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Legal aid: a system in peril

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|Written By Robert Todd
Legal aid: a system in peril

Jordan Weisz is the kind of lawyer who has kept Canada’s legal aid system afloat for the past two decades. About 80 per cent of the clients who come to his doors each year have a legal aid certificate in hand. Yet they represent less than half of his revenue. As a senior practitioner, he qualifies for Legal Aid Ontario’s top tariff rate of $106.90 per hour. But LAO is forced to make do with a fixed amount of funding each year regardless of demand for services. To cover the shortfall, it restricts the number of hours for which lawyers are compensated, regardless of what may be required for a proper defence.

Take for example one of Weisz’s legal aid clients who goes to trial on a summary conviction matter requiring a Charter of Rights and Freedoms application. LAO will let him bill just 12.5 hours from the time he first meets with that client to the end of the trial. He estimates it would actually take about 20 hours to meet his obligations to such a client. When operational costs are factored in, he collects about $36 per hour.

Weisz makes a go of it thanks to a stable of private clients built over 18 years in practice. But all of the free hours he puts in on the legal aid side, while viewed as a professional and ethical responsibility, wears on him — especially when he is doing it instead of spending time with his three young children. “When you’re not being paid even a modest amount of money — and indeed you’re losing money because you’ve got to continue covering your overhead — it breeds a huge amount of resentment toward those who are responsible for funding and don’t meet their responsibilities.”

That bitterness underlies what became a flashpoint leading to Ontario criminal lawyers’ eight-month boycott of legal aid in 2009. Yet the boycott was just one indication of a fractured system. A steady stream of studies from coast to coast have called for boosts to funding levels and a more innovative approach to delivery of legal services to those in need. The Canadian Bar Association got involved by launching a test case in 2005 to establish a constitutional right to a base level of civil legal aid, but it flamed out in the pretrial stage. Pleas for a renewal of the system have largely been ignored, and it remains unclear just how much longer lawyers like Weisz will be willing to prop up the system.

Roots back to the Second World War

Legal aid in Canada has been traced back to the Second World War, when the CBA created a temporary program for soldiers. The scheme helped prompt the Ontario government to enact legislation in 1951 creating the country’s first formally structured legal aid program, in partnership with the Law Society of Upper Canada. The law society dealt with the day-to-day operations of the system, while the government fronted the cash. However, lawyers were compensated only for administrative costs and expenses. The system was expanded in 1967, when a statutory right to legal aid was established for a loosely defined group of financially eligible clients, and lawyers were permitted to collect counsel fees.

Other provinces adopted similar programs throughout the 1960s and 1970s, offering differing levels of coverage. The federal government got on board in 1972 through a cost-sharing system enshrined in the Federal-Provincial Agreement on Legal Aid in Criminal Matters. The deal committed the feds to providing 50 cents per person for legal aid matters in the criminal justice system. The Department of Justice now has contribution agreements with each province and territory for criminal law, immigration, and refugee matters. Ottawa first backed civil legal aid through the Canada Assistance Plan, and now does so through the Canada Social Transfer. Through that scheme, provinces decide whether to put the cash toward post-secondary education, social assistance, or social services. That makes it impossible to know just how much of the transfer gets funnelled to legal aid.

By most accounts, it seems what began as a proud government initiative to ensure adequate legal representation for the poor has been nudged off course by other priorities. Legal aid funding in Ontario — the province that spends the most on it per capita — fell by nearly 10 per cent from 1996 to 2006. Over the same period, the province raised its health-care spending by 33 per cent and education expenditures by 20 per cent. The result is palpable: according to LAO’s 2006-07 business plan, the number of people refused service had increased by 42 per cent in two years.

Ontario isn’t the only province struggling to meet its legal aid promise. A drop in federal funding during the 1990s diminished plans across the country. Experts say most legal aid programs never recovered from the cutbacks between 1997 and 2001, when Ottawa’s yearly funding for criminal legal aid dropped to $72 million from about $79 million. More cash has started to flow back to the system, with Statistics Canada reporting the feds kicking in $112 million in the 2008-09 fiscal year. Nevertheless, those inside the system say too many people continue to be denied legal aid, forcing them to navigate the complex court system on their own or make grave financial sacrifices to free up cash for a lawyer.

