Widespread but unnecessary reliance on lawyers

Posted by on July 14, 2013 in Articles, Facts, research, analysis
Click to see a larger image

Click to see a larger image

Generally, legal representation is not necessary for claiming Work Injury Compensation. MOM will deal with the relevant parties to process the claim, and any party can approach MOM for advice or assistance on the claims procedures. However, if the claimant wants to assess whether to claim compensation under the WICA or under common law, he may wish to seek legal advice.

The above quote is from the Ministry of Manpower’s booklet about work injury compensation. MOM does assist workers claiming compensation, and usually the process is quite smooth and efficient.

For the injured workers at the Cuff Road Project[1], the reality is quite different. All but a handful of men in the meal project have retained lawyers to assist them in claiming compensation.

This is a curious situation.  Even though most of those who visit the Cuff Road Project have lawyers, many of these same workers are still spending a great deal of time with Cuff Road volunteers. They are seeking the volunteers’ help on the details of their claims compensation process, on what they should be doing, and on why it is taking so long.

The table below shows how widespread the practice of engaging lawyers is. Out of 483 injured workers we saw March to May 2013 at our Cuff Road Project, 456 (94.5%) had already engaged lawyers by the time they came to us.

lawyers_common

The Cuff Road Project personnel provide advice daily on a voluntary basis, and spend many hours each week doing this.  If all of the lawyers who later end up claiming a share of the worker’s compensation claim are carrying their fair share of the work on each of these cases, one wonders why so many of the men are spending so much time at the Cuff Road Project inquiring about these matters.

TWC2’s Cuff Road Project is here to help these migrant workers.  So our concerns are not with the effort it takes to provide this advice and counselling. Rather, we are concerned that there are some lawyers – and we stress ‘some’ – who are in effect taking advantage of these men, getting them to sign an agreement that entitles the lawyer to claim a share of the man’s injury claims compensation, without putting in the real effort required to support and advise the client, and while MOM offers the same services for free and holds the power to enforce the regulations.

Based on our experience with the cases of thousands of workers seeking advice related to the work injury claims compensation process, we have arrived at the following point of view:

  1. Workers should be informed and educated to understand that most injury compensation claims can be made without requiring the services of a lawyer.
  2. If a man does engage a lawyer, then that lawyer should be guiding and helping the man in his compensation process, informing him of the progress of the case, charging only for disbursements and services provided, and making himself generally available to the client, and placing the client’s interest above his own.
  3. MOM should offer assistance with lodging the compensation claim, making interpreters available when necessary, ensuring timely and adequate medical treatment, recovering unpaid salaries and forced savings, understanding the difficulties of the worker with respect to uncooperative employers and enforcing compliance of the employers.


How did it come to this?  A Bangladeshi worker’s perspective

Here is our understanding, based on our discussions with many injured Bangladeshi workers, of why so many injured foreign workers agree to take on a lawyer.

Injured migrant workers believe they don’t have the fluency in English and the knowledge of Singapore employment and injury compensation practices and to manage their case on their own. They believe that as a Bangladeshi foreign worker they would not be successful in lodging a successful claim with the Ministry of Manpower.

Many foreign workers have told us that the Bangladeshi legal assistants working in the law firms reinforce these beliefs. The Bangladeshi legal assistants actively persuade the foreign workers to take on lawyers.   On multiple occasions, injured foreign workers coming to our Cuff Road Project have told us that they have encountered legal assistants who promise to

  • provide protection from an employer’s repatriation efforts,
  • assist with reclaiming unpaid salaries and medical leave wages,
  • provide food and housing while the worker is waiting for the claim to be settled, and
  • enable the worker to receive a higher compensation amount than the workers would receive otherwise.[2]

This points to a very troubling situation, bordering on or crossing the line of inappropriate sales practices.   These promises and assurances by Bangladeshi legal assistants working for the law firm would be hard—practically impossible—to resist. The injured Bangladeshi workers are accustomed to a culture where an ordinary man isn’t capable of navigating his way through a powerful and intimidating bureaucracy—of employers, doctors, civil servants, insurance companies, police, and labour courts — on his own. The services of an influential legal man who knows how to manipulate the Singapore system appears like a godsend to the injured Bangladeshi worker.

