ItChy BitCy – some curse her, but I love the Lady - Alcyonenews

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Posted January 11, 2019

ItChy BitCy – some curse her, but I love the Lady

In the Feb 23  2018, issue of the Marketplace and on other occasions, I have written  about ICBC.  It was the Attorney General David Eby who fired me up by revealing that ICBC was a “dumpster in flames”. On March 9, 2018 I wrote again about it, irked by Justice Warren Milman awarding a cool one $Million to a “lucky” traffic victim; “lucky” not only for the award, but also because  he survived the accident  and had fully recovered when Judge Millman ordered the award. Good for the recipient, the $Million windfall was hard for us to pay.

By December Eby came again with the bad news that ICBC was in the hole for almost a $Billion, for the first three quarters of 2018 and that would put ICBC in the hole for $1.3Billion for the whole of 2018. In numerals the figure reads $1,300,000,000; yes 1,300 Millions of Dollars.  It translates to an indebtness of all of us, citizens of BC, including infants and octogenarians  of over $250, each, this  being the equivalent of five bottles of single malt. On December 18, ICBC announced it had secured “preliminary” approval to raise rates by 6.3%. The news was cleverly timed mid-Holiday.

I am not out to discuss Judge Milman;  probably he did what he thought was right. Yet while $1M awards may not be numerous, I would guess that  higher-than-fair awards are frequent,  making the cumulative ICBC excessive-pay-out enormous.  We cannot assess the resulting ICBC bleeding because we have not the information necessary for the task, and this is sad. However, Judge Milman, inadvertently I presume, illuminated a substantial ICBC problem that we should fix to help ICBC recover.

Many lawyers work on what is cryptically called  “contingency” payment for their services.  This means that the lawyer’s pay is a percentage of what the Lawyer “wins” from ICBC for his client. It ranges from 30 to 50  percent of what the court “determines” to be due to the auto-0accident victim, or is “negotiated” out of Court (but under the threat of it) with ICBC.  It  is not unlike salespeople working on “commission”, except that the Lawyer’s  percentage is a multiple to that of other salespeople.

I have yet to see an  argument that the deprivation of victims of so much due compensation, as the Lawyers take, is civilized or “just”. Characteristically,  “contingent” work has elicited the characterization of “ambulance chasers” for some lawyers, which  is unflattering to a profession having a noble calling.

The “sharing of the take” places lawyers in a strong Conflict of Interest situation. This while free societies are unwilling to tolerate even the mere perception of Conflict of Interest. That the lawyers are “officers of the court” adds enormous dimensions of impropriety to some of them setting themselves silently in conflict of interest.

Of course, no one has argued that Lawyers are exempt from the “power corrupts” phenomenon or that they are resistant, save being immune, to the temptation inherent to conflict of interest. Indeed, the Lawyers are fully aware that this practice in damnable, this being manifested by skillfully avoiding calling it “lawyering by commission” and supplanting  “contingency” for it.  Euphemisms aside, their awareness of wrongdoing is the reason for which Lawyers who do it hide it from the courts and society behind the impermeable curtain of “lawyer – client privileged information”. Humbug really.

There is no conceivable harm to the cause of  justice from declassifying “contingency” payments.  It is a fundamental principle that justice must be meted out publicly, for unless justice is seen done, likely it is not done. Power corrupts, lawyers being not exempt.

Can we do something about it? “Contingency Lawyering”  is not an inescapable law of nature, we do not have to grin and bear it.  I believe that it should be outlawed by the Law Society, but that is another story. In the narrower domain of ICBC, I call on  AG Eby to consider legislating a ban on this huge grab of a victim’s entitlement by the Lawyers. This in addition to instituting the elective “no fault settlement” of ICBC claims. This incentive to sharp lawyering and the turning of a blind eye to the huge bite from the victim’s compensation is cruel and unjust and accordingly alien to the justice system of a free society.  

Virtue is not universally innate. Where it lacks , we must impose it, for the alternative is not pleasant to contemplate.

Tom V

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