordinator for Blott & Company claimants, the Honourable Ian H. Pitfield, requires an undertaking to adhere to these Expectations as a condition of receiving files from Blott & Company.
In these Expectations, “lawyer” includes the employees, associates, and agents of a lawyer, including any form-filling or other agency connected with a lawyer or from whom the lawyer accepts referrals.
- 1. Lawyers must ensure they are competent to act prior to accepting clients for IAP claims.
- 2. Lawyers must restrict their IAP practice to the number of cases they can competently and responsibly take on at any one time.
- 3. Upon initial contact with the claimant, lawyers must ensure that:
- communications offering legal services to survivors are welcomed and respectful. Lawyers should not initiate contact with individual survivors to solicit them as clients or inquire about whether they were sexually assaulted;
- advertising is respectful, and is not false or misleading; and
- unconscionable or exploitative means are not used in offering legal services to vulnerable persons, or persons who have suffered a traumatic experience and may not yet have had a chance to recover.
- 4. Lawyers should not enter into a contingency fee agreement until they have met in person with the client, unless it is not reasonable to do so for reasons such as remote location.
- 4.1. Contingency fee agreements between a claimant and a lawyer should:
- not be completed by third parties;
- be the subject of informed discussion between the lawyer and the claimant before signature by the claimant; and
- be provided to the claimant once signed.
- 5. Lawyers should, when receiving a referral or inquiry:
- make initial contact to arrange a meeting within 7 days; and
- meet with the claimant in their home community, or in a mutually agreeable location, within 60 days of contact or referral.
Working with claimants
- 6. Lawyers should routinely inform clients, consult with them, obtain instructions, and give them as much control as possible on the direction of their case. When working with claimants, lawyers should:
- explain the process to the claimant in a way that is understandable and helps the claimant prepare for the IAP experience;
- provide realistic expectations of the length of time required to resolve the claim;
- avoid unnecessary delay, particularly for ill or aging claimants;
- recognize claimants’ special communication needs, including language barriers, cultural expectations, and limited access to telephone and internet service;
- return calls from claimants within 72 hours of receipt; and
- be prepared to deal with claimants’ progressive disclosure of issues related to the claim, and ensure that any new information arising from such disclosure is communicated to the Secretariat and other parties as soon as practicable.
- 7. Lawyers should facilitate their client’s healing process through:
- identifying and providing referrals to appropriate community resources, including counselling resources;
- referring their client to treatment programs, if appropriate;
- recognizing and respecting the need for the client to develop a personal support network;
- cooperating fully with the Adjudication Secretariat to ensure that a health support worker is present at the hearing and any other time the claimant is asked to give evidence;
- making every effort to ensure that their client has an opportunity to meet with the health support worker before their hearing;
- working with their client to ensure that an appropriate future care plan has been developed (where applicable) for presentation at the hearing;
- considering having support people available at other meetings; and
- being aware of available and appropriate referrals in times of crisis.
- 8. Lawyers should obtain the claimant’s preference for the location of their hearing and communicate it to the Adjudication Secretariat. Lawyers must be prepared to travel to the hearing location determined by the Secretariat in accordance with the Settlement Agreement. The primary factors in the location of hearings are economy and the convenience and comfort of the claimant, not the convenience of counsel.
- 9. Lawyers must fully prepare claimants for the hearing. In particular, lawyers should ensure that claimants:
- understand the nature and purpose of the hearing, and what will be expected of them;
- have an opportunity to review (with assistance, where required) pertinent documents such as the application form that may be referred to during the hearing;
- have been given the opportunity to request the hearing location of their choice, and are comfortable with the travel and accommodation arrangements made for them;
- are aware of their right to have a traditional or religious ceremony before and/or after their hearing, such as a smudge, prayer, drum, or song;
- are aware of their right to have support persons attend the hearing with them, and that the Adjudication Secretariat will pay for up to two support persons, as well as an elder or religious person;
- are aware of the health support options available to them, including the opportunity to meet with the health support worker before the hearing;
- are aware of their right to indicate their non-binding preference of whether a representative of the church organization attend their hearing; and
- are asked about any special requirements, such as interpreters, special dietary needs, mobility requirements, or health concerns, and are informed that these needs should be communicated to the Adjudication Secretariat in sufficient time for arrangements to be made.
