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.

Showdown at High Noon: the Legal Aid Boycott

It is Monday again and I happened to have been back in the barristers’ lounge at the Windsor court with some free time.  I had more than a few minutes, while I was on a break on a case where the arguments were presented in writing and we were waiting to hear if the judge wanted something more or was just going to give her decision without further argument.  In the end she reserved.

The latest news is the settlement of the Ontario criminal lawyers legal aid boycott.  As I remember, the boycott began last spring.  It started in Toronto and then rolled out across the province, mainly involving murder and “guns and gangs” cases.  The Criminal Lawyers Association executive ended up negotiating a deal with the Province of Ontario.  What each is saying about the deal is a little different.  It is not clear now whether there will be some formal ratification vote of the members or if it will be accepted by an ad hoc consensus, but in any event, it looks to be an accomplished fact.

Most of the membership appears to be happy about the settlement, but from my perspective, I am not sure about whether I think it is a good deal or not.  I am inclined to think it is, as a lot of naysayers predicted that in this economy, there was no sympathy for criminal lawyers.  As well, our legal rate exceeds rates everywhere else in Canada. 

That said, for starters, it remains to be seen whether a proper review mechanism will be part of the new regime.  Also, although we didn't demand parity with prosecutors, the deal is shy of the original modest demands we made and it will take a full five years before the promised increases take effect.

It was really a brilliant strategy on the part of the executive to boycott only major cases.  With that approach, we were able to achieve significant solidarity.  The reality was that with most of covered cases being murder prosecutions, the accused were not getting bail anyways, and for the majority of them, time was on their side.  So most lawyers could hold firm without it impacting on their practice at all.  On the other side, the province was thus in some significant difficulty because more and more major cases were going undefended, meaning more and more prosecutions were in significant jeopardy. 

There was however a deadline that the executive set for itself and criminal lawyers were on the brink of having to enlarge their work action.  Yet that would no doubt have resulted in some loss of solidarity.  The province was in a bind too, to get their major cases on track again.  So at eleventh hour, the parties settled and there was no showdown.