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

33 available. LAA s revenue is projected to decrease further in 2010/11 when ALF funding decreases by an additional $5.05 million. At the same time as the organization faces increasing demand for service, LAA s total funding will have decreased by more than 20% over a two year period. Additionally, there are no guarantees that LAA s funding from Alberta Justice will remain at current levels through 2010/11; consequently, all other things being equal, the funding gap could easily exceed $20 million annually. Clearly the status quo cannot be maintained under this possible scenario. The sustainability of LAA, in its present form, is dependent upon service delivery improvements and maintaining current government funding. b) Expenditure Areas As one would expect with a 43% increase in service volume over five years, LAA s expenditures have also risen over that time period. The major expenditures increases over this time period are: FEG increases, tariff increases, annual COLA adjustments and market adjustments to salaries, increasing staff size to meet demand, and rising occupancy costs. The following table identifies expenditures by service type: 2004/05 Actual Expenses by Core Service 2005/ /07 Actual Actual 2007/08 Actual 2008/09 Actual 2009/10 Budget Representation: FLO 4,637,657 5,032,165 5,686,483 6,638,303 7,947,467 8,995,424 YCDO 2,377,233 2,305,802 2,418,652 2,885,429 3,634,710 4,229,075 CALO 345, , , , ,574 1,003,392 Private Bar 26,382,698 30,203,207 27,688,292 28,486,849 34,033,806 38,136,000 Total Representation: $33,742,799 $37,875,161 $36,167,855 $38,494,209 $46,447,557 $52,363,891 Information & Advice Alberta Law Line $ 506,622 $ 962,340 $1,045,413 $1,624,006 $2,492,794 $2,988,376 Immigration Services 122, , , , , ,220 CALO 1-21,312 23,900 20,151 34,649 41,808 EPOP 91, , , , , ,939 YCDO 2 178, , , , , ,317 13

34 Expenses by Core Service 2004/05 Actual 2005/06 Actual 2006/07 Actual 2007/08 Actual 2008/09 Actual 2009/10 Budget Duty Counsel 552, , , ,771 1,514,008 1,624,672 LAA at Siksika Nation 141, , , , , ,920 Brydges Duty Counsel 199, , , , , ,000 Bail Representation ,000 Total Info n & Advice $1,793,735 $2,557,816 $2,767,248 $3,712,850 $5,684,248 $7,479,252 General and $2,809,896 $4,115,322 $3,887,312 $4,952,253 $6,532,278 $7,591,229 Administrative Costs 3 Representation $4,345,379 $4,921,336 $5,475,351 $6,446,797 $7,610,589 $9,232,053 Infrastructure Costs 4 Total Expenses $42,691,809 $49,469,535 $48,297,766 $53,606,109 $66,274,672 $76,666,425 1 Duty Counsel and Advice Clinic 2 Duty Counsel 3 Allocation of expenses through Corporate Services, e.g. costs for IT, Purchasing, Human Resources and Financial services, Taxation and Client Recoveries 4 Cost of Regional Offices Representation: Expenses by Core Service Civil and Criminal (Including Allocations for G&A and Representation Infrastructure Costs) 2004/05 Actual 2005/06 Actual 2006/07 Actual 2007/08 Actual 2008/09 Actual 2009/10 Budget Civil $16,838,029 $19,086,948 $17,784,288 $18,517,598 $22,302,448 $27,207,936 Criminal 23,770,727 27,307,444 27,124,008 30,394,085 36,796,924 40,090,936 Total Representation: $40,608,756 $46,394,492 $44,908,296 $48,911,683 $59,099,372 $67,298,872 Information & Advice Civil $ 662,976 $ 1,130,783 $1,256,475 $1,795,592 $2,937,577 $3,759,514 Criminal 1,420,077 1,944,360 2,132,995 2,898,834 4,237,723 5,608,039 Total Info n & Advice $2,083,053 $3,075,143 $3,389,470 $4,694,426 $7,175,300 $9,367,553 Total Expenses $42,691,809 $49,469,535 $48,297,766 $53,606,109 $66,274,672 $76,666,425 Given the above, and assuming that the figures conform to the approved budget, were LAA to continue to provide services in the way it traditionally has, it is anticipated that the projected cash flows to 2012 would be as set out in the following table: 14