- 10. Lawyers must advise the parties, the adjudicator, and the Adjudication Secretariat of any health issues or security concerns that might obstruct the safe conduct of the hearing.
- 10.1. If an interpreter is required, the lawyer must communicate the need for this service and the language and dialect of the claimant so that the Adjudication Secretariat can arrange for a certified interpreter to be available at the hearing. An interpreter who is not arranged by the Adjudication Secretariat may not be permitted to perform this role in a hearing.
- 11. Lawyers must:
- ensure that all fees and disbursements are clearly communicated to the claimant in a way that is understandable;
- explain the unique rules that govern legal fees in the IAP, including the government’s contribution toward legal fees/disbursements, the right to have legal fees reviewed by an adjudicator, and the claimant’s responsibility for GST, PST, or HST as applicable;
- release compensation funds to claimants immediately upon receipt, other than legal fees specified in a contingency fee agreement which must remain in a lawyer’s trust account until legal fee review decision is issued;
- pay any remaining compensation funds over and above the approved fees to the claimant immediately upon receipt of the legal fee review decision (or the decision of a reviewing adjudicator where a review has been sought pursuant to paragraph 19 of the Implementation Orders); and
- withdraw fees from the trust account only once authorized by a legal fee review decision (or the decision of a reviewing adjudicator where a review has been sought pursuant to paragraph 19 of the Implementation Orders).
- 12. Lawyers must not:
- charge any disbursements to a claimant. The IAP provides that Canada will pay all reasonable and necessary disbursements upon resolution of the claim, and that adjudicators will resolve any disputes about disbursements; or
- withhold any part of the compensation amount payable to the claimant for any purpose, other than legal fees approved by the adjudicator. The lawyer must not deduct any third party assignments, cash advances, directions to pay, disbursements, costs associated with the management of the file, or anything else, from the amount payable to the claimant.
- 13. Lawyers must not make, recommend, or participate in arrangements:
- to advance or loan compensation funds to claimants;
- to charge the claimant directly for services normally provided by a lawyer, including but not limited to form-filling and document collection; or
- to assign or direct any part of a claimant’s IAP compensation to a third party.
- 13.1. Lawyers must personally review the application form with the claimant and certify the accuracy of its contents. This applies whether or not the application form was prepared by the lawyer, office staff, or a third party, including a form filler.
- 13.2. If a form filler or form filling agency has a fee agreement with the claimant or makes a claim against the lawyer or the claimant, the lawyer must pay any such claim and must notify the claimant immediately in writing. This applies whether or not the agency or form filler is employed by, on contract with, or a source of referrals for the lawyer.
- 14. Lawyers must respect their clients’ right to change counsel, and must assist in the orderly transition of the file to new counsel. Legal fees are only collectible at the successful conclusion of the matter.
- 14.1. Lawyers must not:
- contact or harass a claimant who has exercised the right to change lawyers;
- attempt to dissuade a claimant from exercising their right to change lawyers;
- state or imply that a client will have to pay duplicate or higher fees for having changed to a new lawyer.
- 14.2. A lawyer who takes over a file from another lawyer must protect the claimant from any claims for legal fees, disbursements, taxes, or otherwise by any previous lawyer. Lawyers must not withdraw legal fees from their trust account until those claims have been resolved.
Other rules and guidelines
- 15. In addition to these Expectations, lawyers must comply with rules and guidelines issued by the Chief Adjudicator, the applicable Law Society, and the Canadian Bar Association’s guidelines for lawyers working on Indian Residential SchoolS claims.
Revised - Ocober 3, 2013