By Kathleen Martens and Paul Barnsley
APTN National News
WINNIPEG--Lawyers may see their fees reduced if they break the rules as they guide former students of Indian residential schools through the complex legal process designed to provide compensation for serious physical and sexual abuse suffered at the schools.
That’s what the man in charge told the more than 200 lawyers who have clients participating in the Independent Assessment Process (IAP) in a memo he sent out on June 13.
Daniel Ish, the IAP chief adjudicator, warned the lawyers that “unethical” practices could cost them all or part of their fees. As part of the Indian Residential Schools Settlement Agreement, the government of Canada is committed to paying lawyers 15 per cent of the compensation awards their clients receive if their claims are ruled legitimate by IAP adjudicators.
But the chief adjudicator’s memo states that 15 per cent is not guaranteed to lawyers who abuse the system.
“Canada’s 15 per cent contribution toward legal fees is not a guaranteed minimum, irrespective of the adequacy and quality of legal services provided to claimants,” Ish wrote.
The memo, obtained by APTN Investigates, did not mention how many lawyers are breaking the rules. Sources say it’s likely only a small minority.
A close reading of the memo reveals a number of very serious abuses within the system – one designed to compensate former residential school students for the most serious physical and sexual abuse. Ish told the lawyers about a number of unethical- and even unlawful- practices that have come to his attention.
The issue has also been discussed by the IAP’s National Oversight Committee (OC), a group made up of representatives of all the parties to the Indian Residential Schools Settlement Agreement. The OC supervises, manages and has responsibility for the IAP.
More details are available in the minutes of the OC meetings, which are posted online.
“In some cases claimant counsel are not meeting with their clients prior to the hearing. The certification in the application by some counsel that there has been an in-person meeting with the claimant is questionable,” the minutes of the OC’s March 29 meeting state.
The minutes of another OC meeting explained the kind of conduct that Ish said in his memo will lead to reduction of payments to lawyers.
“As examples of conduct that might warrant such a reduction, [Ish] cited lawyers who repeatedly attended with the wrong client, claims where the application form bears no resemblance to the case, and application forms where the lawyers’ certification is signed by someone else, photocopied, or falsified. All of these are, regrettably, actual situations that have occurred,” the minutes of the June 21 meeting report.
Sources familiar with the IAP process say each of the examples cited by the chief adjudicator is evidence of a serious abuse.
Lawyers are expected to be familiar with the files, to take the time to meet and prepare for adjudication hearings with their clients and to sign a certification document verifying that they have done so.
If they are not familiar with the files or haven’t met with the client before the hearing, there is a chance that legitimate compensation claims could be dismissed or that compensation awards will be much smaller than they should be. The IAP has a number of different categories. In theory, the more serious the abuse the former student suffered, the higher the compensation will be.
If lawyers have not signed the certification that they have met with the client before the hearing, it could be an oversight or it could be an indication that lawyers who have not met with the client do not want to get caught signing a false statement, something that could bring serious legal consequences.
In his memo, the chief adjudicator also “reminded counsel that amounts payable under the Settlement Agreement cannot be assigned to other persons or agencies.”
In a 2007 decision rendered by the late Donald Brenner, Chief Justice of the Supreme Court of British Columbia until his death in 2011, the matter of having former residential school students “assign” or sign over part of their settlement to a third party in order to get cash advances against the settlement, was expressly forbidden. Brenner ruled that any contract that purported to do that, cannot be enforced and is not binding.
But Ish felt the need to remind the lawyers of the court’s ruling.
“It has been brought to my attention that at least one firm has delivered cheques for compensation funds, payable to the claimant, to a third party for ‘delivery’ to the claimant. The claimant is then asked to endorse the cheque to the third party for services rendered in processing the IAP claim. This must certainly be an unethical practice,” he wrote in his memo.
Legal sources say the reason it would be considered unethical is that the payment to third parties would not show up when the payment received by the lawyer is reviewed for “fairness and reasonableness” because it is included in the payment to the client even though the client ultimately will not receive it.