Lawyers scramble for Native clients

By on January 1, 1999

Some lawyers may be using questionable tactics in their rush to get a piece of the legal action on Native residential schools, charges one of their own.

Merrilee Rasmussen of Regina says one of her Native clients was upset to receive an unsolicited letter from a law firm suggesting that by signing with them she could be in line for a lucrative settlement. The woman, who attended a residential school and is being represented by Ms. Rasmussen on that issue, was annoyed her name was discovered by this firm and felt her privacy was invaded.

“By any standards, this has gone beyond the pale,” Ms. Rasmussen said. “It’s improper to solicit by direct mail.”

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The firm – whose name she refused to reveal – was offering a contingency agreement in which it would receive a percentage of any settlement. But this fact would likely not have been clear to anyone without a legal background, she said.

The letter appeared to be part of a mass mailing and Ms. Rasmussen expects the firm obtained a band list.

That lawyers are hoping to represent Natives suing over residential schools is not surprising. According to public accounts outlined by the National Post, the federal government has already paid out more than $20-million to aboriginals abused at residential schools.

[pullquote]So far, the money has gone only to victims of former residential school employees who have been convicted of sexual abuse, mostly in Saskatchewan at the Gordon Indian Residential School. The school was administered by the Anglican Church under the direction of the federal government.

Ms. Rasmus-sen represents a few Native clients at her small firm and has done other work for aboriginal bands. She was also critical of lawyers who try to drum up business at meetings held on reserves or by posting notices. It reinforces the view of lawyers as vultures, she said.

“In my view, it is not appropriate at all to do this kind of thing. I still believe the practice of law is a profession, not a business.”

Ms. Rasmussen said she views the residential school issue as more of a social problem than a legal problem to be solved through litigation. The large volume of claims suggests there must be another way to address the issue, she said.

“(Litigation) is time-consuming, expensive and extremely adversarial,” she said. “It’s a horrible thing to have to put people through.”

But there is another side to Ms. Rasmussen’s concerns, says Grace Permaul, who chairs the aboriginal law section for the Canadian Bar Association – Ontario.

“In no way do I think it’s acceptable to profit off aboriginal people through improper solicitation,” Ms. Permaul said. “On the other hand, aboriginals should have access to the best lawyers.” In the past, Natives have often not been properly represented and have used lawyers they know, say through family law, for bigger cases such as land claims, she said.

Aboriginals also need to be notified in some way if they are entitled to share in the proceeds of a class action. Band councils may need to approach their members and ask them if they wish their names given out, she suggested.

Ms. Permaul acknowledges lawyers have been competing for Native business when it comes to land claims, casinos and residential schools. “There seems to be a huge windfall for the firm,” she said.

Bar associations might need to instruct lawyers going after Native business that they ought to have some sort of formal training or education in aboriginal issues, she said. The Ontario bar is planning a March conference which will incorporate the advice of elders in the aboriginal community. “I hope lawyers wanting to do this sort of work will come,” she said.

Lawyers shouldn’t be seeking the business just for a large fee or retainer, Ms. Permaul said. They should be providing the best representation they can and treating their clients fairly. That means ensuring both sides have the same understanding of the terms being used.

“If a form letter is clearly designed to entice people into getting large sums of money but not explaining what is meant or what they will be giving up, it is unconscionable,” Ms. Permaul said.

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