Potential Claims Related to Serving Indigenous Clients

Author:Dan Pinnington
Date:February 01, 2016
 
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Last week’s post about Providing High Quality Service to Indigenous Clients discussed the breadth and complexity of “Aboriginal law.” To follow that with some strategies to avoid claims in this area of law, here is advice gathered from LAWPRO claims prevention specialists.

To avoid claims, lawyers need to know how they develop. What are the key areas of risk when practising Aboriginal law?

Communication errors:
As noted by all of the lawyers we’ve consulted, Indigenous people often have a perspective on the law that is radically different from that of non-Aboriginals. This creates a “culture gap” that becomes an additional challenge in the already-difficult process of building a relationship of mutual trust and understanding between lawyer and client.

Failing to build that trust and understanding opens lawyers up to a wide range of potential claims based on miscommunication, information gaps, lack of consent to legal steps taken, and failure to meet client expectations.

Prevention:

  • Listen at least as much as you speak.
  • Be aware of your own gaps in understanding.
  • Avoid making unfounded assumptions.
  • Maintain regular contact with the client and provide frequent updates.
  • Confirm all instructions and advice in writing.
  • Seek out high-quality cultural competence training.

Inadequate investigation errors:
failure to investigate all of the relevant facts of a matter can be related to communication problems, and to the tendency to make unfounded assumptions.

Prevention:

  • Follow the good communication strategies outlined above.
  • Schedule multiple interviews with a client if you anticipate that building trust will take time.
    Be aware that clients may avoid talking about matters that cause them stress or remind them of past traumas;
  • Exercise patience and offer alternatives (for example, ask whether the client would be more comfortable relating the facts to a support person, or putting them down in writing).
  • Carefully organize the information gathered so that nothing is overlooked.

Ineffective assistance:
a poor lawyer-client relationship, especially in criminal law matters, can give rise to appeals based on ineffective assistance by counsel, which can in turn lead to claims.

Prevention:

  • Take the time to build a relationship of mutual trust with a criminal law client: meet in person, in private, and with sufficient time to listen...

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