Questioning the judicare model

University of Alberta Faculty of Law professor Sanjeev Anand notes that legal aid is a tricky issue for governments. On the one hand, they must ensure citizens receive adequate legal representation when their liberty is at stake, but at the same time, they must keep a close eye on the purse strings, especially during times of economic malaise. To bridge this gap, efforts have been made to find more efficient means of providing legal representation to those in need. Many have questioned the utility of the widely used system, often called judicare, where private lawyers are paid a fee for each case they take on a legal aid certificate. Anand, a former legal aid staff lawyer and Crown counsel, points to a concern of so-called “dump trucks” — lawyers who take on as many legal aid cases as possible and deal away the matters to turn a profit.

He acknowledges far more lawyers put in pro bono hours when accepting legal aid cases, but the perception created by the few who abuse the system can’t be ignored. “There are undoubtedly instances of abuse, where clients are not being well served because lawyers are looking at the system and saying, ‘I’m not going to go and do a full interview with my client, because I only get paid a certain amount; I’ll do the interview right before we walk into the courtroom. I’m not going to engage in a lot of negotiations with the Crown; prior to trial I will engage in those negotiations at the courthouse steps.’” Anand continues, “When you’ve got that pressure because legal aid doesn’t properly compensate lawyers for their services, you’re going to have lawyers who are going to feel a tremendous amount of pressure to cut corners.”

Some jurisdictions now use a legal aid staff model to guard against abuses. Mario Santos, chairman of Legal Aid Manitoba’s management council, says his province’s mixed system of retaining private lawyers and creating legal aid clinics has kept both sides honest. He says Manitoba has a system in place to track the success of both types of providers, private lawyers and those being represented by a lawyer at a legal aid clinic. After five years in his current position, Santos says it’s clear the mixed system works best. “You look at the cases, and you see cases where staff are more expensive than the private bar, so you first try to improve internally. When that does not work, you then give those jobs to the private bar. At the same time, there is some work where the private bar is more expensive and less efficient, and then the staffers can deal with it.” Adds Santos, “You go to the quickest possible destination by the quickest route.”

He says over the last 18 months, Legal Aid Manitoba conducted a business analysis of the costs for using staff lawyers versus the private bar and found: private bar lawyers can be more efficient in providing service for less complex criminal cases; and in more complex criminal cases, staff lawyers can deliver services more efficiently. For example, he says in 2004, five private bar lawyers were demanding approximately $4.5 million to represent alleged Hells Angels associates/members in a mega criminal case with the potential of approximately a full year of trial. Staff counsel could have provided legal representation for a year for less than $1 million with no issues of business interruption had the case folded, notes Santos.

What the analysis also shows, according to Santos, is that maintaining a balance of having the private bar and legal aid staff lawyers each providing about 50 per cent of legal aid cases is the most cost-efficient way to run the system.

Anand says a staff model has some advantages. Perhaps most importantly, it allows senior lawyers to mentor new lawyers, who are largely left to hang their own shingle and navigate the system on their own in the judicare model. In a high-quality staff lawyer setting, senior lawyers teach juniors the ropes. However, notes Anand, that assumes the staff office is well run and managers have the resources to spend time with young hires. Unfortunately, the opposite is frequently the case, which can also lead to attrition, says Anand, further diminishing the level of service to clients. “If they’re not properly funded, people leave, people cut corners, people get burned out. Managers become more lax when it comes to supervision. So again, the issue isn’t the model of legal aid provision, it’s the amount of money that’s being put towards it. Because whether you’re dealing with the judicare or the staff model, you’re going to have issues with it if it’s not properly funded.”

