2009 Legal Aid Alberta Review

Transcription

1 2009 Legal Aid Alberta Review November 19, 2009 This final report provides options to ensure that current and future service delivery of legal aid is targeting the appropriate, priority needs of Albertans. Presented to: The Honourable Alison Redford, Minister of Justice and Attorney General Presented i by: The Review Steering Committee 11/19/2009

2 Table of Contents November 19, 2009 Letter of Transmittal v Executive Summary vii 1. Introduction Legal Aid Alberta a) History and Governance b) Sustainability of Legal Aid Plans in a Changing Environment Legal Aid Alberta: Current Service Delivery Legal Aid Alberta: Funding and Expenditures a) Funding Sources and Levels b) Expenditure areas Legal Needs of Low-income Albertans a) Legal Needs Research b) Stakeholder Consultations c) Prioritizing Legal Needs d) Who are LAA s Clients? Options for Service Delivery: Part I Dealing with current realities a) Benchmarking Legal Aid Alberta b) Provide Only Mandated Services c) Restrict Eligibility for Full Representation Services d) Implement Quotas e) Overall Impacts of service changes (b) to (d) Options for Service Delivery: Part II Looking towards the future a) Tailoring Services to Meet Client Needs b) First Contact: Assessment of Legal Need c) Tailoring Services to Meet Client Needs in Practice : Pilot a Legal Service Centre. 60 d) Paralegals in Alberta e) Tailoring Services to Meet Client Needs: Outside of a Legal Service Centre e-1) Unbundled Services e-2) Enhanced Criminal Duty Counsel e-3) Family Mediation Services f) Establish Legal Clinics g) Expand Staff Offices g-1) Adult Criminal Law Office g-2) Alternatives and an Adult Criminal Staff Office ii

3 8. Options for Effectiveness and Efficiency a) Monitoring Performance b) Quality Assurance c) Roster Lawyers and Resource Facilitators d) Cost-Effectiveness Measures e) Block Contracting f) More Effective Collaboration g) Tariff Restructuring h) High Cost Case Management i) Legal Aid Rules j) Government Supports Provincial k) Government Supports Federal Options for Funding Development a) Expand Services to More Client who can Pay b) Stabilize and Increase ALF Funding c) Additional Client Payments: Interest on Outstanding Accounts d) Additional Client Payments: Application Fees e) Additional Client Payments: Increase Payments and Tighten Collections Options for Governance and Structure Concluding Thoughts Recommendations Appendices Appendix A Terms of Reference Appendix B Details of LAA Programs Appendix C Coverage Comparison Canadian Legal Aid Plans Appendix D Consultation Workbook Appendix E Consultation Report Appendix F FEG Comparison Canadian Legal Aid Plans Appendix G Expanded Duty Counsel Appendix H Staff Law Offices and Clinics An Overview Appendix I Staff Office Comparison Canadian Legal Aid Plans Appendix J Criminal Staff Office Pros and Cons Appendix K An Overview of Social Return On Investment Appendix L Tariff Comparison Canadian Legal Aid Plans Appendix M Governance of Legal Aid Plans Bibliography iii

4 15. Background and Context Papers Paper 1: Identifying and Prioritizing the Legal Needs of Low-income Albertans Paper 2: Unbundled Legal Services Brief Services Paper 3: Unbundled Legal Services Enhanced Duty Counsel Paper 4: Accessible Legal Services Paper 5: Paralegals Paper 6: Lawyer Compensation Paper 7: Quality Paper 8: Efficiency Paper 9: Alberta s Courts and Tribunals iv

5 November 16, 2009 Letter of Transmittal The Honourable Alison Redford Minister of Justice and Attorney General Province of Alberta 403 Legislature Building Edmonton, Alberta T5K 2B6 Dear Minister Redford: The Steering Committee overseeing the 2009 Review of Legal Aid Alberta is pleased to present its final report, entitled The 2009 Review of Legal Aid Alberta, which provides options to ensure that current and future service delivery of legal aid is targeting the appropriate, priority needs of Albertans. It reflects our understanding of the larger environmental factors affecting the provision of legal aid in the Province of Alberta and includes a number of recommendations which overall, outline a proposal to enable Legal Aid Alberta to weather its current funding shortfall and chart a course for the future. The Report has been reviewed and approved by the Board of Directors of Legal Aid Alberta. However, the Board recognizes that further discussions between Legal Aid Alberta and Alberta Justice are required to assess the costs, timing and affordability of putting in place those recommendations that are ultimately approved by the Board and the Minister for implementation. The Law Society and Alberta Justice representatives on the Steering Committee are signing this Letter of Transmittal in their capacity as members of the Committee and their signature does not reflect approval of the report or recommendations by the Law Society or the Minister. Respectfully submitted, Colin Kloot Chair of the Board of Directors Legal Aid Alberta Grant Sprague Assistant Deputy Minister Legal Services Division, Alberta Justice Peter Michalyshyn, Q.C. President R. Neil Dunne, Q.C. Executive Director v

