Notices to Counsel
Important New Materials Regarding Conduct of Lawyers in the IAP
October 21, 2013
I begin by observing that we are fortunate that the vast majority of lawyers representing claimants in the IAP are diligent and do excellent and highly ethical work. The IAP is a complicated process and former students of residential schools, adjudicators and the Secretariat all benefit from claimants having access to quality legal services. The Secretariat always advises claimants of the importance of retaining counsel.
It is, however, an unfortunate reality that despite the many Chief Adjudicator Legal Fee Appeal decisions setting out the standards expected of legal counsel (available to counsel on the IAP Decisions Database) and the many court decisions that speak to the requirements of counsel in the IAP, a small minority of legal counsel continue to engage in practices that effectively deprive claimants of the benefits they are entitled to expect from the Settlement Agreement. Such practices include:
- facilitating third party loans and cash advances (and resulting assignments or directions to pay, which the British Columbia Supreme Court and Court of Appeal have confirmed violate the Settlement Agreement and the Financial Administration Act),
- relying on non-lawyer form-fillers, and compounding the problem by facilitating payment of significant fees – often improperly taken from claimant awards – to such form-fillers,
- purporting to circumvent adjudicators’ responsibilities in the legal fee review process, and
- improperly charging disbursements to claimants.
My predecessor, Dan Ish, has taken steps to protect the interests of claimants, including bringing court actions to prevent or investigate such practices, and reporting lawyers to law societies.
As Chief Adjudicator, I believe that ongoing vigilance is required to protect claimants and the integrity of the IAP. Today, we are releasing updated materials to address specific concerns identified to date, and clarify the expectations of counsel practising in the IAP. The attached materials are:
- An updated template for legal fee reviews. This template contains new clauses protecting claimants, including text that spells out exactly how much the claimant should receive, and protecting claimants from claims by form fillers and other lawyers.
- Revision 3 of Guidance Paper 1, “Factors to consider in the exercise of adjudicators’ responsibilities to review legal fees under IAP.” This revision refines the previous versions and confirms the authority of adjudicators to reduce legal fees to an amount lower than Canada’s 15% contribution in appropriate cases, such as lack of preparation and lack of expertise.
- Updated Expectations of Legal Practice in the IAP. This document, which sets out the minimum acceptable standards of practice in the IAP, has been updated to address issues related to contingency fee agreements, hearing locations, interpreters, legal fees, form fillers, and changes of legal counsel.
These changes reflect norms of practice that are well-established, often for years. Therefore, for the vast majority of claimant counsel in the IAP, these documents will have no impact on your day-to-day work. For those few who persist in unconscionable and illegal conduct, they serve as a further indication that the mistreatment or exploitation of vulnerable claimants in the IAP will not be tolerated.
All of us benefit from a process conducted with integrity, to which claimants and lawyers can look back upon with pride. I look forward to continued co-operation with the claimant counsel bar in ensuring that these objectives are met. Thank you.
Daniel Shapiro, Q.C,