35 Statement of Projected Cash Actual Budget 2008/ /10 Projected 2010/11 Projected 2011/12 Cash flows from operations Received from Province of Alberta $53,810,000 $53,810,000 $53,810,000 $53,810,000 Received from Alberta Law $14,857,540 $5,900,000 $850,000 $850,000 Foundation Client payments $4,526,802 $5,118,000 $5,344,000 $5,504,000 Interest and other 1 $1,214,553 $332,810 $680,000 $680,000 Expenditures $(66,064,430) $(76,666,425) $(80,066,864) $(83,980,154) Cash Provided by operating activities $8,344,465 $(11,505,615) $(19,382,864) $(23,136,154) Cash flows from investment/financing Capital purchases (net of disposals) $(3,397,901) $(2,905,200) $(2,250,000) $(2,250,000) Plus depreciation $1,367,446 $2,256,004 $2,183,338 $2,227,537 Net capital $(2,030,455) $(649,196) $(66,662) $(22,463) Increase (decrease) in cash & term $6,314,010 $(12,154,811) $(19,449,526) $(23,158,617) deposits Cash & term deposits, beginning of $20,900,127 $27,214,137 $15,059,326 $(4,740,200) year Cash & term deposits, end of year $27,214,137 $15,059,326 $(4,390,200) $(27,898,817) 1 It is anticipated that interest rates will begin to go back up in 2010/11, although not to the levels seen in 2008/09. Note that these amounts are calculated on a cash basis, attributed to the year in which they will actually be received. 15

36 5. Legal Needs of Low-income Albertans The need for Legal Aid Alberta to examine the legal needs of the low income population is key to examining whether it is providing the right services to the right people. LAA undertook this examination through exploring legal needs research and by consulting with its stakeholders. a) Legal Needs Research Legal needs research over the past 15 years has focused on identifying the legal problems of everyday life. Studies from Alberta, Canada 4 and the Commonwealth countries have similar findings: People frequently have legal problems in their lives Legal problems are more numerous and the consequences more severe for specific groups such as low-income persons or those with disabilities Legal problems cluster in specific patterns and are triggered in specific ways Legal problems are interconnected with social problems Unresolved legal problems lead to other legal, social or health problems. The legal problems most frequently experienced by low income persons are (not in priority order) consumer, money/debt, housing, employment, family law and relationship breakdown, income assistance and health, and estates. Criminal offenders have more civil justice problems than non-offenders and those civil justice problems may be triggers for the criminal problems. Research relating to clusters of legal problems and issues which trigger legal problems has found that early intervention can reduce the likelihood of multiple problems, 4 See Prairie Research Associates (PRA) Inc., Legal Aid Alberta Needs Assessment (LAA: Edmonton, 2007) and Evaluation of the Family Law Expanded Duty Counsel Pilot Projects: Final Report (Legal Aid Ontario: Toronto, 2002). 16

37 reducing the need for and cost of legal services. Some areas of legal need such as social benefits issues have not been well researched. A more detailed examination of the needs of low-income Albertans can be found in the Context Paper, Identifying and Prioritizing Legal Needs, at the end of this Report. b) Stakeholder Consultations A comprehensive stakeholder consultation process was performed in July and August 2009, throughout the Province of Alberta, to obtain feedback and guidance on how LAA could improve service and better meet the needs of clients and stakeholders within the justice system. Marcomm Works, an Edmonton consulting firm, was contracted in June 2009 to implement the consultation plan. The consultation approach enabled organizations and professionals in the field, clients and other interested people to review and comment on a variety of operational and programming options. These options were contained in a Consultation Guide written and produced by LAA. The guide also provided background on Alberta s legal aid plan and results of research into approaches taken by other jurisdictions. Questions were added to focus and stimulate feedback. The guide was posted on the Internet. Consultation elements were: One-on-one interviews with nine key stakeholders; Written submissions from individual Albertans, organizations, the legal community and LAA staff; Four focus groups, two each in Calgary and Edmonton. Two of the groups involved former or current legal aid clients. Two groups involved individuals who may need legal aid services in the future; 17

38 An on-line survey posted from August 5 to August 28, 2009; and A total of eight roundtable sessions in Red Deer, St. Paul, Edmonton, Calgary, Lethbridge and Grande Prairie. The roundtables, survey and focus groups were arranged and conducted by Marcomm Works. One-on-one interviews were arranged by LAA but a Marcomm consultant participated in the interviewing. The following findings on legal needs came from the consultations: Participants agreed the list of legal problems noted in the guide are the most frequently faced by low-income persons; Family law and relationship breakdown, and alcohol and drug addiction (within the category of health) were considered by far the most prevalent; and Immigration and mental health issues were mentioned by a number of respondents as other legal needs. The Consultation Workbook and full Consultation Report can be found in Appendix D and E, respectively. LAA has taken the results of the research process together with the stakeholder consultation findings and developed a number of options for better meeting the legal needs of Albertans and enhancing the overall efficiency and effectiveness of the legal aid program. For instance, currently, LAA expends 60% of its annual expenditures in criminal law matters. However, criminal law is not an area of high legal need for low-income persons. Civil (both family and non-family) matters have a greater impact on persons lives and the consequences can be as or more severe (e.g. loss of employment or income; loss of children; loss 18