6 Law Society of Alberta Civil Law Branch, Alberta Justice Glenda Graham, Q.C. Past Chair of the Board of Directors Legal Aid Alberta Jacqueline Schaffter CEO & President Legal Aid Alberta Jeanette Fedorak Senior Policy Counsel Policy Secretariat, Alberta Justice Tony Young Bencher Law Society of Alberta vi

7 Executive Summary At the request of the Minister of Justice, Legal Aid Alberta (LAA) has undertaken a complete review of the current legal aid plan of Alberta. LAA was assisted in this review by a Steering committee composed of representatives from the Ministry of Justice, Law Society and Legal Aid Board and management. The review focused on the following questions: what are the legal needs of Albertans of limited needs; how those needs should be prioritized; who LAA's clients should be; what services LAA should provide; how should legal aid be provided; what level of compensation should LAA pay to the private bar who provide the services; and what other sources of revenue or support in kind could be developed for LAA The Review provides an initial brief history of LAA and a discussion of the current legal environment in which LAA operates. Additional factors such as population growth, economic conditions, increasing pressure on government funding; the loss of significant revenues for foundations, such as the Alberta Law Foundation; changes to legislation or the legal system itself; and a reduction in the number of lawyers practicing in those areas most needed by legal aid clients have all made the environment in which LAA operates exceedingly complex. The Report concludes that the traditional method of providing legal aid services - one client, one lawyer, full representation focused on the courts may no longer be sustainable. It is suggested vii

8 that the nature of legal services must be rethought, that too many people are left with unmet legal needs. A new service delivery model must identify the needs of each client and, where appropriate, consider embracing prevention, dispute avoidance, and collaboration between the legal, social and government sectors of society. LAA provided a total of 193,700 assists in 2008/09 including representational service as well as provision of information and advice. Service volume has increased by 43% over the last five years. These services are provided through a mixed model of delivery relying predominantly upon the services of a roster of private lawyers and less so on the services of staff lawyers. The Report identifies that the other legal aid plans in Canada, with the exception of B.C., rely more heavily on the services of staff lawyers than does Alberta. One of the questions of the Review was to identify the legal needs of low income Albertans. Through a research literature review and review of a needs assessment completed for LAA, the legal problems most frequently experienced by low income persons were identified as consumer, money/debt, housing, employment, family law and relationship breakdown, income assistance and health, and estates. It is suggested that, where plans are setting criteria for prioritizing services, they consider matters such as responding to a broad range of needs, integrating delivery model issues with priority-setting processes and focusing the debate on client impact. LAA must recognize when setting priorities that there are services they are required to deliver by law and that those services will take priority over other needs, regardless of where they may rank. Serious criminal and youth defence work must be provided by legal aid plans and therefore will take precedence. LAA s Needs Assessment identified the following common viii

9 legal concerns of low-income Albertans: family law; landlord and tenant/housing disputes; government benefits (income support issues); criminal law; employment; immigration; and bankruptcy/debt. Participants in the Review s public consultations agreed that these legal problems were the most frequently faced by low-income persons. Based on the above, it is suggested that Albertan s legal needs should be prioritized as follows: Serious criminal, youth or other problems (e.g. child welfare) where LAA is required by law to provide legal services; Family law matters; Landlord and tenant/housing disputes; Income support/government benefits problems; Other criminal law matters (e.g. those where the likelihood of incarceration is small); Employment matters; Immigration matters; and Bankruptcy and debt actions. With respect to the non-family civil needs, LAA may need to explore the best ways of meeting those needs. Identifying who should be LAA s clients is exceedingly complex. Saskatchewan and Nova Scotia base their client financial eligibility on social assistance levels and Manitoba use low income cutoff (LICO) as its basis. The other Canadian plans do not appear to have an express rationale for their choice of financial eligibility. The ultimate decision as to who is in the client pool is value-laden and linked to what the decision-makers see as the role of government and of legal aid in today s democratic society. ix