Joe Comartin, justice critic for the federal NDP, says he has pressed Justice Minister Rob Nicholson on the funding issue and senses the attorney general knows more cash is needed. But it seems Prime Minister Stephen Harper and Finance Minister Jim Flaherty are unwilling to budge. Comartin says more stable funding from the feds is principally important for the creation of a national standard for legal aid. He considers Ontario’s system the most extensive in terms of coverage, with the Atlantic provinces in the back of the pack. At the same time, he believes the Conservative government is obliged to increase legal aid funding due to its tough-on-crime agenda. The introduction of mandatory minimums — a tactic widely discredited in the United States due to the added strain it puts on the justice system — is expected to cause a decline in guilty pleas, for example.

But it’s not just the feds who need to do more, emphasizes Comartin. He calls recent cuts to legal aid in British Columbia, for example, “quite horrendous.” According to one estimate, funding in the province plummeted to $74 million in 2008-09 from $96 million in 2001-02. The B.C. Legal Services Society was forced to shutter five regional offices last year and lay off more than 50 staff due to the shortfall. “The provinces have a significant responsibility here,” says Comartin. “They’re the deliverers and ultimately the ones responsible for it.”

Many attribute the legal aid funding crunch to the public’s myopic view of the system, which governments have failed to temper. “It’s an optics problem,” says Anand. “When the government says, ‘We’re going to put more money into legal aid,’ the first thing the public thinks is, ‘Oh my god, we’re going to be paying defence lawyers for people who are guilty?’” Governments have failed to explain their ethical and constitutional obligations to provide legal aid, says Anand. They also fail to highlight research showing legal aid spending saves money in the long run. A recent PricewaterhouseCoopers study in Australia, for example, found each dollar spent on family law cases offers a $2.25 value to the overall justice system.

Lawyers in B.C. hope to correct the public’s misperception through a series of public forums. The province’s Public Commission on Legal Aid was struck and funded, to the tune of $200,000, by six legal organizations led by the CBA’s B.C. branch. The Law Society of British Columbia, the Law Foundation of British Columbia, British Columbia Crown Counsel Association, Victoria Bar Association, and Vancouver Bar Association are also involved. Stephen McPhee, president of the CBA’s B.C. branch and chairman of the commission’s steering committee, says the initiative aims to give the public a greater sense of ownership of the legal aid system. It will offer a forum for individuals to discuss their experiences with legal aid, which will help shape a final report with recommendations to improve the system. “We’re asking the public what their priorities are; we’re asking the public how legal aid should be delivered, what issues should qualify for legal aid,” says McPhee. “We’re sure that when we get that information and take it back to our stakeholders in the government, we’re going to be given a platform to develop a better legal aid system in British Columbia.”

Last month, to raise awareness of the lack of legal aid, a group of lawyers handed out free legal advice in Vancouver’s Victory Square. The Pro Bono Going Public 2010 free legal advice event was presented by the Access Pro Bono Society of B.C. and sponsored by the CBA.

Alberta, too, is tackling the issue. On June 23, the Law Society of Alberta held a special meeting for the purpose of discussing controversial changes approved by the board of directors of Legal Aid Alberta and funding to the Legal Aid Society of Alberta. During the meeting, two motions were proposed pursuant to Rule 33(2)(b) of the Rules of the Law Society of Alberta, in particular: (a) that the law society publicly advocate in the public interest for an adequately publicly funded legal aid system with a statutory foundation that is independent of the government and (b) that the law society request that the Legal Aid Society immediately rescind the recent changes including the changes to the financial eligibility guidelines and the choice of counsel provisions.

And much like the B.C. effort, the University of Toronto Faculty of Law is targeting middle-class access to justice in an ongoing project. Professor Michael Trebilcock, who wrote a 2008 report on the state of Ontario’s legal aid system, says the initiative acknowledges that efforts must be made to bolster the middle class’ participation in the system, especially on the civil law side. Trebilcock notes most studies show a U-shaped distribution of access to legal services. The poorest of the poor qualify for legal aid, and the very wealthy can pay for a lawyer on their own, but the vast group in between is typically left out. The U of T group has conducted a review of literature on civil legal needs, identifying debtor/creditor issues, employment law, and family law matters as the most pressing areas for increased service. The project will culminate with a series of three research papers to be presented at an international conference this fall. Trebilcock says the law school may create a pilot program in which law students would provide legal services in one of the high-need areas.

