Top 5 Tips for How to Retain an Indigenous & Aboriginal Law Lawyer Who Meets Your Needs & Budget

If you want a house sold, or a will drawn up, or a business incorporated, you’ll often have thousands of lawyers to choose from depending on where you live. But if you’re looking for expertise in Indigenous and Aboriginal law, you could be choosing from among as few as dozens of lawyers in your province or territory, or within the low hundreds of lawyers on a national basis.

Those with significant expertise in Indigenous and Aboriginal law are persistently in short supply, with lawyers doing that type of work being thinly spread anywhere in Canada. First Nations, Inuit, Métis, Indian Act Bands including Chiefs and Councils, Indigenous organizations and individuals may find the proverbial phrase “good help is hard to find” is especially true when seeking out private legal services that fit their needs.

The causes of this lawyer shortage range from law schools having limited offerings in Indigenous and Aboriginal law, bar admissions courses not testing candidates in those areas, lawyers increasingly being concentrated in big cities which may be far away from Indigenous clients whom they could gain experience working with, and the significant number of government lawyers who do have some relevant experience not being overly keen to enter private practice (with me and a few others being the exceptions).

Very legitimate questions to wonder about when contemplating hiring an Indigenous and Aboriginal law lawyer include:

• can we afford a lawyers’s fees?

• is the lawyer actually going to understand our people’s needs?

• does the lawyer really know anything about the area of law we require?

• how do we pick among lawyers?

• do we need more than one lawyer?

• should we only look locally for a lawyer, or is looking locally totally hopeless?

• should we look outside our province or territory for a lawyer?

Unfortunately, it’s difficult to generalize about how to find the perfect lawyer, as so much of that comes down to the lawyer’s “fit” with the client. But I’ll try to answer the foregoing questions in this post of top 5 tips for how to retain an Indigenous and Aboriginal law lawyer who meets your needs and budget.

My thoughts are based on my having seen firsthand Indigenous and Aboriginal lawyers at work in every province and territory of Canada. I’ve seen lawyers with vast practice experience, and lawyers with almost no experience. I’ve seen lawyers who charge high rates, and lawyers who charge very little. I’ve seen great service being provided, and sometimes not-so-great service.

1. Just Because You Have a Law Degree Doesn’t Mean You Know About Indigenous & Aboriginal Law: How to Judge if the Lawyer Knows Anything

Many law schools (with notable exceptions) may at best offer one course in Indigenous and Aboriginal law, and it’s rarely mandatory to take it. There aren’t even many books available to study for this vast and rapidly evolving legal specialty. Thus any lawyer you’re considering retaining should be closely asked about their prior work in the field in government or private practice. This is truly a “you learn by doing type of law” where the vast majority of lawyers in Canada never get involved in the field.

With the hugely oppressive prior restrictions under Canadian legislation preventing Indigenous peoples from retaining counsel which continued until the 1950s, the advent of modern Indigenous and Aboriginal law lawyers in Canada was only in the 1970s (who could be termed the first-generation lawyers), particularly amongst those who got involved at the start of modern treaty negotiation processes. The youngest of those lawyers started practicing in the 1960s, meaning that they are all now edging into their 80s and retiring from the practice of law.

The second-generation lawyers likely got into the field starting in the 1990s or later (when I started), as a series of precedent-setting Supreme Court of Canada cases were increasingly litigated, modern Comprehensive Claims treaty negotiations expanded greatly, and Specific and Special claims negotiations increased. There’s now also a third generation of lawyers getting into the field.

When choosing among lawyer candidates, you need to ask any of them for a detailed c.v., push them on what they really know, and how they learned what they know. Some “small town” lawyers could have vast relevant experience, whereas other nationally prominent lawyers could have zero.

In terms of years of experience, law is probably like any discipline in that it takes about 10 years to figure out what you’re doing. But a 40-year experienced lawyer won’t necessarily be four times as good as a 10-year lawyer.

2. Cost Depends More on Scope of Work Than Hourly Rate: Focus on the Big Picture on Costs

While there can be an obsession among lawyers and non-lawyers alike over the hourly rates charged by lawyers - ranging in Canada from a modest $150/hour to a mind-blowing $1,300/hour or more - the reality is that two hours from that $1,300 lawyer could be a lot better value than 100 hours from that $150 lawyer. So clearly defining scope and objectives of the legal work you hope to have accomplished within a particular budget may better guide how much your legal services really cost, rather than hourly rate. Get a flat block fee quote for the work if you can.

Even a complex legal opinion might only be a few thousand dollars (regardless of hourly rate), whereas what was initially hoped to be a “simple” court case could exceed $100,000 (or $500,000 or more) in legal fees, because the legal opinion can be done quickly by an experienced lawyer, while spending weeks in court will burn huge amounts of time for a lawyer of any experience.