10 It is suggested that the method used to identify LAA clients should be the one that can be most objectively justified, the one that is most-evidence based and transparent. The overlap of the populations with the areas of greatest or most frequent legal need (eg. issues and outcome) and the percentage of the Alberta population least able to afford legal services (income and expenditure levels) would be a target client group that could be identified from existing research and economic tools and modified in the future through subsequent experiential data analysis. Financially, LAA FEGs should provide coverage for the 20% of individuals with the lowest income in each size of household, with a higher percentage of coverage for one person households. With respect to legal problem, priority should be given to those requiring mandated services (eg. criminal and youth defence) and then to those requiring legal services in the highest ranking legal needs areas: family law; landlord and tenant/housing disputes; government benefits (income support issues); employment; immigration; and bankruptcy/debt. The general level of efficiency and effectiveness of the delivery of legal aid services in Alberta was considered by benchmarking LAA to other Canadian plans. LAA s coverage was concluded to be comparable to most other legal aid plans, with both financial and substantive coverage considered to be at or above average. Per capita, Alberta is the third lowest government funded plan in Canada and is the fifth lowest in overall funding. Expenditures for LAA are also fourth lowest for 2008/09 but Alberta will increase to fifth position among the provinces for expenditures for 2009/10. The report indicates that this is due to an overall increase in demand for service, without a corresponding increase in revenue and not due to a sharp increase in any one cost area. Administrative costs for LAA have progressed in the same ratio as other expenditures. x

11 Funding for LAA is provided by the Government of Alberta, Alberta Law Foundation, client recovery, investment income, and minimal grant income. The report identifies that LAA s total funding for 2009/10 is down 13% from 2008/09, and more than 19% below original expectations and that LAA s revenue is projected to decrease further in 2010/11 when Alberta Law Foundation funding decreases by an additional $5.05 million. As the organization faces increasing demand for service, LAA s total funding will have decreased by more than 20% over a two-year period and the funding gap could easily exceed $20 million annually. The Report concludes that the status quo cannot be maintained under this possible scenario. The Report discusses potential ways of addressing this shortfall in funding. Provision of only mandated services would result in cost savings of $35 million over a two year period however reduction in services to this minimal level of service is not a desired outcome for LAA and during public consultations for the Review was rejected as a viable alternative. All services currently being provided by LAA were seen as valuable. If only mandated services are provided, almost 180,000 Albertans would be impacted. This consequence would result in decreased access to justice and would additionally overburden the courts and other pro bono or service programs. Reduction of Financial Eligibility Guidelines (FEGs) is proposed as a viable option for reducing LAA expenditures in the future. Alberta s FEG s were increased in 2007 and 2008 giving Alberta the most generous guidelines in comparison to those other provinces with stated eligibility guidelines. Temporary reduction of the FEGS by 30% would place them more or less in the middle of Canadian eligibility guidelines, with two of the major plans having FEGs higher (British Columbia and Manitoba) and two others having FEGs which are lower than LAA s xi

12 reduced FEGs (Saskatchewan and Quebec). It would provide coverage to only 6% to 8% of the lowest-income individuals in each household size, except for one-person households of which 20% would be covered. It would allow LAA to reduce its expenditures by $5.58 million per annum. The Report stresses that although this proposal would result in a potential 6,100 individuals not receiving full representational service, a new service delivery model, the Legal Service Centre and Enhanced Duty Counsel could, if implemented, provide clients with a level of assistance. Reduction of FEGs is favored in the report as it reduces the severity of reductions that would be experienced in any specific area that might be targeted with selected substantive reductions. Choosing the temporary reduction in eligibility guidelines also maintains the flexibility to expand service again when funding circumstances improve. Throughout the consultation process stakeholders (judiciary, crown, community services agencies and the private bar) voiced strong broad-based support for the legal aid program and indicated that any further reductions to the legal plan would result in higher costs to the justice system. Keeping in mind the rippling effect any changes to LAA has on the justice system, the Review identified some key improvements LAA can make in order to continue providing service to its clients. The Report discusses the development of Legal Services Centres, with the goal being Tailoring Services to Meet Client Needs, which embodies the idea that a certificate (ie full representation) will not be the default option for service delivery but rather embrace a wide range of legal services focussing on client assessment, the use of paralegals, unbundling and collaborating more closely with partners and services providers. Reassessing of the client application process, better coordination of documentation movement within LAA and review of the need for all regional offices are also discussed as additional system improvements. xii

13 Enhancement of Duty Counsel services, piloted in Edmonton and Calgary regions, are also reported to be a viable improvement in services for LAA with a projected savings of approximately $4 million per annum. Establishment of legal clinics are also discussed as a means of better meeting the needs of low income Albertans. However the start-up and maintenance costs are seen as substantial. Legal Aid Alberta is predominantly a judicare model and the increase in the use of staff offices is discussed in the report. Research has indicated that staff offices allow for fixed salaries, and more easily controlled expenditures and efficiencies are obtained. The advantages also include a more consistent approach and improved file management. Studies have found that on a per case basis, staff lawyers are more cost effective than roster lawyers. However, the relative cost effectiveness of the two basic delivery modes is a function of three variables; the level of the tariff, the sum of costs of staff lawyer salaries, benefits and overhead, and the productivity of the staff lawyers. Where an active, experienced private bar exists, this type of service provider would likely be most appropriate. Staff lawyers may be the most appropriate where high volume and/or specialized services require a consistency of approach and focus or in geographic areas where the number of private bar lawyers may be insufficient to meet demand. The Report identifies the Wetaskiwin Region as a potential area for development of additional staff offices providing both family law and enhanced criminal duty counsel services. The area has expressed a significant need for family law services and efficiencies in staff duty counsel could be realized. xiii