39 of housing; health problems; triggering of other civil and criminal legal needs; etc.) 5 By focusing services on the actual legal needs of low-income Albertans, LAA will need to find more cost-effective ways to provide criminal legal services and shift the balance of its expenditures from criminal to civil matters. Options such as expanded Duty Counsel services and a focus on the interconnectedness of criminal legal needs to other socio-legal needs may ultimately help to shift the balance and provide better client outcomes. c) Prioritizing Legal Needs Traditionally, Canadian legal aid plans first service delivery priorities are based on Charter, legal and contractual guarantees to representation. The courts have determined, in complex criminal cases and in child welfare, cases that governments have an obligation under the Canadian Charter of Rights and Freedoms to fund or provide a lawyer for an individual, where he or she is unable to pay for one and where a fair hearing would not otherwise be possible. 6 As well, the courts have also found that persons detained by police have a right to immediate access to legal advice by telephone, resulting in the Brydges Duty Counsel service. 7 Other statutory rights to government-funded legal assistance relate to the right to legal advice and representation within the Youth Criminal Justice Act 8 and certain sections of the Criminal Code (e.g. persons with mental disorders who are unfit to stand trial and some criminal appeals). The Federal Government has also placed specific obligations on Provincial Governments, with respect to legal aid, through the Federal Provincial Contribution Agreement. The Federal Government contributes toward the cost of criminal, youth and immigration/refugee legal aid. As 5 Richard Moorhead, Coping with Clusters? Legal Problems Clusters in Solicitors and Advice Agencies (paper presented at the International Legal Aid Group Conference, Cardiff University, 2007) at 2-4, hereafter Clusters. 6 See New Brunswick (Minister of Health and Community Services v. G.(J.), [1999] 3 S.C.R R. v. Brydges [1990] 1 S.C.R Youth Criminal Justice Act, S.C. 2002, c. 1, s

40 a result, provinces enter into an agreement with their respective legal aid plans to ensure that the services for which the Federal Government is making contribution are provided through the plans. In Alberta, these requirements are set out in the Governance Agreement between the Ministry of Justice, the Law Society of Alberta and the Legal Aid Society of Alberta. Finally, some legal aid plans, such as Ontario, have specific legislation setting out their mandated areas of service. 9 Where legal aid plans provide services over and above these required services, they often identify the criteria to be used for prioritizing those additional services. The Report of the Ontario Legal Aid Review suggests eight themes which are important for this purpose: Undertaking consultations and environmental scanning of needs; Responding to a broad range of needs; Employing strategic oversight at the system-wide level coupled with responsiveness to local conditions; The limitations of using the negative liberty test [for criminal law] in setting service priorities, as it can leave other equally deserving legal needs unaddressed; Integrating delivery model issues with the priority setting process; Focusing the priority setting debate on client impact; Using resources strategically to facilitate access to justice; and Subjecting priority setting to revision in light of experience in an evolving social and legal environment See for instance, section 13 of the Legal Aid Services Act, 1998 (S.O. 1998, Chapter 26) which requires Legal Aid Ontario to provide services criminal law, family law, clinic law (i.e. certain areas of non-family civil) and mental health law. 10 Michael Trebilcock, Report of the Legal Aid Review 2008 (Ontario), at p. 10, pp

41 The Report notes that a lack of legal services can affect the short- and long-term emotional, financial and physical well-being of clients and their families. Often, the legal services required to be provided by legal aid plans under Charter, statutory and contractual requirements consume most, if not all, of a plan s resources. However, the benefits of alternative service delivery methods and new knowledge around the manifestation and impact of unmet legal needs suggests that governments and plans may need to look at additional criteria for setting service delivery priorities. As the values of legal aid are plural, David Dyzenhaus suggests that funding allocations be highly provisional, subject to an ongoing institutionalized process of evaluation... He suggests that four factors should be considered when determining whose needs should be met through legal aid: the impact of moving resources from other areas; the least expensive way of meeting the need effectively; experimentation with different service delivery models; and the possibility that the need can best be addressed through government and the legislature, rather than through individualized legal aid services. 11 Legal aid plans may also set priorities based on the outcomes they wish to achieve. For example, Australian legal aid commissions have focused on better outcomes for children, clients and the court system in the design and implementation of their Family Dispute Resolution Services. 12 An evaluation by Australia s Attorney General found that by using non-litigation approaches, the service provided a timely, less adversarial and lower-cost way of resolving family disputes. As the screening and intake procedures became more sophisticated, two other positive outcomes occurred: better and more meaningful referrals to other service providers; and 11 All quotes taken from David Dyzenhaus, Normative Justification for the Provision of Legal Aid in Background Papers (Ontario Ministry of Attorney General and Justice: Toronto, 1999) at pp KPMG. Family Dispute Resolution Services in Legal Aid Commissions: Evaluation Report, (Canberra: Attorney-General s Department, 2008). 21

