The Law Society of British Columbia is seeking input from B.C. lawyers on whether members who carry out public interest work should get a break on their fees and insurance rates.
A proposal for fee and insurance reductions for lawyers carrying out public interest work is not new as the issue was raised in 2012 and a working committee was struck. In 2013, that committee deemed it not feasible. The issue was again raised at an LSBC 2017 annual general meeting in the form of a resolution, which was then removed and put forward with a second working group struck.
The 2017 Annual Fee Review Working Group consists of Dean Lawton (chairman), Barbara Cromarty, Roland Krueger, Jamie Maclaren and Philip Riddell. The group has posted a four-page report with backgrounder on the LSBC’s website that outlines submission points and concerns.
The group reiterated in its current report that the three basic concerns of the earlier group were still valid today. They are: justifying the benefit to the entire profession and a possible floodgate syndrome as other groups seek reductions on the same basis; the financial impact of reductions on the rest of the membership; and, finally, how to define public interest and identify the group that would benefit from reductions.
Fee reductions have already occurred within some sectors of the LSBC membership. “Non-practising and retired members pay a much reduced fee. In addition, the in-house counsel, lawyers working for government and other non-law entities do not pay the insurance fee, and lawyers in private practice who work less than 25 hours a week on average pay 50% of the annual insurance fee,” the report said.
The working group’s report stated it is concerned with the “beneficial impact” of a fee reduction and whether it would achieve the perceived purpose of helping lawyers carrying out this work.
Kasari Govender, executive director and practising lawyer of West Coast LEAF, says her organization will be submitting a brief to what she calls an “important” issue. “There is no question that this has been on the minds of the non-profit legal community for some time,” she says, adding that it is an extra cost for organizations that pursue social justice cases and that lawyers who take these cases often take on many unpaid hours. There is a wide range of incomes for lawyers throughout the profession, and the work carried out by public interest lawyers bringing forward these cases benefits both society and reflects well on the legal profession, she says.
Legal Services Society chief executive officer Mark Benton says it would help both those lawyers undertaking legal aid work within organizations or carrying out legal aid services in private practice as well as lawyers who take on cases that are not covered by legal aid but still require legal support. Fees “contribute to the cost of providing legal services,” he says, as overhead is a constant concern.
Benton says the concerns raised in the submissions report issued are all important and need to be considered, but there is also the issue of ensuring that lawyers have the financial viability to undertake cases, which translates into an access-to-justice issue as well. “The heart of the issue is what is the policy objective [the LSBC is] trying to meet to extend legal services and make them more accessible to people,” he says.
Ecojustice board member David Rosenberg says he sees the benefit going to both lawyers and organizations. “I think it is well known and recognized that certain organizations that might be taking a public interest advocacy role, like Ecojustice, they do not generally pay the equivalent of a downtown law firm salary.” Ecojustice is one organization that hires its lawyers full time and, therefore, pays the professional fees for lawyers, rather than use lawyers on a case basis as some organizations do. A reduction in professional fees for Ecojustice would see more funding given toward cases. “It would also mean that donors are getting more for their donation,” says Rosenberg.
The report states that perhaps the most “significant challenge” would be providing a reliable definition for a clearly defined group eligible for the discount. “The challenge of finding the most appropriate group for the potential reduction is complicated because a very broad range of lawyers may claim to have involvement in work that produces public interest benefits,” it said. Public interest could be claimed in civil litigation involving corporate clients. The organizations claiming to do public interest work may also be subject to debate and political disagreement, the report claimed.
Govender says she believes it is possible to put forward a workable definition and doesn’t see it as a deterrent for implementing a program.
Lawton wrote in an email that the committee had studied the issue in B.C. and Ontario. Following the submissions made to the working committee, it will issue its findings to the LSBC benchers. “I expect our work to be completed this fall when we will provide our recommendations to the benchers for their consideration,” he says.