Some form of legal representation is an excellent idea when negotiating with institutions who’ve harmed you. There are, however, certain difficulties that may arise. While the majority of the legal profession may act completely ethically, unfortunately there will always be rogue operators who do not necessarily act in the best interests of their clients in dealing with institutions responsible for child abuse.
Lawyers owe a duty of care to their clients. While there are many fine lawyers who act for people engaging in compensation negotiations with institutions, sadly, not all act in ideal ways. Over the years, I’ve heard of instances in which lawyers / law firms have engaged in conduct such as:
- ‘Talking big’ at the beginning of the relationship, before a retainer agreement is signed, and then pursuing the client for fees when the client refuses to accept an offer from an institution that is substantially lower than the sort of outcome discussed in the ‘honeymoon period’ in which the lawyer is signing the client up. In some cases, clients have even ended up worse off than they were before they signed up the lawyer because the lawyer has not been able to achieve a better outcome than what the institution initially offered, but the client has ended up with less because they have to pay the lawyer’s fees out of the settlement!
- Consciously or unconsciously acting more in the interests of the institution than the client.
- Conscious conduct may include receiving financial payments from institutions in out-of-court negotiations to convince clients that the maximum payout achievable is what the institution is offering, when in fact a court settlement may well lead to a far higher payout.
- Unconscious conduct may occur when a lawyer has had or intends to have ongoing dealings with an institution, and is less than ideally vigorous in pursuance of their client’s interests. This may be because at the back of their mind is a desire to maintain relatively harmonious relationships with the institution and its legal representatives to facilitate easier dealings in the future. This problem may only become apparent when the client becomes more assertive with the lawyer when resisting acceptance of a low payout from an institution and is pressured into accepting it.
- Engaging in conduct designed to manipulate the client into accepting a low offer from an institution. For example, years ago, I spoke with a man who’d engaged a solicitor on ‘spec’. This man was in a dire financial situation. The solicitor lent him money from her own reserves to ‘tide him over’ until a satisfactory settlement was obtained from the institution. When a ridiculously low offer was made by the institution (much lower than anticipated) and this man refused to accept it, the solicitor became very pushy about the man accepting the offer so she could be paid back. He ended up accepting it because he valued his good name (he was in business) and was afraid that she would speak negatively about him as a person who reneged on his debts.
When engaging a lawyer or law firm, you should be aware of your rights and keep your eyes wide open. Don’t be afraid to ask questions. Don’t be afraid to talk about what you expect from your lawyer. Consult widely and speak to a number of lawyers before settling upon one. Talk to other people who’ve had dealings with the lawyer or law firm you’re considering retaining and see what they have to say about outcomes received. Examine the retainer agreement you’re given and if you don’t understand anything in it, or want to change something in it, don’t be afraid to raise this with the lawyer. Resistance to a reasonable request may be an early warning sign that you’re not going to have a good outcome with this lawyer or firm.
Remember: Your lawyer / law firm is there to act in your best interests; not their own, and not those of others!
Finally, if you encounter a problem of any of the types outlined above, or just want a bit of guidance, there are bodies / resources that exist to help you. For more information, see these links:
- New South Wales:
- Western Australia:
- South Australia:
- Northern Territory:
- The Australian Capital Territory:
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