A holistic approach

Meanwhile, other experts say a more holistic approach to the provision of legal aid services is what’s needed most. In the CBA report titled, “Moving Forward on Legal Aid,” Melina Buckley outlines some options, including multidisciplinary practices where lawyers collaborate with other professionals to guard against “referral fatigue” among clients. This type of arrangement, suggests Buckley, can make it easier for the lawyer to focus on the individual’s legal issues, while also providing a better idea of the client’s health or personal circumstances that may underlie legal problems.

Buckley uses the Bronx Defenders in the U.S. as an example of this holistic approach to legal services. The program brings together social workers, youth and community outreach staff, criminal defence lawyers, and civil lawyers with expertise in child welfare, housing, and immigration matters. “Inter-disciplinary working groups reflect the interconnectedness of the issues facing low-income clients and can best meet their overall needs,” reads the report. “Instead of solving a legal problem and often seeing the client continue in the situation that gave rise to the problem, a holistic approach holds the promise of a more fundamental and permanent change in circumstances.” One assumes such a program would offer significant cost savings to the justice system and other social programs by cutting down on repeat offenders.

But not everyone agrees that government concessions on legal aid funding can come through a change to public perception, or that the system can be mended through innovation. Ontario’s Criminal Lawyers’ Association had long pressed the province’s need for a better-funded system, yet got no traction until lawyers walked out in 2009. Their eight-month boycott of homicide and guns-and-gangs cases eventually led to a promise to increase funding to the system to $280 million from $200 million, along with an incremental boost to the tariff level to $136 per hour by 2015. CLA past president Frank Addario, who led the association through most of the boycott, says a walkout was the only way to force government action. He notes over the past 25 years the government commissioned more than a dozen reports calling for an increase to the tariff, yet ignored each one. “Governments always tell you they don’t respond to pressure; in fact the opposite is true. They don’t like pressure, but pressure is the only thing they respond to. We applied pressure, we were an irritant, they responded.” At the end of the day, says Addario, “the squeakiest wheel gets the grease.”

Although the Ontario boycott was initially met with euphoria from lawyers in the province, anecdotal evidence suggests it may not have been a slam dunk after all. Weisz, a career-long member of the CLA who emphasizes his views don’t necessarily reflect those of the association, says it appears LAO is providing fewer legal aid certificates since a second tariff boost took hold in April. That may also be due to a shortage in funds from lawyers’ trust accounts, a portion of which is funnelled to LAO. Regardless, Weisz says the courts feel empty of lawyers and many of his colleagues have been forced to lay off support staff. It may be too soon to gauge the impact of the agreement, he says, but things don’t look good early on.

As part of its ongoing transformation, LAO closed regional offices while redirecting certificate applicants online and to toll-free telephone numbers. The province’s Justice on Target project aims to decrease the number of pretrial appearances, but Lou Strezos, who chairs the CLA’s legal aid committee, told Law Times last month that CLA members say long waits for certificates are producing the opposite effect. “The effect of the closures is conflicting at some level with the goals set by the attorney general in terms of reducing front-end set-date appearances. Unfortunately, what currently appears to be happening is that there’s increasing appearances while people wait. You see it first with people trying to get through to a person at legal aid, and then the approval process seems to be much longer.”

All told, Weisz says he’s still enthusiastic about criminal defence work. But the “sad truth” is that he wouldn’t do it if he were entering the profession at this moment. “I don’t think I could support myself,” he says. But he knows plenty of young lawyers who are getting into the field despite the grim financial outlook. Many are forced to live and work out of bachelor apartments, renting an office a couple of days a week to meet with clients. They forego expenses that many view as mandatory — such as a secretary and library — in hopes of making ends meet doing the work they too love, without the mentorship and resources many believe they need to do it well.

“It’s something that is in a way wonderful because you see the dedication of the younger lawyers. It’s also awful that they have to be treated like that,” says Weisz. “That’s what we’ve become. It’s a sorry state of affairs.”