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Does Your Lawyer Act for ICBC? Ask, You May Be Surprised By The Answer…
You’ve been injured in an accident. You don’t feel comfortable with how things have progressed with ICBC in your settlement negotiations so you decide to hire a lawyer. You find a qualified ICBC claims lawyer and off you go. You assume, reasobly so, that the lawyer is acting for you and not ICBC, right? Not always…
Lawyers typically have many clients. Many ICBC claims lawyers work both sides of the fence, that is, they represent injured people in advancing ICBC claims on some files and on other files they represent ICBC in defending against ICBC injury claims. Other lawyers restrict their practice to one side or the other.
Many people see lawyers working both sides of the fence as an inherent conflict of interest. They want their lawyer to represent injured people only, not insurance companies. Others like the idea that their lawyer also represents ICBC sometimes because perhaps such a lawyer has better insight into the defence tactics used by ICBC.
The problem, and the reason why I write this post, is that sometimes the potential conflict of interest is much worse than simply having a lawyer who works both sides of the fence. It is a problem of a lack of informed consent.
ICBC has contracted with many law-firms in BC for services in the defence of motor vehicle accident claims. ICBC requires some of these firms to sign an agreement called the Strategic Alliance Agreement (SAA).
Under the SAA, law firms whose lawyers are retained to act for ICBC are not permitted, when representing a plaintiff on another file, to sue ICBC for bad faith or to seek punative, aggravated or exemplary damages against ICBC.
Specifically, the SAA states that “ICBC may impose penatlies against the firm…..(where) the firm, or any member of the legal team, in the performance of the legal services, fails to act in the best interests of ICBC or ICBC’s insureds…”
Also, that “members of the legal firms team will not directly or inderectly: commence or participate in claims or actions, or counsel or assist others in bringing claims or actions against ICBC which include allegations of bad faith, or claims for punitive, aggravated or exemplary damages.”
What a conflict of interest!
The Law Society of BC (the institution that governs lawyers in BC) has held that it is ok for a lawyer who represents ICBC and who is bound by the terms of the SAA to also act against ICBC in another claim. HOWEVER, clients need to be advised about this potential conflict of interest. Sepcifcially, “A lawyer (bound by the SAA) may properly act against ICBC for clients whose cases fall outside of the restrictions. However, a lawyer acting in these circumstances MUST ADVISE THESE CLIENTS OF THE LAWYER’S RELATIONSHIP WITH ICBC AND THE IMLICATIONS OF THE RESTRICTIONS THE LAWYER IS UNDER.
It is all about informed consent. There is nothing wrong in hiring a lawyer to represent you who has signed the SAA but you are entitled to know about these restrictions. If you know about these restricitons you may not want to hire such a lawyer and instead retain an icbc claims lawyer who is not bound by any contractual restrictions with ICBC. Ask your lawyer if he signed the SAA, you may be surprised by the answer.
If your lawyer signed the SAA and did not tell you this up front, you were deprived of an opprotunity to make an informed decision. If this occurred you may want to ask yourself why your lawyer kept this information from you…?
Do you need to speak with an ICBC Claims Lawyer? Contact Erik Magraken for a free consulation.
Tags: conflict of interest, icbc, icbc claim settlement, icbc claims lawyer, settlement negotiations
This site is created by MacIsaac & Company, a British Columbia Personal Injury Lawfirm. This website is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC).This web site is made possible through funding provided by the British Columbia law firm MacIsaac and Company. bc-injury-law.com is designed to empower individuals to better understand their ICBC Claim and the process involved in dealing with ICBC. This web site is offered for information only and is not claim-specific legal advice. Use of the site and sending or receiving information through it does not establish a solicitor / client relationship. Links to and from this website do not state or imply a relationship between MacIsaac and Company and the linked entity.
November 3rd, 2008 at 5:10 pm
[…] have previously blogged about ICBC lawyers and ethics obligations and I write more on this […]
December 18th, 2008 at 11:18 pm
[…] settlement results, experience with your type of case, whether your lawyer sometimes acts for ICBC, whether your lawyer signed the SAA are all very important factors to consider when hiring an ICBC Injury Claims Lawyer but nothing can […]
February 16th, 2009 at 7:18 pm
[…] Is your ICBC Claims Lawyer also in partnership with ICBC? Â The anwer is sometimes yes and it is very important for any injured person looking to hire a lawyer for their ICBC Injury Claim to ask whether their lawyer has signed ICBC’s SAA. Â (for background see my previous article Does your Lawyer act fo ICBC, ask you may be surprised by the answer). […]
July 3rd, 2009 at 11:30 am
[…] revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured […]
November 14th, 2009 at 10:29 pm
[…] written about this topic before and below I reproduce my previous post on Injury Lawyers working both sides of the fence. […]
July 24th, 2010 at 8:42 pm
[…] of ’services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s […]
November 27th, 2011 at 7:28 am
Hello Erik…..I have been using your website for to help me being informed in my pending Civil Trial in the Supreme Court. I have found this very informative, and would like to comment on the SAA. Is it not true that most Lawyer’s, in pursuit of settlement, talk with and exchange information with ICBC on a continuous basis to try and have their clients “settle out of court”, to save the courts time and Lawyers monies? I do feel this is still a break in “fiduciary trust”, but happens all the time.
On a seperate manner, if I may, I would like to coment on your Financial Statement from ICBC, and would say that it would be obvious that when these Doctor’s are hired by ICBC to give un-biased Expert Reports for the Court’s, really if you see the amounts they are being paid would indicate unjust bias are they would be without a large compensation award,True or False. This is why ICBC will use these same Doctors over and over again.