14 The Report also discusses possible efficiencies that might be achieved through block contracting, better performance monitoring and quality assurance and improvement of business practices. A component of achieving sustainability through doing business better is to look at other methods of compensating roster lawyers and the Review was asked to investigate various options. Legal aid plans have many ways of paying roster lawyers. Most Canadian jurisdictions pay combination of a fixed fee tariffs and hourly rate. Ontario, British Columbia and the Maritime provinces use a tiered system based on years of call.laa also uses a combination of fixed fee tariffs and an hourly rate of $84 per hour. Lawyer dissatisfaction with tariff rates seems to be the norm, as they are uniformly much lower than market rates. Numerous reports in Canada have noted the need to raise tariff rates so that roster lawyers can be recruited and retained. Each $1 increase in the tariff rate, however, results in an increase of approximately $750,000 in LAA s annual legal expenditures. Raising rates to $125/hour would require additional funding of $30 million annually, and an increase to $150/hour would cost $50 million. Provision of a tiered tariff system would cost over $4 million if tiered by years of experience and over $2 million if tiered by case complexity. Increasing the use of block fees may be a cost neutral alternative and provide a measure of increased satisfaction for the Private Bar in the tariff. The Review also discusses the need for high cost case management which would result in possible savings as well as better risk management and mentoring opportunities. Potential government supports which would assist LAA in operating the legal aid plan are also discussed. xiv

15 The Government of Alberta provides the bulk of the revenue for LAA. Alberta Law Foundation provides 25% of their revenue each year to LAA. The above said, this Report does look at other options which may include: expanding services to more paying clients; stabilizing and/or increasing Government of Alberta funding; and stabilizing and/or expanding Alberta Law Foundation funding. The Report concludes with the following recommendations: A. Reduce LAA Financial Eligibility Guidelines by 30% to 50% to help address its funding/revenue reductions. B. Place a cap on Immigration and Refugee Services, equal to the amount of funding received from the Federal Government. C. To maintain service to those it is not assisting through its FEGs, LAA should pilot a Legal Service Center, using lawyers and non lawyers currently on staff, to be the place of first contact for the public and which will address more legal needs of low income persons by providing: Client legal need assessment services; Legal information and referrals; Legal Advice and brief services including settlement advocacy; and Connect clients to other LAA services in a seamless and effective manner. D. Identify, implement and support the use of non-lawyers, under the supervision of managing lawyers, in the provision of targeted legal services, especially in the Legal Services Center xv

16 E. Pilot enhanced criminal and family duty counsel in Edmonton and Calgary with the goal of encouraging more timely and better resolutions of client legal matters; reducing the number of full representation certificates required for lower level criminal offices and some family matters; and reducing the burden on the justice system by lowering the volumes of matters going to full hearings. F. Provide legal services in an unbundled manner wherever it would work to the benefit of the client and Legal Aid Alberta. G. Develop its own internal mediation process and alternative delivery methods to support its clients through the mediation process work with Alberta Justice and community stakeholders to develop and coordinate the delivery of these services. H. Pilot a civil legal clinic, limited to specific areas such as housing, government benefits, consumer/debt and employment, which could become a means for addressing the civil duty counsel, and continue to collaborate with stakeholders in the potential development of other legal clinics that address LAA clients unmet legal needs. I. Establish a civil law and enhanced criminal duty counsel staff office in Wetaskiwin. J. Explore innovative ways to continue to monitor LAA s performance. K. Work collaboratively with the Law Society of Alberta to develop a quality assurance program. L. Pilot, in Calgary, making Family Resource Facilitators available to roster lawyers when they are providing services to legally-aided clients in youth justice and child welfare matters. xvi

17 M. Continue to leverage technology to provide more efficient and effective services that provide clients with option for accessing LAA service, including developing a greater number of points of contact and alternatives for clients to apply for legal aid coverage (eg. through a lawyer s office, online, by telephone etc). N. Pilot block contracting for Duty Counsel services in rural or remote areas, where staff duty counsel is not feasible. O. Actively develop more formal partnerships with stakeholders eg. LAA should work together with other service providers and the Alberta Law Foundation, to explore ways in which LAA can provide the forum through which knowledge-sharing, needs identification and service delivery coordination and collaboration can occur, including development of collaboration protocols. P. Pilot the use of block fees (for certain offences or civil matters) to encourage effective decision-making and earlier case resolution. Q. Compensate roster lawyers through the introduction of a tiered system of tariff rates, based on complexity. R. Implement a High Cost Case Management program that would provide greater oversight of complex, high cost cases, and mentoring opportunities for less experience counsel. S. Given that Alberta is a resource-based economy and subject to revenue fluctuations which may be hard to predict and/or extreme, the three partners (LAA, Alberta Justice and the Law society) should address, in the upcoming renegotiation of the Governance Agreement, the issue of providing the LAA Board with more flexibility and authority to xvii