Repatriation

Often the first threat an injured worker faces is forced repatriation. Once a worker has filed his work injury compensation claim, he is protected from being forcibly repatriated. The forms are simple enough that any worker could do this himself, or he could ask for MOM’s help, but many feel the claim lodged by a law firm is more effective.[3]  And the fear of being sent home before receiving medical treatment and disability compensation is great enough that men willingly engage a lawyer.

Housing

The next problem the worker may face is being tossed out on the streets by his employer.  Bangladeshi legal assistants offer cash loans and provide housing, essential to vulnerable, injured workers in need of treatment and recuperation.

However, employers are less likely to eject an injured worker from the company dormitory if he has not engaged legal services. It’s often because the worker has sought legal services that the employer reneges on his housing responsibilities. The boss may view taking a lawyer as a provocative and contentious act.

When injured worker readily accepts the legal assistant’s offer of loans and accommodation to sustain himself while waiting for compensation, he binds himself more firmly to the law firm and further antagonizes his relationship with his employer.

Medical leave wages and medical bills

The Bangladeshi legal assistants take advantage of their clients’ trust to circumvent much of the assistance and protection that MOM’s work injury compensation system offers. MOM requires that employers pay injured men their medical leave (MC) wages as regularly as they would pay salaries. However, Cuff Road Project volunteers often see injured workers who are not receiving their MC wages. Instead of assisting workers to recover medical payments and to receive monthly MC wages, legal assistants may reassure their clients that this money, together with any unpaid salary, can be claimed together with the final injury compensation.  Such a practice continues the client’s dependency on the legal firm’s offers of loans and housing.  And it may result in the legal assistant collecting a percentage of the injured worker’s MC wages as part of his fees.

If the issue of MC wages and medical bills is never raised with the employer, both MOM and the employer may be unaware that the injured worker is paying his own medical bills, not receiving his MC wages, and is relying on the legal assistant for housing, and on the Cuff Road Project food project for food. Ignorant of the employer’s lapses, MOM has no reason to step in to enforce the regulations.

Compensation amount

As for the legal assistant’s claim of being able to deliver a higher compensation amount, this is not within the power of the law firm—it’s entirely up to the doctor who will be following MOM’s work injury compensation act (WICA). Once the worker’s injury has healed and stabilized, the doctor follows MOM’s guidelines on assessing the worker’s permanent incapacity. The guidelines are clearly laid out and well followed by the medical community.  There is no opportunity for lawyers or legal assistants to influence the doctor’s assessment.


Attracting and keeping clients

Bangladeshi legal assistants find a variety of ways to attract new clients. They position themselves at the Ministry of Manpower Services Centre to meet prospective new clients and also to encourage clients of other law firms to switch to their firm. Legal assistants scout for new injured men in hospital wards, and they offer payouts to their existing clients to recruit new injured workers.

Lack of itemized receipts

Bangladeshi legal assistants handling work injury cases may act without the knowledge or consent of their employer, the registered lawyer. Since a WICA case doesn’t actually require a lawyer, the Bangladeshi assistant is able to accept money and issue letters to MOM entirely on his own. There may no paper trail of fees charged and money received.  The injured worker may be shown the amount of his compensation, and the fee charged may only be a single lump sum taken in cash from that amount.

Clients are reminded by TWC2 volunteers to ask for an itemized tax receipt of the law firm’s fees, but the men are often afraid to demand this, fearing retribution from the legal assistant. Threats and intimidation by legal assistants even extend to Bangladesh since the legal assistants know the personal particulars and home address of their clients.

The real gain for Bangladeshi legal assistants is the practice of charging a percentage of the worker’s compensation award as their fee. Charging a percentage is not legal under the regulations of the Singapore Law Society. Law firms are expected to charge a reasonable amount and charge only for work and services performed.

