And now:Ish <[EMAIL PROTECTED]> writes:
From: "chris" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Subject: LAWYERS SWOOP TO CASH IN ON NATIVE CLAIMS
Date: Sat, 10 Jul 1999 11:48:17 -0400
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LAWYERS SWOOP TO CASH IN ON NATIVE CLAIMS
Leaders worry the suffering of residential-school victims is
exploited by fees as high as 40 per cent of awards
ERIN ANDERSSEN
The Globe and Mail
Saturday, July 10, 1999
The lawyers came to the Peigan reserve in the new year, pitching justice and
promising money.
Word had spread in the Alberta community before they arrived, and so about
50 people gathered in the rented hall to hear what they had to say. The
strangers were dressed in weekend clothes as if to woo a crowd not warmed by
white men in suits.
They spoke for a while, about suffering and lawsuits, and then they set to
work signing people up. A lawyer claimed each corner of the hall, and one by
one, the people would sit before them and tell how they'd been slapped and
punched and fondled in a dreadful institution so many years ago.
They scrawled their names on a contract, agreeing to pay as much as 40 per
cent of whatever their suffering was deemed worth by the courts, and the
lawyers packed up and went away.
Residential-school claims have become a burgeoning industry for Canada's
legal profession, with a lot of money to be made.
"To bring this all up about the residential schools is so hard," said
Elizabeth Crow Flag, a member of the Peigan First Nation who lived in one of
the schools for most of her childhood, and attended part of the meeting.
"There are all kinds of lawyers jumping into this. They're going to make all
kinds of money off us."
As cases grow, Ottawa becomes increasingly anxious about its liability for
its role in the school system, which removed native children from their
homes and placed them in institutions where many endured physical and sexual
abuse.
The federal government already estimates that current lawsuits -- which
total more than 3,330, divided among about two dozen lawyers -- could cost
$330-million or an average of $100,000 each, although that is assuming they
are settled out of court, and does not account for former students who have
yet to come forward.
But there is a distasteful flavour, perhaps unavoidable, to the legal
business of residential-school abuse.
Since most of their clients cannot afford to pay hourly fees, lawyers take
these cases on contingency, getting a percentage of the final award. In some
provinces, the lawyer's cut if the claim goes to trial can be as hefty as 45
per cent -- the subject of much grumbling in native communities. To get
those contracts, lawyer are recruiting new clients through public meetings,
personal phone calls, even ads in the yellow pages. And native leaders are
raising concerns that the system might be exploiting their people yet again.
Late last year, Phil Fontaine, National Chief of the Assembly of First
Nations, fired off a letter to the country's law societies, objecting to the
heavy-handed tactics of some lawyers.
Last month, the Law Society of Saskatchewan passed a new rule that prevents
its members from holding meetings in communities unless they are invited by
prospective clients, and requires them to mark all documents sent by mail to
solicit business as "advertising material." The regulation, a specific
reaction to the residential-school issue, refers to clients in "weakened
states" and forbids lawyers to settle fee arrangements until they meet with
each client.
In fact, the Law Society of Saskatchewan is investigating a complaint
against a team of lawyers who held a meeting on a southern British Columbia
reserve for former students of residential schools from several communities,
including the Pavilion First Nation.
The law society appointed an investigation committee -- the step preceding
any ultimate formal charge -- after receiving the complaint from B.C.'s
Provincial Residential School Project. The native organization complained to
the law society that the two Saskatchewan lawyers -- Tim Turple and Mike
Mantyka, of the Merchant Law Group -- travelled to the reserve to "recruit
victims" and "make money" at their expense, without taking into account the
trauma that people may suffer in recounting their experiences.
"The vultures are coming. They know where the money is," said Rick Alec, a
counsellor on the Pavilion reserve and a former residential-school student,
who forwarded the complaint to the residential-school project. He said
people are recounting their years at the institutions for the first time to
lawyers -- not therapists -- and are not being informed fully about the
stress of testifying at trial.
"People talk about getting rich off it; they're not told what they have to
do to get it. The bottom line is: I want your name on this contract." He
added later: "My people are not ready for it. There's about five generations
of hurt here."