42 the early identification of cases involving family violence or child protection issues. The commissions themselves benefited from some significant cost reductions, as well. It is anticipated that an increase in the provision of these services may also reduce the current backlog of family law cases experienced in the Family Court of Australia and the Federal Magistrates Court. What does this mean for how legal aid plans set priorities? Should legal aid plans look at achieving best outcomes for clients? If so, how are best outcomes to be defined for a criminal law client? Much of the research and evaluation of legal aid services suggests that early intervention, to avoid triggers and additional clusters, could reduce legal services costs and possibly free up resources to serve additional needs. 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. 13 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. For instance, serious criminal and youth defence work must be provided by legal aid plans and therefore will take precedence. LAA tied this principle into the reasoned-approach used to revise its FEGs in Since most criminal matters come from clients in single person households, LAA maintained a higher percentage of coverage for that household size than it did for larger households. It realized that if it did not provide more coverage, it would simply be required to provide it through court-ordered counsel. Only after prioritizing those services 13 Trebilcock, Note 10, p

43 required by law can LAA look at setting priorities based upon the most identified legal needs, on client impact or any other factor. LAA s Needs Assessment identified the following common legal concerns of lowincome Albertans 14 : Common legal concerns or problems Community and government organizations (n = 131) Experienced by your Underserved population Income < $50,000 (n = 402) Experienced by people you know clients None -- 14% Family Law 85% 53% Criminal law 60% 26% Problems receiving government benefits 60% 29% Landlord and tenant/housing disputes 51% 30% Legal issues with employment 41% 19% Immigration matters 31% 18% Bankruptcy and debt actions 31% 16% Legal issues with buying goods or 20% 11% services Wills and estates 2% -- Guardianship/trusteeship 2% -- Other 8% 5% Don t know/no response 1% 1% Note: Respondents could provide more than one answer. Totals sum to more than 100%. The rankings differ somewhat depending upon whether the numbers reflected community and government organizations perspectives of their clients experience or the experience of Albertans making up the underserved population with incomes of less than $50, The top seven legal problem areas were the same for both groups: family law; landlord and 14 Prairie Research Associates (PRA) Inc, note 4, p. 24, Table To gather information on the legal issues experienced by lower income Albertans, PRA conducted a general population telephone survey anchored on postal codes with low to medium incomes. Over 9,500 telephone numbers were called. In total, 640 individuals completed the survey. Of those, 400 had annual household incomes below $50,000 from Prairie Research Associates (PRA) Inc, note 4, p. i. 23

44 tenant/housing disputes; government benefits (income support issues); criminal law; employment; immigration; and bankruptcy/debt. Family law was ranked first in both groups. For government and community groups, criminal law was second, tied with government benefit problems; underserved low-income Albertans placed criminal law fourth and government benefits problems were third. Landlord-tenant/housing disputes were ranked fourth by government and community groups and second by low-income Albertans. The remaining three areas - employment; immigration; and bankruptcy/debt came in at fifth, sixth and seventh spot in both rankings. LAA presented the legal needs research undertaken for the Review to stakeholders during public consultations and asked them to verify and prioritize the legal needs outlined in the research. As noted above, participants in the Review s public consultations agreed that the list of legal problems noted in the guide were the most frequently faced by low-income persons, with family law and relationship breakdown, as well as alcohol and drug addiction being considered the most prevalent. For the overwhelming majority of stakeholders who responded, whose interests lay largely in criminal and family law areas, LAA is not seen as dealing with broad areas of non-family civil law. As such, the consultations affirmed the need for LAA to provide it current main areas of coverage. 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; 24

45 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. d) Who are LAA s Clients? Identifying the potential pool of LAA clients is more than identifying who is currently walking in the door. While this will provide some answers, it does not lend itself to either evidence- or value-based decision-making. There are many reasons why potential clients might not come to LAA. Some are related to the actions and decisions of LAA in setting financial and substantive eligibility guidelines and the communication of changes to them; others to factors central to the clients, such as illiteracy, disability, gender, language, culture and poverty itself. What does this leave? The potential pool of LAA clients can be defined by two factors: financial situation, and substantive legal issue. Defining the potential client pool by financial or substantive legal issue criteria is a complex undertaking, as the two criteria are often interdependent. These factors will themselves be impacted by how legal need, dispute transformation/resolution and issues of prioritization are understood by those who ultimately decide who is in this pool. 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. 25