18 reallocate its approved budgeted resources, as it considers necessary to fulfill its responsibilities/obligations under the Agreement. Alberta Justice and the Law Society are partners with Legal Aid Alberta for the provision of legal aid in Alberta. It is recommended that each of the partners consider ways whereby they can be of greater assistance in improving the provision of legal aid in Alberta. The Law Society can: 1. Work with Legal Aid Alberta in exploring the feasibility of a quality assurance program for private bar roster lawyers; 2. Work with Legal Aid Alberta in the development of job and role description of paralegals within LAA; 3. Take an active role in advocating for a properly funded legal aid plan and raising the public profile of Legal Aid; and 4. Actively encourage all Alberta Lawyers to meet their professional obligation to support access to justice through legal aid. 5. Work with LAA in exploring the feasibility of reducing Law Society fees for those members of the Society who do legal aid work. The Minister of Justice can: 1. Advocate within the Government of Alberta for sustainable funding to operate the revised legal aid plan; 2. Work with the Law Society of Alberta and LAA, in the renegotiation of the Governance Agreement to address: xviii

19 a) the issues referred to in Recommendation S and Part 10 of this Report; and b) the issue of funding for court-ordered counsel as described in Part 8(k) of this Report; 3. Review with Alberta Infrastructure whether space would be available in courthouses for LAA court based service staff and in provincial buildings for all LAA offices, where possible; 4. Review, with Service Alberta whether LAA could benefit from government pricing and supply discounts; 5. Review with Alberta Finance and Alberta Pensions Services Corporation all issues in respect of LAA accessing any of the Provincial Government employees pension plans; 6. Work with LAA to explore options in regard to the use of ALF funding in LAA s in the context of LAA s annual approved budget; and 7. Continue to advocate with the Federal Government for increased federal funding of legal aid for both criminal and civil coverage areas. A chart showing the savings and cost impacts of the specific recommendations relating to changes to LAA service delivery or processes is set out below: Saving and Cost Impact Summary for 2010/11 Recommendation/Option Savings/New Revenue New Expenditures Net Impact A. Restrict eligibility - reduce FEGs i.30% reduction 5,580, ,580,000 ii. 40% reductions 8,650, ,650,000 iii. 50% reductions 11,800, ,800,000 B. Cap I&R Services 800, ,000 C. Legal Service Centre/Eliminate Opinions 173, , ,134 xix

20 Saving and Cost Impact Summary for 2010/11 Recommendation/Option Savings/New Revenue New Expenditures Net Impact D: Use of non-lawyers Not Known Not Known Not Known E: Enhanced Duty Counsel 5,556,284 1,500,000 4,056,284 F: Unbundled Services Not Known Not Known Not Known G: Develop internal mediation process 5,840,218 1,574,160 4,266,058 H: Pilot a civil legal clinic 0 300, ,000 I: Staff Office Wetaskiwin 73, , ,163 J. Monitor performance Not Known Not Known Not Known K. Develop quality assurance program Not Known Not Known Not Known L: FRFs for Roster Lawyers 0 60,000-60,000 M: Leverage technology, better access Not Known Not Known Not Known N: Pilot Block Contracting Not Known Not Known Not Known O: Partner, Knowledge-sharing forum Not Known Not Known Not Known P: Tariff Restructuring - Pilot Block Fees Cost Neutral Cost Neutral Cost Neutral Q: Tariff Restructuring - Tiering i. Tiering based on experience 0 4,248,986-4,248,986 ii. Tiering based on complexity 0 2,041,226-2,041,226 R: High Cost Case Management Cost Neutral Cost Neutral Cost Neutral S: Board resource flexibility Cost Neutral Cost Neutral Cost Neutral Aggregate Impact, with a 30% FEG reductions and Tariff restructuring by complexity $11,404,819 xx

