Law Times

Law Times • November 27, 2017 Page 9 www.lawtimesnews.com Spotlight on personal injury law affects reputation BY SHANNON KARI For Law Times O ver the past year, the practices of the per- sonal injury profes- sion, especially in the areas of billing, referral fees and advertising, have come under significantly more public and regulatory scrutiny. e Law Society of Upper Canada has enacted a number of measures already and, at the next benchers meeting on Dec. 1, it is expected to approve the recom- mendations of a working group related to contingency fees. As well, there has been media cov- erage highlighting the practices of certain firms and the personal injury profession in general. Senior lawyers in the field say there is no doubt that the in- creased spotlight has impacted the reputation of personal injury firms in the eyes of the public. At the same time, they wel- come the reforms enacted by the LSUC and are calling for ramped-up enforcement of what they suggest is a small number of lawyers and firms acting in a manner that damages the per- sonal injury bar as a whole. "It is a handful of lawyers practising in the grey zone [that] has created problems for the rest of us," says Paul Harte, Ontario Trial Lawyers Association presi- dent in 2014 and a medical mal- practice lawyer. Harte played a leading role in creating an ethical code of con- duct in 2015 for members of the trial lawyers organization. However, he suggests that both the personal injury profes- sion as a whole in Ontario and the regulator should have been addressing these issues earlier. "To a certain extent, we have only ourselves to blame. We let the problem fester. At the same time, the law society has been playing catch-up," says Harte, who heads Harte Law in Rich- mond Hill. Ron Bohm, president-elect of the OTLA, says there is no doubt that the huge spike in ad- vertising in the personal injury field has an impact when an in- dividual needs to retain a per- sonal injury lawyer. "It is disheartening that so many people believe that those who mass advertise are the best," says Bohm, a partner at SBMB law in Richmond Hill, Ont. Most of the media cover- age this year has focused on the "outliers" of the profession, says Barbara Legate, who heads Leg- ate & Associates in London, Ont. ese outliers have had a signifi- cant impact on the rest of the per- sonal injury bar, she suggests. "ey make it difficult for the rest of us, who are not in the re- ferral business but in the business of practicing law," says Legate, also a former OTLA president. Firms that are not primarily litigators and may refer a case to another lawyer at a certain stage are not the problem, says Harte. "If a firm does not want to take it to trial, that is fine. e law society, though, has to crack down on firms that are effective- ly law brokerages," he says. Many of the measures that the LSUC working group has been addressing since it was formed in the spring of 2016 are aimed at curbing some of the is- sues raised by personal injury lawyers and also reported on in the media. In February, benchers ap- proved amendments to the ad- vertising rules for lawyers in Ontario. e changes include guide- lines on what legal awards may be used for marketing purposes. As well, lawyers and parale- gals are not permitted to adver- tise for work that they are not competent to perform or do not intend to do. is spring, the law society also adopted measures to put a cap on referral fees. ey are now limited to 15 per cent of the first $50,000 in legal fees and five per cent of any fees above that total. e maximum referral fee is capped at $25,000. Upfront referral fees, charged before any settlement is reached in a case, have been prohibited. As well, there are requirements to use a standardized form and to provide the client with a choice of referrals. Bohm says he has some sym- pathy for the LSUC, which has been criticized for not moving more quickly against lawyers who engage in misleading advertising. "To be fair to the law society, the whole concept of advertising is a bit new to them. ey are now trying to bring in more transpar- ency with the new rules, but they have to enforce them," Bohm says. Harte agrees that the regu- lator of the legal profession in Ontario needs to be more pro- active in enforcing the Rules of Professional Conduct that apply to marketing. "e law society can do more to regulate misleading advertis- ing," he says. To date, the LSUC has initi- ated disciplinary proceedings against at least two personal injury lawyers over marketing practices, since the new rules were enacted. e notice of application in both cases was filed earlier this fall. Clearer rules on what kind of advertising is permissible is also welcomed by Legate. "I would be happy if it could be reined in. It is too bad there is not some way you can legis- late taste," she adds. One of the advertising changes may have "unintended consequences," though, she says. e working group has rec- ommended that the maximum contingency fee percentage charged by a lawyer or firm must be posted on its website or con- veyed to a possible client during the first meeting. "I am not shy about my con- tingency fee," Legate explains. "But I represent disabled chil- dren, the biggest risk cases. If I lose, I lose big. If I win, the fee is approved by the court," she says. In focusing on higher-risk litigation, Legate says her con- tingency fee percentage may be higher than that of some of her colleagues. Her concern is the require- ment to post the percentage on the firm's website could have a negative impact in a civil jury trial. "e first thing a juror is go- ing to do is go to the website" without understanding why the fee is higher, says Legate. For personal injury lawyers who conduct jury trials, there is a widespread belief that the negative publicity about the pro- fession has had an impact on the odds of a successful outcome for the client in these cases. "ere is little doubt jurors' perceptions about injured indi- viduals and their lawyers is at an all-time low," says Bohm. "e perception is that the client is looking for a lottery win," he adds. Some work with focus groups confirms this im- pression, says Harte. "e jury pool has been taint- ed by these stories," he says. Somewhat ironically, the per- sonal injury lawyers and clients facing the backlash are those who regularly try cases in court and are not necessarily mass ad- vertisers, Harte notes. Both the LSUC and the per- sonal injury bar have to contin- ue to work together to address consumer protection concerns, says Harte. As well, he says another mea- sure that would be helpful is the creation of a new specialist des- ignation in the field of personal injury law. ese designations are awarded by the LSUC to lawyers who have met established stan- dards of knowledge and experi- ence in a specific area of the law. e code of conduct is another one of the steps that the OTLA as an organization has taken to try to ensure best practices by personal injury lawyers and to counteract any negative impression in the general public, says Bohm. "It has had a great impact. Most personal injury lawyers want to be held to a high stan- dard," he adds. LT FOCUS Ron Bohm says there is no doubt that the huge spike in advertising in the personal injury field has an impact when an individ- ual needs to retain a personal injury lawyer. Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. Unparalleled expertise from our award-winning national team of experts CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 ✔ More than 2,000 medical malpractice, personal injury and class action cases. ✔ More than 300 lawyer clients assisted. ✔ Direct access to hundreds of specialists from all areas of healthcare expertise. ✔ A top provider of cost of care reports for your most catastrophically injured clients. Since 2001, we've become a leader in Expert Witness Services in Canada. ntitled-4 1 2017-10-24 2:41 PM LawTimesNews.com Fresh Ontario legal news and analysis available on any device. Get More Online

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