46 LAA commissioned a report on financial eligibility guidelines in 2008 to assist in developing a reasoned approach to determining financial eligibility 16. The report noted the challenges of identifying a target population for legal aid. Traditional descriptions such as people in need, low-income Albertans and persons with insufficient means do not assist in identifying or quantifying these groups. Certain methods of calculating FEGs can be more useful than others, e.g. use of net income versus gross income to more accurately reflect purchasing power of legal services or lack thereof; or use of a cut-off that reflects a certain percentage of the population to avoid arbitrariness. However, determining the actual percentage of Albertan households to be targeted or the items used to calculate net income, have been decided by the amount of available budget, rather than on any broader value-laden criteria. In other words, FEGs and funding constraints will determine who is eligible, not who should be eligible. When LAA raised its FEGs in 2008, it did so using a principled-approach based on the research and the study it commissioned. It found that, under its 2007 guidelines, which were based on gross income, almost 40% of one-person households in Alberta are eligible for legal aid, compared to 20% for two-person households, around 11% for three or five person households, but only around 7% for 4-person and 6-person households. Taken together, this evidence strongly suggests that while the current FEG may be very effective for one-person households, this is not the case for larger households....[the] relatively small number of certificates issued to larger household sizes is certainly consistent with [this]. 17 As a result, the FEGs were changed in two main aspects: The basis for calculating income was changed from gross to net, as net income better reflects the ability of households to pay legal services; and 16 All references, unless otherwise noted, are from David L. Ryan, Review of Financial Eligibility Criteria for Legal Aid Alberta (LAA: Edmonton, 2008). 17 Ryan (2008), p. i-ii. 26

47 The FEGs were revised to include a higher percentage of larger households. This also should increase the balance between criminal and civil cases, as most criminal certificates are issued to one-person households and most civil to households with two or more persons. As a result of these changes, the following percentages of households became eligible for LAA coverage: Household Size Percentage of Albertans covered 2007 FEGs Revised 2008 FEGs 1 person 40% 40% 2 persons 20% 21% 3 persons 11% 18% 4 persons 7% 13% 5 persons 11% 18% 6+ persons 7% 19% It was anticipated that further improvements to the FEGs would be made in the future, including exploring a move to a net disposable income model. A number of possible approaches could be used to determine which groups of Albertans should be financially eligible for legal aid determining who cannot afford legal fees, lowincome or poverty measures such as Low Income Cut-off (LICOs) or Low Income Measures (LIMs) which measure the amount of money a household would require for necessary expenditures; Market Basket Measures (MBMs) which measure a household s ability to purchase specific basket of goods and services. 27

48 Unfortunately, all of these measures involved some subjective judgments 18. Initially, LAA tried to target 20% of each household group, with the exception of one person households. It should be noted, however, that LAA s 2008 revised FEGs resulted in levels of coverage that were higher than LICO cut-offs, for all households. Other guidance can be found from the ways in which other legal aid plans make their decisions as to their potential clients. Appendix E highlights the Financial Eligibility Guidelines implemented by Canadian legal aid plans. Two of the plans, Saskatchewan and Nova Scotia, base their financial eligibility on social assistance levels. Manitoba uses the low-income cutoff (LICO) as its basis. It could be said that these three plans limit their potential pool of clients to the poorest of the poor. The other Canadian plans do not appear to have an express rationale for their choice of financial eligibility levels. As was noted in a 2002 report, Legal Aid Eligibility and Coverage in Canada, There is no strict definition of poverty that is applied across all the plans. An applicant on social assistance would qualify in almost all jurisdictions. Beyond that point, the plans vary. The financial eligibility guidelines of most plans fall below the low income cutoffs. Families in rural areas and small communities would be more likely to qualify under most plans guidelines. 19 Some European plans, and legal aid in Hong Kong, cast a broader financial net. For instance, it is estimated that the United Kingdom s Citizen Advice Bureaus, a collaborative service with U.K. s legal aid plan, provides advice and brief services to three-quarters of citizens. Hong Kong s legal aid plan provides services to 90% of its citizens, through the use of a selffunded scheme for middle- and upper-income persons. And, traditionally, most European legal aid plans have provided services to middle-income persons. 18 David Ryan, Determining Who Should Qualify for Legal Aid in Alberta (draft) (LAA: Edmonton, 2009). 19 Spyridoula Tsoukalas and Paul Roberts, Legal Aid Eligibility and Coverage in Canada (Justice Canada: Ottawa, 2002) at p

49 Determining who forms LAA s target client group from a substantive legal issue perspective is equally value-laden. As noted earlier, one could prioritize legal needs from a variety of perspectives the most frequent client legal needs, those legal issues that trigger or cluster other needs, which legal issues would have the greatest impact upon a person or the resolution of which would have the most beneficial outcome, or which needs impact the justice or other systems most greatly. Even here, however, the financial targeting of a group will often be interdependent with the substantive legal issues. Ultimately, the choice comes to one of values. It is suggested that the choice made 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 (e.g. 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. LAA s clients should be targeted based on financial situation and type of legal problem. The Terms of Reference for this Review included identifying the legal needs of Albertans. This leads to the assumption that LAA services should be targeted to those legal needs. 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. This will capture individuals receiving government assistance as well as the working poor. It would keep FEGs above LICO rates, provide equity for individuals in different family sizes and take into account the need to provide legal services which are required to be provided by law. 29

50 With respect to legal problem, if the above assumption is correct, priority should be given to those requiring mandated services (e.g. 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. 30