21 1. Introduction Legal aid is an essential component of the administration of the justice system. In partnership with the Ministry of Justice and the Law Society of Alberta, Legal Aid Alberta (LAA) has undertaken a complete review of its legal aid plan in order to improve access to justice for Albertans in need. The Terms of Reference of the review are set out in Appendix A. The Review asked the following questions: what are the legal needs of Albertans of limited needs; how those needs should be prioritized; who LAA's clients should be; what services LAA should provide; how should legal aid be provided; what level of compensation should LAA pay to the private bar who provide the services; and what other sources of revenue or support in kind could be developed for LAA. A Steering Committee consisting of representatives from Alberta Justice, the Law Society and LAA provided oversight during the Review. A Review and research Team comprised of LAA Executive managers and staff, facilitated consultations with stakeholders, staff and the general public. A workbook was developed and distributed by mail and on-line prior to consultation meetings. A formal consultation process took place in July and August in six locations across the Province for stakeholders and the public. As well, LAA staff and the public were invited to provide feedback through an online consultation survey. 1

22 The final Report, which is submitted to the Minister, answers the questions listed above and outlines options to change and improve the legal aid plan for the benefit of vulnerable Albertans. It also references the research and consultation findings obtained during the Review process. The Report will be provided to the Board of Directors of LAA and the Benchers of the Law Society for their consideration and approval. 2

23 2. Legal Aid Alberta a) History and Governance Legal Aid in Alberta was officially established on July 1, 1970, by an agreement between the Law Society of Alberta and the provincial Attorney General to deal with both criminal and civil matters. After LAA was incorporated in 1973, a revised Agreement between the Attorney General and the Law Society was signed in February 1979, followed by a subsidiary agreement between the Law Society and LAA. By virtue of that agreement, the Law Society delegated the administration of the legal aid plan to LAA. The current governance agreement, signed in April 2006, recognizes LAA as an equal partner, with the Government of Alberta and the Law Society, in the delivery of the legal aid program. LAA is an independent organization incorporated under the Societies Act. However, its authority to operate a legal aid plan effectively comes by way of a contract called a governance agreement negotiated at regular intervals with the Government of Alberta and the Law Society of Alberta. Through the governance agreement, LAA is accountable to the Minister of Justice for Alberta and to the Law Society through a budget and business planning process. Accountability is also met by the provision of monthly reports, including unaudited financial statements, an annual report including the annual audited financial statements and other such information relating to the business and operations as may be requested by the Minister or the Law Society. The structure of LAA is somewhat different from other non-profit societies. While it has a Board of Directors who are responsible for governance of the organization, their decisions in critical areas of business planning and budget are subject to the approval of government. As well, 3

24 while in most incorporated bodies, only one employee the Chief Executive Officer is hired by and reports to the Board of Directors, the Legal Aid Board has three employees who report to it. They are the CEO and President, the Senior Counsel of the Youth Criminal Defence Office and the Senior Counsel of the Family Law Office. b) Sustainability of Legal Aid Plans in a Changing Environment Sustainability, in a broad sense, is the capacity to endure. It can be defined as the ability of an ecosystem to maintain into the future. It s a word that has become a wide-ranging term that is applicable to nearly every facet of life. 1 The most widely acknowledged definition of sustainable development requires that it meet the needs of the present without compromising the ability of future generations to meet their own needs 2. It contains within it two key concepts: the concept of needs, in particular the essential needs of the world s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organization on the environment s ability to meet present and future needs. Taking these concepts and applying them to legal aid, LAA must ask itself the same question that other legal aid plans around the world are asking: is the manner in which it is delivering legal services meeting the current and future needs of economically- disadvantaged citizens and society as a whole? 1 Wikipedia: 2 The Brundtland Commission (formerly the World Commission on Environment and Development), Our Common Future, (Oxford: Oxford UP, 1987), at Part I.2: Towards Sustainable Development. 4

25 Legal Aid Alberta operates within a complex environment. The legal system itself has evolved. Forty years ago, when most Canadian legal aid plans were in embryonic stages, law and the resolution of legal disputes took place in the courts. However, in those pre-charter of Rights and Freedoms days, the volume and types of matters in the courts was quite different from today. Administrative tribunals were still in their early stages as was most of the substantive law that has since developed in those non-family civil law areas in which low-income persons are most frequently involved. The law itself has become more complex, confusing and pervasive in people s lives. People do not often understand that they have a legal problem, what that problem is or how to get help. Lawyers and legal practice are increasingly under the microscope as the cost of legal services climbs beyond the reach of most citizens. Some have blamed the traditional one-on-one, reactive legal approach to dispute resolution which is costly and may not provide people with the best, most enduring outcomes. The traditional legal rights approach does not help people avoid or reduce the need to enter the legal system. More and more citizens are unable to obtain the legal assistance they need. There are increasingly alternatives to the formal justice systems for resolution of legal disputes, including mediation and arbitration. However, legal advice and representation is a necessary feature for many of these options. The growth of self-represented litigants in the court systems has become an increasing concern to all stakeholders within the legal system. While self-represented litigants have been the norm in most of the tribunals set out above, that was not the case in the courts until recently. It is suggested that self-represented litigants negatively impact the courts and put judges in the 5

