The Perfect Storm: 4th Annual Canadian Lawyer InHouse/ACC roundtable - Video 3

  • Auto mechanic
    Suppose your car gets a flat tire, you might be able to wobble and limp to the closest service station, but if you continue driving for a distance, you will cause great damage. Better to park the car and not drive it further.

    Legal Aid is a broken system - a car with a flat tire. Until the system is repaired, Legal Aid should be parked, engage the emergancy brake, and turn off the engine. Continuing to drive with this broken system is causing great damage.

    Lawyers AND accused are better off with no system in place, than a broken system.

    One example:

    Without the Legal Aid "illusion", an accused facing serious charges can apply for the court to order PROPER funding for his/her defence. This option is curtailed by the exsistence of a limping system. It also saves the MAG a bundle!

    If it can't be fixed, junk it. No system is better than a broken system.
  • Guest
    You can't expect lawyers to fund the system. No one expects doctors to fund health care out of their earnings. If all HST revenues from legal services were funnelled back into legal-aid there would not likely be a problem.
  • Response to Ms. Brunning

    Jordan Weisz
    The following are my personal views and not representative of the views of any particular association:

    It is interesting that you mention this as a possible solution, namely, a levy so that, in effect, all firms commit a very small proportion of their fees to Legal Aid and their obligations to support those less fortunate and pro bono efforts of lawyers prepared to accept Legal Aid's grossly reduced rates.

    I support this solution and, indeed, in my detailed discussions with Mr. Todd, the author of the article, I mentioned two possible and common sense solutions which would be fair and anything but radical. I should add that Mr. Todd has done our profession a great service in highlighting an ugly truth that is so often ignored or papered over with cosmetic improvements and temporary band-aid solutions.

    The two solutions I proposed were:

    (1) A very small levy on gross billings of firms who bill above a certain amount. This levy would obviously reduce taxable income and I suspect could by itself restore Legal Aid.

    (2) I also pointed out that as of July 1, 2010, our province taxes ALL legal fees an additional 8 percent through the H.S.T. so that, in effect, the revenue stream of the Province increases significantly. It seems to me that the fair and equitable course of action by our government, (who along with our profession has an obligation to fund Legal Aid and ensure meaningful access to Justice), would be to stream a percentage of this new revenue stream back into the Legal Aid budget.

    Finally, I should note in regard to the second proposal, Legal Aid itself currently is obliged to pay on all it's fees this additional 8 percent back to the government. I would be interested in knowing whether this significant additional obligation that must be funded by Legal Aid as of July 1, in effect, is cutting into the increases that have been promised by the MAG so that there is a net "set-off" to any gains.

    Jordan Weisz
  • Fay Brunning;
    I am glad to see this issue get some airtime.

    What has to be recognized by the profession is the ever-widening gap between the "have" and the "have not" lawyers. Generally, the have-not lawyers are carrying the vast majority of the burden of serving the public and trying to give them meaningful access to justice (ie. informed legal advice). The have-not lawyers look at the legal merits of their client's case, not the client's ability to pay, and even when they take on the file, like Jordan, they do what has to be done for the client even though legal aid puts an arbitrary cap on billings. There are well-heeled lawyers who are reaping the benefits of a stable legal system and our relatively sophisticated democracy. There is a mature legal market for the big clients in Canada and there is a monopoly on that work by the well-heeled lawyers. However, those well-heeled corporate and IP lawyers cannot and do not provide the legal work that the public really needs directly in their lives: criminal defence, family, employment, child protection, plaintiff personal injury. Where are the well-healed lawyers? Lets face it, they do not have the skill nor the motivation to serve the public. However, those well-heeled lawyers should be supplementing the have-not lawyers who are fulfilling our professional responsibilities and making themselves available to the public, at great personal expense due to the present model of the legal industry, without any flow of resources from the have to the have-not lawyers.

    The legal aid system should be supplemented directly by the profession. The lawyers making $800 to $1000 per hour are reaping huge benefits, but they do not have the skills to do a criminal trial or provide legal services in any of the areas where the public really need help. [u][b]We should establish a levy system and compel every lawyer to pay 1 to 2% of gross billings into legal aid, regardless of source.[/b][/u]

    Do not create an exemption for people who do legal aid. Everyone in private practice should pay 1 to 2% of gross billings to legal aid every year and file an affidavit with the cheque. The employed lawyers who are licenced by their law societies to remain lawyers, but are in house, etc, should also have to pay 1 to 2% of their gross income as a levy to legal aid. Those monies shoud in turn be matched by the provincial governments.

    Then we would be putting our money where we know it is needed. Start to pay the lawyers who are doing the real work with some real income. Furthermore, give legal aid for more areas of legal need.

    The legal system should not exist so that some lawyers can make vast amounts of money by giving access to justice to the clients with all the money; rather we should recognize that lawyers are fortunate to have the skill set necessary to give access to the justice system, and that we make our incomes because we provide that access. We have a stable legal system but it is not up to individuals like Jordan Weisz, with huge social consciences to carry this load on their own without any signs of support from the rest of the profession. If legal aid was available for more legal issues that matter to Canadians, and if the lawyers were helping to fund this incredibly important legal work that Canadians need, then we would see some real changes.

    Finally, the pro-bono work done by the larger firms is often quite staged. There is a very confined area where pro bono work is assumed by the large firms, so as to not conflict with the perceived business interests of their corporate clients. Then the "pro-bono" label is applied to the files that are not in conflict, and used to market the firm for doing "pro-bono". However, if you scratch the surface you will find out that many firms have a minimum billing requirement, regardless of the merit of the case and regardless of no legal conflict existing to prevent taking on the file. In some firms, no partner is allowed to open a file, no matter how meritorious, unless it can generate $50,000 in billings. So imagine how few clients get through that hole. Then the public think that all lawyers act in that fashion.

    The complacency of our profession needs to be addressed. The criminal law lawyers in Ontario gave us warnings, but we need to make some structural changes in the present model of who gets access to justice. Remember that access to justice means access to a lawyer. 90% of the law administered in the country is done by the lawyers; if the public cannot afford to even see a lawyer to get legal advice and cannot make informed decisions and cannot determine if they need to use the legal system to stand up for their rights, then we are diminishing as a democracy.

    We need to make some adjustments.