51 6. Options for Service Delivery: Part I - Dealing with Current Realities One of the questions asked in this Review is how Legal Aid Alberta should provide its services. For that reason, it was necessary to review its performance as well as examining different models of staffing and service delivery. a) Benchmarking Legal Aid Alberta Legal Aid Alberta has researched and analyzed LAA s performance to assess the general level of efficiency and effectiveness of the delivery of legal aid services in Alberta. Although the short time frame imposed for the completion of the organization review limits the depth of analysis, an assessment of efficiency and effectiveness can be achieved by comparing service delivery coverage, costs, and funding of LAA with other provinces across the country. However, variations in coverage, service delivery models and other operating features must be taken into account when comparing legal aid plans. Appendix C highlights and compares Canadian legal aid plans coverage. An in-depth benchmarking evaluation and comparison of LAA to other Canadian legal aid plans was previously performed by Prairie Research Associates (PRA) in At that time, PRA concluded that LAA s coverage was comparable to most other legal aid plans, with both financial and substantive coverage considered to be at or above average. Although the report is now 4 years old, many of the conclusions and recommendations are still relevant today. There have been only minor changes to service delivery/coverage across the country since that time, so LAA has updated this comparison for the 2009/10 fiscal year with the results shown below. (It should be noted that the Yukon, the North-west Territories and Nunavut which had the highest 31

52 per capita revenue and expenditures have been removed from the comparison to prevent these small plans from skewing the results.) $30.00 $25.00 $20.00 $15.00 $10.00 $5.00 $- $9.13 Per Capita Government Funding 2009/10 $11.78 $14.73 $15.45 $16.70 $17.61 $18.00 $18.51 $20.41 $22.33 $23.27 $27.70 The chart indicates that Alberta receives the third lowest amount of government funding. LAA would require an almost 20% funding increase (from roughly $54 million to just over $64 million) in order to reach the Canadian average, and a 22% increase (from roughly $54 million to almost $66 million) to reach the median level of government funding for legal aid across Canada. As additional points of reference, LAA compared total revenues as well as total expenditures by province on a per capita basis. The results are shown in the tables below: 32

53 $30.00 $25.00 $20.00 $15.00 $10.00 $5.00 $- Projected Per Capita Funding - All Revenue Sources 2009/10 $22.38 $22.94 $25.29 $20.90 $19.37 $19.42 $16.96 $17.03 $17.82 $12.31 $9.49 $28.48 Per Capita Expenditures 2008/

54 Per Capita Projected Expenditures 2009/ On the basis of 2009/10 total revenues and 2008/09 total expenditures, Alberta falls below both average and median levels. However, on the basis of 2009/10 projected expenditures, Alberta is slightly above the Canadian average but below median levels. The way in which this revenue-expenditure gap came about can be illustrated by the following graph: 34

55 90,000,000 LAA Revenues and Expenditures 80,000,000 70,000,000 60,000,000 50,000,000 40,000,000 30,000,000 20,000,000 Revenue-All Sources Direct Representational Costs General & Administrative Total expenditures 10,000, /05 05/06 06/07 07/08 08/09 09/10 Fiscal year Total expenditures were higher than revenues in the 2004/05 and 2005/06 fiscal years. As a result of a three-year Sustainability Plan, developed by LAA and approved by Alberta Justice, revenues were increased beginning in the 2006/07 fiscal year. These increases closed the expenditure gap and allowed LAA to effectively provide services and meet rising demand. Some of the aspects of the plan which allowed LAA to do these things were: increase the FEGs; increase the number of direct service staff, both lawyers and non-lawyers; and increase staff lawyers salaries to bring them into parity with Government of Alberta lawyers. However, the Sustainability Plan was based on a number of assumptions which have since led to the creation of the current revenue-expenditure gap. All of the anticipated revenue increases, to cover the approved increase in FEGs, did not materialize and ALF funding significantly decreased. Since the economy has soured, more people have needed LAA services than anticipated and fewer who are able to pay back the costs of their services. As well, private bar full representation costs have increased by 20% from 2007/08 to 2009/10. 35

56 Utilizing the above statistical information, and assuming LAA s total revenues from all sources and total expenditures were aligned with median or average levels, projected revenues and expenditures would be: Benchmark Projections Pro Forma Revenue Population Per Capita Benchmark Total Revenue LAA Budgeted Revenue 2009/10 3,653,840 $17.82 $65,128,000 Pro Forma Revenue Using Canadian Average 3,653,840 $19.37 $70,774,881 Pro Forma Revenue Using Canadian Median 3,653,840 $19.42 $70,957,573 Benchmark Projections Pro Forma Expenditures Population Per Capita Benchmark Total Expenses LAA Budgeted Expenditures 2009/10 3,653,840 $21.05 $76,913,832 Pro Forma Expenditures Using Canadian Average 3,653,840 $20.01 $73,113,338 Pro Forma Expenditures Using Canadian Median 3,653,840 $21.38 $78,119,099 It should be noted that in 2008/09, Alberta was the fourth lowest in expenditures and placed below both the median and the average. Projected 2009/10 expenditures would move it up one place, above the average but below the median level. As discussed earlier, LAA is facing a $9 million reduction in funding for the current year, a 13% reduction over its previous year s budget. There will be a funding deficit of $20 million in the year, if all other funding and expenditures remain the same. Options for service and operations changes to deal with the current reality could include: Provide only mandated services and eliminate all non-mandated services; Restrict eligibility for full representation services, the certificate, by temporarily reducing the income and asset levels for qualified clients; Eliminate the Bail Representation Program, which has been suspended by the Province. Should it be reinstated, and additional funding not provided to LAA, the Program will be eliminated; and 36