26 position of having to almost advocate for them. A variety of factors may be at the root of this phenomenon across the country the reduction in legal aid funding in the mid-1990 s; the skyrocketing costs of legal representation; frustration with the legal services provided; etc. As a result, courts and governments are becoming more involved in providing legal information services and other supports to self-represented litigants. The main providers of legal services to the public continue to be lawyers in private practice. However, there are more non-profit legal services providers today than in the past including LAA, with its staff lawyers; pro bono clinics; and student legal aid societies. In addition, legal agent companies also sell their services to the public in areas such as traffic tickets and divorce. As well, paralegals are providing some services under the supervision of lawyers although the place of paralegals in Alberta legal services provision has yet to be fully explored. With all of these changes, it has become clear that the traditional method of providing legal aid services - one client, one lawyer, full representation focused on the courts is no longer sustainable 3. Research suggests that the nature of legal services must be rethought, that too many people are left with unmet legal needs and the social costs that result. It is suggested that a new model must embrace prevention and dispute avoidance, as well as collaboration between the legal, social and government sectors of society. Some services may not need to be provided by lawyers, but rather through trained paralegals. And, most importantly, citizens would receive the services they need as they need them not a one size fits all approach that assumes that full representation is the answer. This is the rationale behind unbundling legal 3 For an excellent review of the various issues around sustainability of the traditional legal system model, see Canadian Forum on Civil Justice, News & Views on Civil Justice Reform, Issue 12, Spring 2009 (Canadian Forum on Civil Justice: Edmonton, 2009). 6

27 services. Finally, leveraging technology for persons in rural and remote areas and experimenting with innovative service delivery models will be critical. For all of these reasons, legal aid plans around the world have had to look for other ways to provide services that are more effective and more efficient. LAA is no different. A final factor: the demand for legal aid is impacted by a number of societal, demographic and systemic factors that LAA has little influence over. These factors include: population growth; the impacts of economic booms and busts which disproportionally and negatively impact low-income Albertans; increasing pressure on government funding; the loss of significant revenues for foundations, such as the Alberta Law Foundation; changes to legislation or the legal system itself; and a reduction in the number of lawyers practicing in those areas most needed by legal aid clients. 7

28 3. Legal Aid Alberta: Current Service Delivery Legal Aid Alberta uses a mixed model of service delivery. Last year, LAA provided 193,000 assists to Albertans. LAA has two key goals: provide legal representation; and provide legal information and advice. Legal representation means full representation of the client by a lawyer through the entire course of a legal matter up to and including a hearing at court or tribunal. Legal information and advice may include brief services designed to resolve, reduce or prevent a legal dispute. The majority of services are provided by the private bar in what is termed the "judicare" model. Lawyers willing to act for LAA clients are listed on a roster and are issued certificates for individual cases. Their accounts are paid pursuant to the LAA Tariff, which is based on a combination of block fees and hourly payment, both less than generally charged by lawyers to privately paying clients. Participation by lawyers is voluntary. Services are also provided by salaried lawyers in Edmonton, Calgary, Red Deer, Lethbridge and Siksika. Some of the staff lawyers work as full-time Duty Counsel and some are assigned certificates for clients in which case they render shadow accounts based on the Legal Aid Tariff of Fees. Once a lawyer has been appointed by LAA, whether a private bar or staff lawyer, the solicitor-client relationship is, for the most part, as if the lawyer had been retained privately. LAA does not participate in the conduct of the client s case but may authorize certain procedures and disbursements as outlined in the Tariff of Fees. In order to obtain legal representation, a client must qualify financially. LAA uses the following financial eligibility guidelines for full representation: 8

29 FINANCIAL ELIGIBILITY GUIDELINES (Effective September 25, 2008) Based on applicant's net income Household Size Monthly Net Income Level Annual Net Income Level 1 person $1, $21, persons $2, $26, persons $3, $37, persons $3, $40, persons $3, $43, persons $3, $46, Once financially eligible, full representation will be provided only for specific legal matters. Representation is most often offered for serious criminal charges (indictable offences) and for less serious (summary offences) where there is a strong likelihood of someone going to jail or losing their job. Representation is also provided for charges laid under the Youth Criminal Justice Act, family law, or civil law cases. Examples of civil types of cases include: divorce; child welfare; custody; and immigration. In criminal appeals, there must be merit to an accused s appeal against sentence and/or conviction for coverage to be granted. Representation in civil matter is available where that matter is subject to the jurisdiction of the courts and has merit or a likelihood of success. The case must also be one which a reasonable person of modest means would commence or defend, and the circumstances at the time of application must warrant coverage. The legal costs of commencing or defending the action must be reasonable when compared with the relief sought. A legal opinion may be obtained to assist in determining merit or likelihood of success as well as the other requirements for coverage. As with criminal appeals, civil appeals must have merit for coverage to be granted. 9

