The Law Society of British Columbia bencher and Access Pro Bono executive director Jamie Maclaren has submitted his report on how to best deliver legal aid services to Attorney General David Eby, and some stakeholders are hopeful the recommendations will provide a form of a mixed model use of private and public lawyers.
The mixed model for delivery is one of the options that Eby asked Maclaren to explore as he set down the mandate of examining service delivery models. Maclaren's report will look at workflow and caseload demands, private bar and mixed models, duty counsel, choice of counsel, clinics, major case coverage and paralegal as well as trends and challenges (geographical, cultural, demographic, technical, resources and capability). Criteria such as client eligibility, various areas covered and tariffs to lawyers were beyond the probe's scope.
“The review will focus on the effectiveness and efficiencies of legal aid service delivery in British Columbia from the point of view of citizens who use legal aid service,” according to an October press release issued when Maclaren was appointed. The review was also to consult with "any individuals or organizations" that would add to the recommendations.
Public engagement ended Nov. 23 with 41 written email submissions, 111 written submissions as a result of stakeholder surveys and 102 personal consultations.
The final report, which has no set date for release, should include prioritized recommendations for potential improvements in legal aid service delivery on the basis of demand, resource efficiencies and positive outcomes for citizens dealing with their legal matters.
Legal Service Society chief executive officer Mark Benton says he has not seen a copy of Maclaren's recommendations handed to Eby, although Maclaren spent time in his offices speaking with staff. LSS is the main legal aid provider in B.C.
Benton says the LSS board favours a mixed model that blends local staff with hiring private lawyers as needed. This is a B.C. model that has been used in the past prior to the legal aid cuts that began in 2002. Benton does not favour moving back to the exact old model as LSS is already working with private lawyers and there is potential to expand that position. As well as private lawyers and in-house staff, LSS has a network of 33 community agencies that help provide access to legal aid, he said.
"We are looking forward to hearing what the Maclaren report has to say," he says.
The CBABC Access to Justice Committee submission to Maclaren advocates for the mixed model as it can provide the broadest range of services using private and staff lawyers. "It is the recommendation of the Access to Justice Committee that a mixed model of legal aid services delivery be adequately and securely funded for family, criminal, mental health, poverty, prisoner and refugee legal aid, as is the case in Ontario, including tariff services, legal aid clinics and funding for in-house counsel located in front-line service delivery organizations," it said.
The CBABC submission said a key benefit of the mixed model is the client's ability to choose the type of service required. This would include the ability to choose a lawyer and ensure the lawyer's loyalty to the client and "maximum independence from state interference." The model also includes community government and legal clinics that would provide legal advice with community elected boards and more staffed offices in communities.
The Law Society of B.C. submission does not advocate for a mixed model but rather outlines some suggestions that would enhance legal aid within the province. These include more community face time or communications with lawyers, more regional legal aid centres, establish front end centres where individuals — regardless of income — can get public information to determine if they have a legal case, increased services to Indigenous communities, incentives (including raising tariffs) to encourage lawyers to undertake legal aid work and broadening the scope of coverage, especially in family law.
Michael Mulligan, a Victoria lawyer who has been vocal in the need to restructure the way legal aid is handled in B.C., says the Maclaren inquiry falls short of needs. The whole system requires an overhaul, more funding and more arms-length from government, he says.
"One of the concerns restricting the inquiry to a service delivery model is that it is not fixing the underlying problem, which is a massive under-funding," Mulligan said.
Cuts to legal aid funding have galled lawyers as they are the only B.C. profession required to charge PST on billings. It was originally introduced in 1992 by then NDP finance minister Glen Clark, with the implication that funds would go to legal aid. Instead, dollars went to general revenue with the 2107 yield of $210.6 million and only $75 million to legal aid (excluding the federal transfer of about $16 million for criminal legal aid).
"It was a broken political promise rather than a legal one," Mulligan says.
The Legal Services Society Act was amended in 2002, eliminating its independence from government, which Mulligan sees as another problem. LSS is financially reliant on government funding, the AG's office appoints five out of nine board directors (with the LSBC nominating the others) and the ministry determines, by memorandum of understanding, what legal areas of representation the funds will be applied to. Mulligan wants to see those areas of coverage spelled out in legislation.
Mulligan favours a mixed model but one that sees more independence There are areas where in-house staff lawyers can still provide legal services such as poverty law, but they should not be handling criminal and child custody cases where they face off against government prosecutors.
"In many LSS criminal prosecution and child apprehension cases, it is the provincial government that is doing the litigation," he says. Mulligan favours using outside lawyers for legal aid but in a way that separates the lawyer from government control and best serves the client's interests.
Association of Legal Aid Lawyers director Richard Fowler says his association has been in contact with Eby and has been promised a copy of the Maclaren report when it is released. He declined comment until then. However, in news reports when Maclaren was appointed, Fowler said that B.C. needs to increase its funding for legal aid.