The reality is that Indigenous and Aboriginal rights litigation may be the most complex type of court case possible to mount in Canada, thus coming in with the highest price tag. For example, I heard the fees and disbursements on the Delgamuukw Aboriginal title case just in 1990s dollars ran to $13 million for the Indigenous peoples involved. All to be told by the Supreme Court of Canada to start over because they needed a new trial!

Contingency fees are possible in Indigenous and Aboriginal law, however such fees can also lead to fallings out between lawyers and clients. A combination of discounted hourly rates and a modest contingency fee % might be a good compromise between hourly and contingency fee methods when a matter is too complex and unpredictable for a flat block fee.

My own fees tend to be mid-range at $395/hour, I can’t afford to work solely on contingency, but I will consider hybrid discounted hourly and contingency fee combinations and offer flat block fees where possible.

Are the terms of retainer agreements negotiable? Absolutely. Law Societies don’t prescribe the words that appear in a retainer agreement (other than contingency fee language). And a law firm retainer isn’t like a car rental contract, where you’re paying a small price to a giant corporation with no hope of changing the fine print.

While lots of lawyers have standard form template retainers (my firm does), some will be open to adjustments. All should be open to add-on language. For me, the basic language I have in our retainer I ethically and contractually need, but I’m fine with reasonable requests to add additional language to clarify important issues.

3. Striking a Balance Between Local Counsel & Experienced Counsel: Will Travel Costs Kill Us?

Seeing your lawyer face to face at least some of the time is important. None of us were put on earth to live our entire lives via Zoom.

Some lawyers charge nothing for travel time, just for disbursements. Some charge 1/2 their hourly rate for travel. Some charge 100% of their rate to travel. If that travel involves driving downtown to court in the same city, it might not be so bad. But for Indigenous clients who could require a day of continuous travel to see them, the travel costs could risk exceeding the costs of legal services for smaller projects!

Thus it’s very important to ask any prospective lawyer about travel costs. Some might agree to a fixed rate for all travel, like an all-inclusive time and disbursement amount per trip. Some will be more tech-savvy than others, being able to provide you with high-quality services mostly remotely, while others will be largely trapped by a paper world.

Some might be like me, where I typically don’t charge anything for travel time on closer distances - just for the cost of disbursements like a flight - as I might be able to do some work for the client while travelling. Though for longer distances I might need to charge something for my time if it means I can’t be doing work for other clients over an extended period of time, as ultimately all lawyers have to sell is our time. But lawyer travel will always be very negotiable as to cost, so it may pay to press a lawyer candidate on travel costs, while hourly rates may be less negotiable because of fixed overheads.

4. Should I look Outside My Home Province or Territory for a Lawyer?

For many types of law that are unique to a province, like real estate, the answer is no. However, the answer for Indigenous and Aboriginal lawyers is absolutely look beyond your borders, as those lawyers are primarily dealing with federal law that is largely consistent throughout Canada. And looking outside your province or territory will give you more lawyers to choose from.

A protocol among almost all law societies in Canada (other than Quebec and the Territories) now permits lawyers of any province to practice in another province for up to 100 days a year. Non-Quebec lawyers need a special permit to practice in Quebec (I have one). The Territories require at least a temporary call to the bar in order to do legal work there, as they have such small resident bars that they risk not being able to fund their operations if no one was required to take out practice permits to practice there for up to 100 days, however those temporary calls aren’t hard to obtain.

5. Just Because You Hire a Lawyer Doesn’t Mean That Lawyer Will Do the Work: Know Who You’re Actually Hiring

When hiring a lawyer, it’s important to confirm up front who will be doing the work. In larger firms, while you might be hiring a “name” partner, will you actually ever see that partner again after the hiring, or will it be junior associates doing the work? Certainly, lawyers work as teams, and there’s nothing wrong with work being delegated to those with lower hourly rates, so long as the senior lawyer remains available to the client, and engaged in the work.

If you hire a sole practitioner, you’ll always know who is doing the work, but for very large-scale legal projects you might need more lawyer or support resources than that one lawyer can provide. Sometimes individual lawyers will partner up for larger Indigenous and Aboriginal law projects, giving you the benefit of a legal team, while still knowing who is doing the work. That’s my usual approach to highly complex time-consuming matters.

Asking lots of focussed questions of any prospective lawyer, and then asking even more questions, will always be your best route to finding the ideal lawyer who meets your needs and budget.

Gordon S. Campbell practices Indigenous and Aboriginal law throughout Canada. Learn more at www.acmlawfirm.ca.