30 The second type of service provision is in the area of legal information and advice. There are many avenues in which LAA provides information and referrals. For instance, the Alberta Law Line provides free legal information and referrals, and advice and brief services to lowincome Albertans over the phone. Brief services can be described as legal services, usually of less than three hours, such as assisting in document review or preparation, or contacting a third party to try to clarify or resolve the problem. Regional offices also provide information and referrals to clients who do not qualify for legal aid and most staff law offices have access to resources to which clients can be referred. In addition, Duty Counsel may provide legal information and advice as they assist clients at court. Details of the Lawyer Appointing (Certificate) Program and the Staff Legal Services Programs can be found in Appendix B. (A comparison of how Canadian legal aid plans provide services is found in Appendix C.) The following tables offer a breakdown of LAA services, first by the type of service provided and second, by area of law. Over the past five years, there has been a 43% increase in service volume. Number of Assists Type of Service 2004/ / / / /09 Certificate - full representation 36,200 37,500 36,100 36,400 41,800 Opinions 4,200 4,300 3,700 3,500 3,700 Brydges 14,100 15,900 16,800 18,700 27,500 Law Line cases 4,500 11,500 10,700 11,400 14,300 Duty Counsel 76,400 77,800 80,000 91, ,400 Total number of assists 135, , , , ,700 Number of Assists by case type Area of Law 2004/ / / / /09 Criminal Adult 103, , , , ,400 Criminal Youth 17,700 19,300 18,700 20,000 25,400 Civil 14,500 24,200 21,500 23,000 28,900 Total number of assists 135, , , , ,700 10

31 4. Legal Aid Alberta: Funding and Expenditures a) Funding Sources and Levels Legal Aid Alberta receives its funding from six sources: the bulk of funding is provided by the Government of Alberta through the Minister of Justice; the Government of Canada reimburses Alberta for a portion of LAA s criminal and immigration/refugee legal aid expenditures; the Alberta Law Foundation gives LAA an annual grant in the amount of 25 percent of the money contributed each year from interest earned on lawyers trust accounts; clients, who pay all or part of the cost of the legal services provided by LAA; government and foundations who provide project and pilot funding from time to time (for example, funding for FLO s Emergency Protection Order Program and for YCDO s website development which came from the Alberta Solicitor General and Justice Canada, respectively); and investment revenue generated from funds on hand. The following chart gives a breakdown of LAA funding by source, over the past four years, plus the current fiscal year and a projection for the upcoming fiscal year: Legal Aid Alberta Revenue Summary Revenues 2004/05 Actual 2005/06 Actual 2006/07 Actual 2007/08 Actual 2008/09 Actual 2009/10 Budget Province of 20,280,045 20,246,784 32,444,784 34,608,031 43,131,441 43,131,441 Alberta 1 Federal Government 11,617,955 10,751,216 10,751,216 10,737,969 10,678,559 10,678,559 11

32 Legal Aid Alberta Revenue Summary Revenues 2004/05 Actual 2005/06 Actual 2006/07 Actual 2007/08 Actual 2008/09 Actual 2009/10 Budget Alberta Law 2,854,653 2,411,437 5,536,940 13,374,431 14,857,540 5,900,000 Foundation Client payments 3,482,570 3,967,179 4,115,575 4,449,571 4,526,802 5,118,000 Interest and other 2 651, , ,089 1,311,027 1,232, ,190 Project/Pilot Grants EPOP 75, , , , , ,000 Immigration 100,000 76,447 85, Court Services , Evaluation Grant Student Legal ,035 12,810 Services (FLO) Total Revenue $39,062,105 $38,143,646 $53,981,447 $64,581,511 $74,581,170 $65,128,000 1 Federal funding is paid directly to the Province of Alberta and transferred to LA as part of the Provincial Grant 2 Other includes items such as funding for summer students and unclaimed client refunds. Note that these figures are calculated on an accrual basis. There is a 67% increase in LAA funding between 2004/05 actual revenues and 2009/10 projected revenues, for a total of $26,065,895. Twenty-six percent of the increase occurs as a result of the doubling of EPOP funding, the increase in ALF funding and the resulting increase in interest earned on funds in hand, and a small increase in other non-government funding. The majority of the overall increase, 88% or $22,851,396, occurs as a result of increases in the Province of Alberta grant. Prior to this increase, LAA was the third lowest funded legal aid plan, per capita, in Canada. Although funding from the Province is unchanged for the current fiscal period, LAA s total funding for 2009/10 is down 13% from 2008/09, and more than 19% below original expectations. This is mainly because of a decrease in ALF funding of $9 million, but also because the previously projected funding increase from Alberta Justice of $6 million was not 12