Thursday, August 26, 2010

Last Year's Legal Aid Job Action: Are we any better off?

In the myth of Cumaean Sibyl, she asks Apollo for as many years as grains of sand in her hand. She is said to have lived for a thousand years while Apollo let her face and body waste away.  Of course, her mistake was she forgot to ask for eternal youth.

I was reminded of this story recently looking back at the Ontario criminal lawyers job action last year.  We withheld services in legal aid matters in key areas, particularly murder prosecutions.  The government ended up negotiating a deal with us.  Here we were, a bunch of smart lawyers, who to boot had hired another bunch of smarter labour lawyers, to obtain, in theory, a better delivery of legal aid services to the public, and more money for legal aid lawyers.  With some reservations, I wrote in an earlier blog, that I thought the deal looked pretty good.

The result was a pay increase across the board, spread out over five years, together with some kind of understanding to create a mechanism for reviewing the rate in the future. This all looked pretty good at the time. The problem was there was no committment from the government to fund these increases. It was not like we weren't aware of the funding issue because, just about the time our job action started, we complained about the inadequacy of the '$150,000,000' of additional money promised by the Ontario government.
 
All this left Legal Aid Ontario (LAO) with the task of paying out the same money in a different way.  LAO had already begun doing this in one way, and that was this:  If a legal aid applicant is not facing a jail sentence, he or she is not entitled to legal aid.  However, the process for making that determination should be static, not dynamic:  It should be based on the correct constitutional approach that does not vary with budge constraints.  Nonetheless, LAO embarked on a plan that has seen far more refusals based on that question than anytme before.  Thus, persons who were routinely granted certicates are no longer getting those certificates, leaving many more individuals unrepresented or being aided pro bono.  This was not the only change in the operation of the plan. 
 
One other has been in the reduction of discretionary allowances.  The plan has built-in tariff limits.  No kind of service is exempt.  A lawyer is expected to devote a controlled number of hours on any particular case.  For instance, the tariff limit on a summary guilty plea is six hours, including all court appearances and preparation time.  For the most serious matters, the preparation time is limited to 15 hours, but more preparation time is available depending on the number of days in court, and other tariff enhancements, including actual court time.  These can substantially increase the maximum tariff for any particular case.  For even experienced lawyers, it is not uncommon for the time expended to exceed the tariff maximum.  In my own practice, I would guess that in about 1/3 or my legal cases I spend more time than the tariff allows.  Often, it is only one to three hours, but it can be substantially more.  From my experience, and the experience of other lawyers I know or have heard from, these allowances have been practically routine.  However, this is the case no more.  On this change, I cannot yet speak from actual experience, as it appears this practice has only developed in the past few months since after the first increase took effect on February 1, 2010.  The fact is I am still waiting to have several discretionary requests processed.

Other changes also have impacted on keeping lawyer incomes down.  One little measure has been the practice of extending the period in which current certificates can be amended.  This period was previously five months.  Now it is up to a year.  This means that new matters are paid at the rate when the certificate was issued, not when it is amended. 

I hear that our association is trying to resolve these problems with the Attorney General.  This is something else for us to wait and see about.

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