Lawyers who act for and against ICBC in personal injury claims
When a plaintiff makes a tort claim for compensation a lawsuit is generally filed against another driver, or drivers, who the plaintiff says is responsible for causing the accident. If the defendant was driving a vehicle insured in British Columbia ICBC will appoint a lawyer to defend the claim being brought by the plaintiff. In some cases ICBC may appoint a lawyer at a private law firm that handles both plaintiff and defence work to represent the defendant. In other words, there are some lawyers who represent both injured persons advancing claims for injury as well as being hired (on other files) by ICBC to defend drivers who are sued for causing accidents.
The contract that ICBC has with law firms that do both plaintiff and defence work typically places limits on the type of allegations that can be advanced by that law firm when representing plaintiffs. In particular, those law firms are generally prohibited frrom alleging bad faith by ICBC in handling claims.
Issues often arise when lawyers want to act for and against a particular client and in the motor vehicle accident context ICBC would be the client a law firm may act both for and against, albeit on different files. (Note that a single law firm would never be permitted to act on both sides of a single file i.e. both for ICBC and for a plaintiff in respect of the same accident). The Law Society of British Columbia establishes rules that define when lawyers can act both for and against clients and in June 1999 the Law Society of British Columbia’s Ethics Committee gave an opinion on the propriety of lawyers acting for and against ICBC. The following are excerpts of the opinion given by the Ethics Committee (as summarized in Jack S. Olsen, Acting for and Against ICBC (CLE BC: June, 2006)):
It was the Committee’s view that a lawyer who accepts the conditions required by ICBC [as stated in the contract between ICBC and the law firm] may properly act against ICBC for clients whose cases do not fall within the restrictions the lawyer has accepted. However, a lawyer acting in these circumstances must advise the client of the lawyer’s relationship with ICBC, the restrictions the lawyer is under in acting for parties adverse in interest to ICBC and the implications of those restrictions.
It is always proper for a lawyer to advise a potential client to seek legal
advice from another lawyer, even where the lawyer is prevented by a [contract] with ICBC from advising or acting for that client.
(Jack S. Olsen, Acting for and Against ICBC (CLE BC: June, 2006)).
Although, as indicated by the above, it is permissible for law firms to represent both ICBC and plaintiffs on different claims, problems can arise when they do so. In the case of Slater Vecchio LLP v. Cashman, 2012 BCSC 830 the plaintiff hired a law firm that did both plaintiff and defence work because it was not thought at the outset that it would be necessary to allege bad faith by ICBC, but that changed as the case proceeded:
ICBC had refused to offer the defendants’ $1 million policy limits in the tort action and Cashman [the plaintiff] wanted to proceed to trial, obtain a judgment in excess of that amount and pursue a bad faith claim against ICBC. Because the law firm of Brown Benson, and Mr. Deering in particular, also acted for ICBC on certain defence matters, their contract with ICBC precluded them from acting for a client in a bad faith claim against ICBC.
(Slater Vecchio LLP v. Cashman, 2012 BCSC 830 at para. 17).
Indeed, in that case the plaintiff initially retained Mr. Deering of the firm of Brown Benson because they also did defence work and the plaintiff hoped that those lawyers would be able to influence ICBC to his advantage:
Mr. Cashman was also dissatisfied that Mr. Deering had not used his relationships with ICBC as promised to go above the head of the adjuster on his file to try and get the policy limits, which was the main reason why Cashman retained Deering in the first place.
(Slater Vecchio LLP v. Cashman, 2012 BCSC 830 at para. 18).
A plaintiff and a lawyer agreeing to a retainer because it is thought that the lawyer may be able to take advantage of a special relationship with ICBC may raise ethical questions of its own, but regardless of what occurred in that case plaintiffs should not expect to obtain better results by hiring a lawyer who also does ICBC defence work, and indeed hiring a lawyer who also does defence work may interfere with ongoing litigation of the plaintiff’s case, like occurred in Slater Vecchio LLP v. Cashman, 2012 BCSC 830.
There may also be a concern that a lawyer who does ICBC defence work may not be as firm in pursuing the best possible result for a plaintiff for fear that doing so may harm that lawyer’s relationship with ICBC and result in the lawyer not receiving ongoing ICBC defence work.
The foregoing indicates that although lawyers who do ICBC defence work may represent plaintiff’s advancing injury claims, hiring a lawyer who also does ICBC defence work can create complications and raise questions about the willingness of the lawyer to firmly pursue the best possible result for a plaintiff. For these reasons plaintiffs may prefer to hire lawyers who only represent plaintiffs in personal injury claims.
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