57 Establish a monthly quota system for certificate applicants. These options, with the exception of the one relating to the Bail Representation Program, were presented to LAA s major stakeholders, who were consulted to assist in identifying potential target areas for cutbacks. Although the consultation process was beneficial, no specific target areas were identified. Instead, stakeholders indicated that all possible options were unpalatable and would entail serious consequences for the justice system and for Albertans in need. b) Provide Only the Mandated Services Currently, LAA provides a range of services, including duty counsel in family and criminal court, a telephone legal advice hotline, and family law services. Some of these services are mandated in that LAA is required to provide the service by law and/or by agreement with government(s). In order to meet its budget shortfall, LAA could eliminate all non-mandated services. Mandated services, required by law or pursuant to the agreements with government, that would be continued: Court-appointed counsel for youth and adults in Provincial Court Criminal Division; Free legal advice to persons under arrest and/or who are being detained (Brydges Duty Counsel); Counsel for complainants and witnesses under some sections under the Criminal Code, as well as for fitness hearings; Counsel for children in high conflict situations if it is deemed necessary to protect the best interests of the child; 37

58 Counsel for parents in child welfare situations; Representation of persons charged with serious criminal matters under the Criminal Code of Canada, the Youth Criminal Justice Act and the Controlled Drugs and Substances Act; and Immigration and refugee matters. The following are services that would be terminated or downsized. Included is the impact of the termination of these services. Duty counsel at criminal and youth courts: Duty Counsel (DC) has become integral to the administration of justice. Alberta Courts depend on the services of DC to provide access to justice to unrepresented litigants and to ensure the smooth operation of the courts. This said DC is not a mandated service. LAA has stated that it should not be in the business of providing DC that it should be a service provided by Alberta Justice. Stakeholder consultations were strongly opposed to any cuts to the DC program. The costs savings should LAA discontinue providing DC services in Alberta Courts is approximately $6.2 million over two years. Although there would be an immediate savings, cutting the DC program would mean that 123,000 more Albertans would be unrepresented in court. This would create immeasurable delays in the courtroom, increase administrative costs to Alberta Justice, and ultimately mean greater costs to LAA as under its current service delivery, clients whose issues are resolved by DC (guilty pleas, etc) would be seeking a full legal certificate for representation a more costly alternative. Eliminate the Alberta Law Line (ALL), including its partnership with Alberta Justice s Legal Information Centres and the Alberta Council of Women s Shelter: The Alberta Law Line (ALL) has become an instrumental LAA program that is accessible by all Albertans. ALL is a program of LAA that provides free legal information and referrals to 38

59 Albertans over the phone. To those who are financially eligible, it also provides advice and brief services, which includes some settlement advocacy mainly in non-family civil areas. The Law Line also provides direct advice to unrepresented litigants who utilize the Law Information Centres and to eight Alberta women s shelters. Law Line is a LAA program that provides services that meet the real legal needs (consumer, money/debt, housing, employment), of low-income Albertans (as indicated in the legal needs research). Elimination of this program would save LAA $3.5 million over the next two years. However, in using the prioritization guidelines previously outlined, the Alberta Law Line undertakes to meet the environmental scanning of legal needs; responds to a these broad range of needs; and responds to local conditions which meets the current goal of LAA by providing legal information and referrals. Eliminating ALL would mean a discontinuation of service to over 14,000 Albertans. Central Alberta Law Office, except for youth duty counsel, child welfare and children s counsel for high conflict children s custody and/or access disputes: The Central Alberta Law Office was developed to meet the legal needs of Central Alberta. Due to the lack of availability and participation of the Central Alberta bar in taking legal aid files, Albertans in the geographic area were underserviced prior to opening of CALO. CALO case files have nearly doubled in the past year, hence indicating a greater need for its services. Eliminating the majority of services that CALO offers would provide a $1.2 million savings to LAA over the next two years; however, over 1,600 Albertans would not receive legal services in a region that is already under serviced by the legal community. Family Law Office, except for child welfare and children s counsel for high conflict children s custody and/or access disputes: Family Law has been deemed as the most 39

