Mess­ing with fees for lawyers could leave vic­tims in the cold.

National Post (National Edition) - - FRONT PAGE - MARNI SOUP­COFF Na­tional Post

It doesn’t mat­ter that per­sonal in­jury lawyers have a rep­u­ta­tion for be­ing preda­tory am­bu­lancechasers, more con­cerned with mak­ing a buck than with seek­ing justice; nor does it mat­ter that this rep­u­ta­tion is not en­tirely un­de­served, even if it may get ex­ag­ger­ated by pop cul­ture por­tray­als and the taste­less ways some in­jury lawyers choose to ad­ver­tise their ser­vices. It is still a very bad pol­icy idea to legally cap lawyers’ con­tin­gency fees at 15 per cent.

The new On­tario pri­vate mem­ber’s bill in­tro­duced ear­lier this month by Lib­eral MPP Michael Colle (Eglin­tonLawrence) would do just that — make it il­le­gal for a lawyer to take more than 15 per cent of a client’s dam­age award as pay­ment for le­gal ser­vices, even if the client would will­ingly agree to a higher per­cent­age — which sounds like such a virtuous idea that it’s worth tak­ing a closer look at why the re­sults would likely not be of ben­e­fit to ac­ci­dent vic­tims.

Nev­er­the­less, be­fore we get there, let’s keep in mind that it is right for the gov­ern­ment to take steps to en­sure that con­tin­gency agree­ments be­tween lawyers and clients — agree­ments that a client doesn’t pay the lawyer un­less he wins his case — are trans­par­ent and well-un­der­stood by all par­ties.

In the wake of a se­ri­ous in­jury — with pain, anger, con­fu­sion, and fi­nan­cial pres­sures com­pet­ing for a vic­tim’s at­ten­tion — the prom­ise of a lawyer tak­ing on the case with no money up­front could very well make it easy for a vic­tim not to fo­cus on the fact that the le­gal ser­vices on of­fer are none­the­less not “free,” and come with a po­ten­tially siz­able price tag in the form of a chunk of what the court awards the vic­tim (e.g., $20,000 of a $100,000 award in the event of a 20 per cent con­tin­gency ar­range­ment). Credit to Colle: his bill would re­quire a writ­ten lawyer/ client agree­ment to state in a “clear, com­pre­hen­si­ble and prom­i­nent” way the means by which the lawyer’s cut will be cal­cu­lated.

But let’s get back to the pro­posed cap. No one se­ri­ously be­lieves that a lawyer will win all his cases, not even all his cases that seem to an ob­jec­tive ob­server to seek an hon­ourable and com­mend­able out­come for a real vic­tim. Per­sonal in­jury lawyers who work on a con­tin­gency ba­sis are al­ways fac­ing a gen­uine risk of work­ing long hours and ex­pend­ing con­sid­er­able amounts of re­sources on a law­suit, then be­ing paid noth­ing for their trou­bles.

They off­set this risk with higher con­tin­gency rates so that the cases they do win can cover those they lose (and then some so that they ac­tu­ally make a profit). Ex­actly what those rates will be to make the whole thing worth­while for the lawyer will vary from firm to firm, spe­cialty to spe­cialty, cir­cum­stance to cir­cum­stance.

Given lawyers’ gen­eral pop­u­lar­ity, this ap­peal to al­low bound­less con­tin­gency per­cent­ages so lawyers don’t go broke and/or hun­gry would per­haps be un­con­vinc­ing on its own. But please, don’t for­get — a con­tin­gency fee ar­range­ment is what al­lows ac­ci­dent vic­tims of all eco­nomic means to seek their due in court. There is vir­tu­ally no mean­ing­ful le­gal aid avail­able for civil cases, which means a per­son who suf­fers a real, ma­jor, pre­ventable in­jury caused by an­other party — let’s say se­ri­ous brain dam­age that ren­ders the in­di­vid­ual un­able to care for his chil­dren and in need of ex­pen­sive treat­ment and equip­ment — has to have his own cash to hire a lawyer to rep­re­sent him.

Few peo­ple have ac­cess to the money it takes to re­tain a lawyer un­der these cir­cum­stances, es­pe­cially since there is no guar­an­tee the vic­tim will re­ceive any mon­e­tary award through the case, let alone a gen­er­ous one. But with a con­tin­gency fee ar­range­ment, the vic­tim can get com­pe­tent le­gal rep­re­sen­ta­tion with­out hav­ing to find funds he doesn’t have, and with­out risk­ing the funds he does.

Lit­i­ga­tion is pro­hib­i­tively ex­pen­sive, but con­tin­gency ar­range­ments give both lawyers and vic­tims an in­cen­tive to use the courts to en­sure that those who have been harmed be­cause of an­other per­son’s reck­less­ness or neg­li­gence will be made whole again. That is, as long as the con­tin­gency ar­range­ments are set at a rate that makes the whole en­deav­our ad­van­ta­geous for all con­cerned — a rate which could very con­ceiv­ably be higher than 15%.

Ac­cord­ing to the Toronto Star, em­bat­tled per­sonal in­jury lawyers Di­a­mond & Di­a­mond have hired lob­by­ists to try to con­vince politi­cians to re­ject Colle’s pro­posal, which seems rather an over­heated re­ac­tion to a hum­ble pri­vate mem­ber’s bill.

But my good­ness, for the far more mod­est fees of a free­lance news­pa­per columnist, I reach the same con­clu­sion as the hired-gun com­mu­ni­ca­tion strate­gists. Cap­ping con­tin­gency fees at 15 per cent re­ally would leave a great many ac­ci­dent vic­tims with­out a lawyer, which should raise alarm bells with any­one who wants to see the in­jured of­fered greater pro­tec­tions.

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