But Mr. Turple said his firm, which represents about 3,000 former students
of the schools, was responding to an invitation from an elder in the
community. He said the reserve had counsellors at the meeting. And he said
that he and Mr. Mantyka participated in a sweat lodge afterward.
"We don't drive around to reserves recruiting people," said Mr. Turple, who
did not want to comment specifically on the complaint. "We're extremely
sensitive to the pain people have experienced. Wherever possible, when court
action opens up old wounds, those affected must have the benefit of
counselling."
Still, other lawyers recognize the dangerous ground, particularly with the
numbers of claims growing. "Usually lawyers don't get big cases in bunches,"
said David Paterson, one of the lawyers representing former
residential-school students in a case in Port Alberni, B.C. "But if you have
a slew of major cases, and clients who are inexpert in dealing with lawyers,
then the potential [for problems] is there. I've heard enough stories to
believe that there are problems out there."
Maggie Hodgson, the residential-school policy adviser for the AFN, has her
own stories. She remembers the day that a sobbing middle-aged native man
knocked on the door of her Edmonton home. He had just come from a lawyer's
lobby, where he had been asked to fill out a questionnaire recounting the
abuse he had experienced. Then he was sent away, without even talking to the
lawyer he had just hired.
"He passed in the questionnaire and that was it," Ms. Hodgson said. "He was
writing about sexual abuse and it was very frightening to put it down on
paper, particularly when you haven't talked about it for 30 years."
Ms. Hodgson, who is working with the federal government on a program to
resolve claims out of court, hears regular concerns from communities across
Western Canada about exorbitant contingency fees, and the meetings lawyers
have been holding -- which she considers a "feeding frenzy" on reserves.
"Lawyers have 150 to 200 people fill out a questionnaire without any care or
concern," Ms. Hodgson said. "People die that way. Or they get back to
drinking after they've been sober for a long time."
The meetings occasionally occur in communities in which a local lawyer
already represents many residents. Some victims who have already signed with
the outside lawyers have been asked to speak before a crowd of prospective
clients. "That's like using the victims to market their firm," Ms. Hodgson
said. "It's like, 'I have a barbecue and I can testify it's a top-line
barbecue,' except that they're doing it to people who are very vulnerable."
Native leaders have linked a number of suicides on reserves in the past few
years to the stress of discussing abuse for civil suits or criminal cases.
Marlon Watts is convinced that is why his brother died, just a few months
after he testified in the Port Alberni case. He was drinking heavily, Mr.
Watts says, and one night in October, he fell off the Nanaimo sea wall and
drowned.
"It was really tough for him," said Mr. Watts, who is also a plaintiff in
the case. "He'd never seen a therapist. I never heard my brother's own story
until that day in court."
Mr. Watts says he regrets going ahead with the lawsuit. People "don't
realize how serious this is," he said.
But the legal community has its own case to make. Many of the former
students live in remote communities, and lawyers say town-hall style
meetings are the best way to reach them, to let them know that they have the
right to sue over the abuse.
"We are trying to get the message to these people," said Tony Merchant, who
adds that his firm often visits reserves by invitation from the band
council. "It's the only way they're going to get the message. They're not
getting it from newspapers and the electronic media."
The work is complicated by the fact that many of the potential clients are
poorly educated -- some speak little English or do not read it -- and are
unfamiliar with the legal system.
When faced with complaints about high contingency fees, lawyers such as Mr.
Merchant, who criticizes native leaders for not making an issue of
residential schools years ago, point out that if they did not take chances
on these cases, the victims would never see justice. A 35 or 40-per-cent
contingency fee, they say, is fairly average in lawsuits over automobile
accidents.
Many reserves are organizing their own meetings with lawyers to educate
their people. But more natives working with former residential-school
students believe that lawyers should not enter the picture until the person
concerned has dealt with the past, through therapy or healing circles.
"You walk to the darkest side of your life," Mr. Alec said, "and you just
hope you come back in one piece. We're great survivors. Now it's time for us
to learn how to live."
Reprinted under the fair use http://www4.law.cornell.edu/uscode/17/107.html
doctrine of international copyright law.
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Tsonkwadiyonrat (We are ONE Spirit)
Unenh onhwa' Awayaton
http://www.tdi.net/ishgooda/
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