10 Jun Lawyers’ Duties and Obligations Beyond Settlement
In the role as a competent representative of clients, the personal injury lawyer performs various functions. As an advisor, the lawyer provides a client with an understanding of his or her legal rights and obligations. As an advocate, the lawyer advances the clients position fearlessly and with vigour. As negotiator, the lawyer seeks a result advantageous to the client relative to the realities of the case and the requirements of fair and honest dealings. As an intermediary, advisor and evaluator, the lawyer seeks to reconcile the interests of both parties. Competent representation, then, implies that the lawyer takes on the case with sufficient legal knowledge, skill and training to properly perform these numerous functions.
It appears as if these functions are confined to the legal process and end at a settlement agreement, as conventional wisdom may have it.
In a modern context, best practices in advocacy require that a lawyer do more. The advocate’s obligations to secure justice for clients require that the lawyer have on-going involvement with the client after the settlement is concluded or the amount of the judgment is recovered.
As an advocate, and more generally as a public citizen, the lawyer should seek positive change in the law, and in the way law is practiced, and should apply his or her knowledge of the law beyond its usefulness as a vehicle for reaching an agreement between disputing parties. This works not only to strengthen lawyer-client relationships but also, within the legal profession itself, promotes better lawyer-to-lawyer relationships and thus better client results. We believe that in order to nurture these relationships, it is necessary to work beyond the settlement phase of a case, and to provide continued guidance and advocacy to injured persons and their families who find themselves in unfamiliar environments.
It is well-known in the helping professions that when one is involved in a serious motor vehicle accident, one’s needs become overwhelming. Clients who have been injured not only need competent legal representation of the highest calibre, but also need a tremendous amount of support on a number of levels. This need for support does not end when a case settles. For the client who has suffered a severe injury, the recovery process and the needs associated with achieving maximal recovery are life-long endeavours. The personal injury lawyer should therefore continue to perform certain functions even after settlement, namely to act as advocate, advisor and evaluator.
When performing functions beyond the settlement phase, the lawyer may consider this a contribution to the public interest, an act pro bono publico. The provision of free legal services to those unable to pay reasonable fees is a moral imperative. Ensuring that the client who has sustained a serious injury is properly reintegrated back into community in a cost-effective way, is one way of providing free services for the client. Although most lawyers feel duty-bound to perform pro bono work, something that is indeed encouraged by the Law Society, few know how to get started. For the personal injury lawyer, the simplest way is to look to one’s own clients. Few lawyers ever follow up with their clients to see if they require assistance after the case is completed. In fact, many former clients who may need assistance are reluctant to ask for help for fear of incurring additional expenses.
Since settlements, and even judgments, are typically the product of a balancing of interests, the result of compromises and the recognition of contingencies, seldom is a settlement sufficient to satisfy the rehabilitation, attendant care or other expenses to be incurred in a serious injury case. This is where the lawyer can help the most. Finding and negotiating for services, both government-based and private, can be a painstaking job for families already burdened with the care of a family member. However, the procurement of appropriate and cost-effective services may make the difference between a permanent or intractable disability and a restorative function. Few clients are prepared, motivated or able to spend their settlement monies on rehabilitation at the same level that they did prior to the settlement or judgment, for various reasons. They must be encouraged to continue with their rehabilitation and a financial plan should be prepared to ensure that there will be sufficient funds to do so. That is why the lawyer should assist in seeking out and obtaining government assistance for clients where possible, in order to preserve the settlement fund in a way that will prevent it from exhausting too early.
Given the continuing erosion of first party benefits, the notion of advocating for your client after the settlement or judgment has risen to the level of obligation. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer; however the continued involvement with one’s clients after settlement can be one of the most rewarding experiences in the life of a lawyer.
It is pointless to secure a just result for a client burdened with a serious injury if the client is unable to use the resources of money paid pursuant to a settlement or judgment to achieve the benefit of the goods and services which are the basis for the claim for compensation. If lawyers are expected to assist clients in obtaining access to justice, then this objective pre-supposes that at a practical level, the lawyer as advocate will ensure that the client obtains the best possible goods and services for the money made available. This noble and worthy cause is consistent with the values of Canadian society which promotes and protects the right to life and security of the person. These values include the right to reasonable and effective health care in a manner which promotes the dignity of all persons, but, in this context, especially the dignity of the disabled.
Bernard L. Gluckstein, Q.C., of Gluckstein Personal Injury Lawyers
with contributions from Dianne Henderson, David Lackman and Joe Colangelo
Article published in Law Times, June 9, 2014