Wednesday, 16 November 2011

Change is in the air, but could we do more?

Here’s a story that I only wish was apocryphal. Regrettably, it’s not. In fact, it’s the sort of conversation that we've probably all encountered, at some stage or another.

A group of lawyers from a personal injury firm were out for a drink. They had just attended a conference on the Jackson Review and the myriad of impending changes to civil litigation, not least in the fraught arena of costs. One might expect them to be rather preoccupied, given the impact the changes will bring on their livelihoods.

Not a bit of it. The group was sanguine to a man, ready to take on whatever came their way. It might have been possible to construe this as evidence of an admirable ability to adapt to change, to roll with the dice and serve the law and their clients come what may, were it not for what animated their equanimity. Which was, as one of them put it: ‘Who cares how the system changes? We’ll still find a way to make our money.’

Far-fetched? Sadly not. This is how some in the legal profession think. They’re not interested in their clients; all they care about is making as much money as possible. And they don’t mind if they bend the rules along the way.

This kind of lawyer is not confined to the personal injury sector, but arguably seems even worse when met in this environment. The idea, for example, of victim auctions – of lawyers bidding among themselves to secure the highest value personal injury cases, not because they care about the victim but because they see him or her as a cash cow – is not only anathema to right-thinking members of the profession but also unpalatable to anyone with a sense of morality.

What, though, can be done about this sort of thing? Yes, we need to continue to press the government to consider the full gamut of issues in, for example, its proposed (and welcome) ban on referral fees, and yes, we need to continue to press for legislative change where necessary. But I wonder if there’s more that we could do.

Perhaps it is time to reassert the professional standards and duties that come with the territory of being a legal practitioner. These seem to be too often ignored by those in the personal injury market.  Maybe if like-minded, honourable individuals who are committed to rooting out malpractice formed an alliance, we could do something about the blatant profiteering and corrupt practices that blight our industry?

If a campaigning body was established, it could set about achieving the following:
  • Deliver real market transparency – A significant portion of current industry practice deliberately confuses and dodges clarity. Consumers need to know the facts so that they can make decisions from a fully informed position.
  • Reign in blatant profiteering – There is a duty to avoid profiteering in every walk of life and this includes personal injury claims. Claims should not be seen as an opportunity to make money without any meaningful contribution being made to the service provided.
  • Stamp out conflicts of interest – Nothing must stand in the way of delivering in the interests of the client. Too much is currently done for the benefit of business and not the individual. This situation must cease.
  • Commissions should be returned – The current merry-go-round of commissions must stop. Any money paid by a referring party should be returned to the individual.
  • Ban referral fees in all their guises – Consumers should have a choice as to who they instruct. While a decision has been taken in principle to ban referral fees, we must campaign to ensure that legislation truly delivers its objective.

What do you think? Is there mileage in forming an alliance to tackle these challenges? Please post a comment here, or, if you prefer, send me your thoughts via e-mail at

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