A recent article in the Toronto Star has thrust personal injury lawyers, and their billing and advertising practices, squarely into the spotlight. Liberal MPP Mike Colle’s private member’s bill, known as the Personal Injury and Accident Victims Protection Act, seeks to limit some of the more contentious practices of some personal injury lawyers. Diamond and Diamond, the firm which is the focus of the Star’s article, is taking an unusual step to push back against the bill, by hiring a PR firm to work on killing the bill before it becomes law.
Two important issues are raised by Colle’s bill, which would concern many people. One centers on the practice of “contingency fees”, commonly referred to by the phrase “we don’t get paid until you get paid” and variations thereof. Contingency fees are the common billing model for most personal injury files, in most personal injury offices (Woolcott Krashinsky LLP included). These fees are well-accepted within the rules of the practice of law. In fact, they serve an important function, which is why the Rules of Professional Conduct in Ontario (and other provinces) approve their use. They allow clients with potentially strong cases, but little money to pay a lawyer a hefty up-front retainer, an opportunity to pursue these cases, and pay their lawyers later, out of any eventual settlement they receive. While these fees are an accepted practice, they have been considered controversial in the past. However, personal injury lawyers accepting contingency fees are not permitted to collect the same fees twice, for example by collecting costs as well as the contingency fees, a practiced engaged in by some lawyers in violation of the rules.
Another concern raised by the bill is the advertising practices of some personal injury firms. Diamond and Diamond is featured prominently in the Star’s article as a firm that invests heavily in advertising, attracts personal injury clients through this advertising, and then farms these files out to other firms in exchange for often substantial fees. (For the record, Woolcott Krashinsky LLP does not engage in this practice, and represents all of our clients directly in-house, unless specific alternative arrangements are agreed upon with our clients.) Many personal injury clients come into the legal system confused, distressed, and in a state of profound crisis. They have often suffered debilitating injuries and many have never accessed the confusing world of civil litigation. With such vulnerable people, the fear of exploitation is very real.
The clear concern behind this private members bill is that large, wealthy personal injury firms are investing heavily in advertising in order to attract clients, not to do the work themselves, but to acquire files as if they were assets, only to sell that asset off to other firms. In hiring lobbyists to strike back at the bill, Diamond and Diamond is bringing out the big guns in response. In today’s legal landscape in Canada, where advertising practices are under careful scrutiny, it will be interesting to see how this story plays out.
You can read the full text of the article here:
Personal injury law firm Diamond & Diamond has hired a lobbyist to persuade politicians to kill a private member’s bill aimed at fixing a system critics call a “black hole” for accident victims.