Pressured to go for common law settlement

The dependent relationship between the legal assistant and the client means that the injured man may be amenable to advice that he withdraw from MOM’s no-fault injury compensation scheme (WICA) and allow the law firm to negotiate a settlement under common law suit. We have seen instances where the legal assistant gets the help of a private doctor to make this appear to be an attractive option. A private doctor reviews the worker’s injury and gives his “assessment”. Since the legal assistant asks the doctor to produce the report rather than MOM, this doctor is not bound by WICA’s guidelines, and he can report a higher estimated percentage of incapacity. Such medical reports appear to guarantee higher compensation through a common law suit and help to persuade the injured worker is convinced to withdraw from WICA. Once he withdraws, he is no longer permitted to remain in Singapore and must return home to leave the case in the hands of the law firm.

In some common law cases, smaller compensation amounts are negotiated privately between the worker’s law firm and the employer’s insurance company. This saves everyone time and it also saves the courts from being needlessly tied up. But is not a transparent system for the client. The injured worker may believe that the court determined the amount of settlement, when in fact the final payment was decided in a phone conversation between the law firm and the insurance company.

Restricting a client’s access to his files

Keeping clients in the dark about payments from the insurance company is a common practice of legal assistants. Some demand that their clients sign forms surrendering their right to view the papers their files—and the injured man only receives his portion of the compensation money after he signs. The injured worker is led to believe that his position will be disadvantaged if he asks for proof of the settlement amount.

Restricting a client’s access to the papers in his legal file is an important aspect of the control the Bangladeshi assistants assert over their clients. If the file contains originals, the client may feel it would be impudent to demand these papers back, unaware that the papers in the file belong to him rather than the lawyer. Without access to medical documents, he may not know the severity of his injury or the details of his treatment. Without original invoices and medical slips, he can’t demand payment from his employer or the assistance of MOM. Without documentation, he’s prevented from acting on his own behalf, and fearful of switching law firms or discharging the law firm.

Not bound by scope of Singapore Law Society

Not every Bangladeshi legal assistant controls his clients in this way, but with the massive amounts of money to be made from injury compensation, these strategies are hard to resist. The legal assistants who work with law firms in this way are not registered as legal practitioners in Singapore and so cannot be the subject of a complaint to the Law Society. If the registered lawyer is unaware of the activities, a complaint is harder to make. Lawyers may understand what their assistants are doing, some with satisfaction that it boosts their revenues even while lining the assistant’s pocket, others with alarm that the unscrupulous behavior of some taints the ethical, legal practices of others.


Recommendation: Education

Spreading information to workers, preferably before an injury takes place, would diminish the problem. MOM has excellent guidebooks in a variety of languages about the MOM regulations and the work injury compensation system. TWC2 has done much in this area by talking to the injured men at the Cuff Road Project about how to manage their case without legal help, but advice given before the accident would be even more effective. The private Bengali newspaper, Banglar Kantha, often carries articles about the nefarious activities of Bangladeshi legal assistants (but at the same time it depends on advertisements from law firms to keep the paper afloat).

MOM is in the best position to disseminate information by making printed material available at:

  • MOM headquarters
  • hospital A&E departments
  • private clinics

Orientation sessions and safety classes for new arrivals could include this information. The pamphlets should also be made available to:

  • medical examination clinics where fitness checks are done before the men start working
  • employers
  • dormitory operators

Enabling men to access MOM’s work injury compensation process with assistance from interpreters and MOM officers would reduce the perceived need for legal representation. As a result, the injured worker would receive his full compensation amount, as he should.


FOOTNOTES

[1] The Cuff Road Project offers free meals to injured migrant workers. This project is part of TWC2.

[2] The activities described here are typical of the Bangladeshi legal assistants. We don’t see these activities as often with workers from India and China, possibly because law firms hire Tamil- and Chinese-speaking Singaporeans for such cases, and these legal assistants do not typically engage in such practices.

[3] Repatriation of injured workers is a serious problem. There needs to be more awareness and education of workers on how to avoid this if they are taken to the airport before their injury is treated.

 

 

TWC2 is an organization that is dedicated to assisting low-wage migrant workers when they are in difficulty. We are motivated by a sense of fairness and humanity, though our caseload often exceeds our
means.

Make a difference

help with your donation become a volunteer