The Law Society of BC’s Winter Benchers’ Bulletin is now out and available here. As always there are many good tips and reminders to help keep out of ethical hot water.
Among the various tips is a reminder to litigators that encouraging reasonable settlement is a must. Specifically the Law Society published the following reminder:
BC CODE RULE 2.02(4) – ENCOURAGING COMPROMISE OR SETTLEMENT A MUST
Chapter 8, Rule 1(a) of the Handbook prohibits lawyers from instituting or prosecuting proceedings that, although legal in themselves, are clearly motivated by malice on the client’s part and are brought solely for the purpose of injuring another party. Rule 4.01(2)(a) is the counterpart to Rule 1(a) in the new BC Code. In addition, BC Code Rule 2.02(4) requires lawyers to encourage clients to compromise or settle a dispute on a reasonable basis. Encouraging Compromise or Settlement 2.02(4) A lawyer must advise and encourage a client to compromise or settle a dispute whenever it is possible to do so on a reasonable basis and must discourage the client from commencing or continuing useless legal proceedings.
This led me to think about the Low Velocity Impact defence used in response to personal injury lawsuits. I’ve discussed this many times. In short the LVI Defence is an argument that a Plaintiff suffered no injury due to the minor nature of vehicle damage following collision.
This defence has been rejected numerous times in British Columbia with Courts stating that it has “no scientific justification“, a defence that does not follow “logic or legal principle” and is a “myth“. Given these findings is it fair to conclude the LVI Defence leads to a “useless legal proceeding“? Is it unethical for counsel to run a trial based solely on the LVI defence? As always, feedback and comments are welcome.
A Hearing Report was released last week by the Law Society of BC finding that a lawyer committed “professional misconduct” for failing to inquire in a timely fashion into an overpayment from ICBC following the settlement of 4 personal injury claims.
In last week’s case the lawyer represented four clients who sustained injuries in a 2006 collision. A settlement was reached. Apparently an oversight ocurred and ICBC provided a settlement cheque for $10,948 over and above the settlement figure.
During a routine compliance trust audit several months following the settlement, the Law Society’s Trust Assurance Department found that the lawyer “still had $10,948 in his trust account”. The lawyer apparently had handwritten notes of his discussion with his clients around the time of settlement indicating that “the funds were to be kept until an apparent limitation date expired“.
Ultimatley a hearing was held investigating this matter. The Hearing Report indicates that the lawyer explained that “the difference between the cheque received in the amount of $45,264 and the settlement agreed upon in the amount of $32,000 plus disbursements that ICBC agreed to pay in the amount of $2,316, was paid for bad faith” but since ICBC would not “go on the record for paying money out for bad faith” he assumed they would be receiving a cheque that included money for bad faith but not be designated as such.
The Law Society rejected this explanation and cited the lawyer for “professional misconduct” finding that his behaviour was a “marked departure from the conduct expected of a lawyer in such circumstances“. In coming to this conclusion the Law Society provided the following sensible advice to lawyers who receive an overpayment following the settlement of a personal injury claim:  This Panel has concluded that the Respondent, when he received the cheque from ICBC, knew the sum received was in excess of the settlement and, as a result, he should have taken an appropriate step to clarify what appeared to be an error. Instead, it was not until well after the receipt of the funds that he communicated with ICBC. That communication was substantially later than it should have been. While it appears that the Respondent may have had conflicting instructions from his clients with respect to whether or not to communicate with ICBC, he should have simply and clearly posed the question to ICBC as to whether or not they had made an error in calculating the amount of money paid. If he felt that he was acting contrary to his clients’ instructions, he should have advised them to obtain separate counsel. Instead, he did not act until the Law Society commenced its investigation following the audit. While he promptly communicated with the clients on July 3, 2008 with respect to the fact that the funds were held in trust as required by the Law Society Rules, he did not communicate with ICBC until well after the Law Society questioned him on several occasions about why he had not contacted ICBC. At the same time, when he did contact ICBC, he did not explain in a clear and unequivocal way what the issue was, which further compounded the problems.  In this Panel’s view, the failure of the Respondent to make the obviously necessary inquiry was questionable conduct casting doubt on the Respondent’s competence and also reflecting adversely on the integrity of the legal profession. Given the foregoing, the Panel has concluded that the Respondent committed professional misconduct as this is a marked departure from the conduct expected of a lawyer in such circumstances.
As previously discussed, one of the biggest changes in the New BC Supreme Court Civil Rules is an overhaul to the requirements for admissibility of expert opinions. These changes have created some tension in personal injury claims.
In no area of law are expert opinions used more frequently than in personal injury lawsuits. The opinions of treating physicians are often crucial in the success of a personal injury claim. In fact, if a plaintiff fails to call their own doctor in support of their case the Court could draw an ‘adverse inference‘ and assume the doctor will say something negative.
One of the changes imposed by the New Rules is a requirement that experts certify that their duty is to “assist the court and not to be an advocate for any party“. In reality, this requirement always existed although it was not specifically spelled out in the former rules. Despite this, some treating physicians have been concerned with this new explicit requirement and refuse to provide expert opinions on the basis that they feel they are ethically required to be advocates for their patients.
Fortunately, the BC College of Physicians and Surgeons has squarely addressed this concern and informed their members that the New Rules of Court are not inconsistent with doctors duties to their patients. Specifically, in the September 2010 issue of the College’s quarterly publication physicians were advised as follows: The College does not view the New BC Supreme Court Civil Rules to be in conflict with the Canadian Medical Association Code of Ethics, including the fundamental responsibility to consider first the well being of the patient. With respect to the duty imposed under Rule 11-2 the College has always expected physicians providing expert reports to be fair, objective, and provide opinions that are supported by available information. This expectation applies equally to physicians whether they are appointed by the plaintiff, defence, jointly or by the Court. Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports. The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.
The truth of the matter is that treating doctors should be advocates for their patients health. They should not be advocates for their patients personal injury claims or other legal matters. The above clarification will hopefully assist physicians who have felt conflicted from providing opinions under the New Rules of Court.
If you would like further information or require assistance, please get in touch.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
This blog is authored by personal injury and ICBC Claims lawyer Erik Magraken. Use of the site and sending or receiving information through it does not establish a solicitor/client relationship. The views expressed and the content provided on this blog is for nonprofit educational purposes. It is not, and is not intended to be, legal advice on any specific set of facts. The use of this website does not create a solicitor-client (attorney-client) relationship. If you require legal advice, you should contact a lawyer directly.