60 prevalent area of law that low income Albertans need assistance with. It is an area of law that is complex and emotional for those involved in it. For these reasons fewer lawyers are practicing in family law. Add this to the marginalized circumstances that LAA clients' face, it is an area of law that fewer lawyers are willing to take LAA files in. The Family Law Office has become a necessary component of LAA service delivery. It is also meets the legal needs of its clients in that it recognizes that legal issues cluster and that there are certain triggers that can lead to more legal issues. With this in mind the Family Law Office provides the services of social workers to meet the needs of each individual client. Eliminating the nonmandated services (both non mandated coverage and social workers) of FLO would save LAA $5 million over the next two years; however, eliminating this service would not only will impact over 3,400 Albertans currently using its services, it will also create greater costs the justice system when all of its clients go unrepresented in the family courts. Because of the shortage of family law lawyers LAA sees the need to maintain the infrastructure of FLO so that it would be able to continue taking mandated files. Legal Aid at Siksika First Nations, except for duty counsel at criminal and youth courts: Legal Aid Alberta (LAA) at Siksika Nation is a joint program of the Siksika Justice Department and Legal Aid Alberta that provides Siksika Nation members (primarily) with a wide range of high quality legal services. Legal services provided by LAA at Siksika Nation are provided in a manner that gives meaningful consideration to Siksika and/or Aboriginal culture and values. It is the only LAA program specifically tailored to meet the needs of this unique population. Eliminating this program would save LAA $590,000 over the next years; however service to over 1,800 living at the nation would be terminated. 40

61 All family law coverage, except for child welfare and children s counsel: As indicated above family law is the most prevalent of legal problems faced by low-income Albertans. LAA family law is not only serviced by the Family Law Office but it is also provided province-wide by the private bar. Eliminating this essential coverage would save LAA approximately $3.8 million but would deprive nearly 3,800 Albertans from family coverage beyond what is mandated. This would result in similar impacts as was seen in eliminating FLO, in that cost would be incurred at the court services level as justice attempts to deal with these unrepresented family law litigants. All services and programs at the Youth Criminal Defence Office which do not provide one-on-one direct mandated legal services to youth. Discontinued services would include all public legal education and community outreach programs and services provided by social workers: LAA recognized that youth are a vulnerable group of Albertans who require specialized representation and support services. The YCDO is a unique model of service delivery that targets vulnerable youth. It has become one of the most recognized and acclaimed service delivery models for youth in the country. Elimination of the non-mandated services provided by the YCDO would save LAA $500,000 over the next two years; however, elimination of the non-mandated services provided by the YCDO would negatively impact the recovery rate of these youth offenders, hence compromising the public s perception of the effectiveness of the justice system. The impact of YCDO s outreach is difficult to measure, but without the holistic approach that the YCDO provides via its social workers, and because there is not currently a shortage of criminal bar lawyers who would be able to represent youth (albeit not as effectively as the YCDO has proven it can do) LAA would be just as able to provide youth coverage via the private bar, rather than 41

62 through the YCDO staff office model, hence saving LAA another $2.2 million per year. This cost-saving aside, as mentioned, the YCDO (through its 15 years of targeted practice and gained expertise in representing youth) has proven that it provides high quality representation to youth. All non-family civil law coverage: The legal needs research indicated that non-family civil law coverage is one of the most common legal needs of low-income people. Elimination of LAA non-family civil coverage would save LAA $3 million per year (based on 3,000 certificates in 08/09); however, the purpose of providing access to justice by meeting the legal needs of Albertans would be lost. Stakeholder consultations indicated that the legal needs research was correct in identifying low-income legal needs. LAA certificate coverage of non-family civil is already limited, and eliminating further coverage would not meet the legal needs of LAA target clients. Immigration and Refugee Coverage: While Immigration and Refugee Services are currently mandated under a federal/provincial contribution agreement, these services would likely be terminated because LAA is not being fully reimbursed to provide these services. However, the Province would have to forego the immigration/refugee related money under the federal-provincial agreement if these services were not provided. Alternatively, LAA could provide services up to the amount contributed by the Federal Government for these services. In 2009/10, this will be $388,000; saving LAA $800,000 in Immigration coverage should it decide to cap coverage to what the Federal government provides. Emergency Protection Order Program: LAA staff lawyers and the private bar help victims of family violence through the Emergency Protection Order Program (EPOP). LAA receives $150,000 from the federal government for its EPOP program, but invests an 42

63 additional $200,000 per year to run the program successfully. Should LAA choose not to operate this specialized program, it could save this $200,000 but 1,600 clients would be impacted. Family violence in Alberta has greatly escalated in the past few years. The Emergency Protection Order Program provides clients with information and lawyers that can help them to obtain and confirm protection orders. These lawyers are staff lawyers that work at the Family Law Office and who attend court on a daily basis to represent clients who have experienced violence in their lives. The EPOP also provides ongoing information, risk assessments, and safety plans to victims of family violence. Free legal advice to persons under arrest and/or who are being detained (Brydges Duty Counsel): Access to free advice to persons who have been arrested and/or who are detained is a required under the Charter. Currently LAA delivers Brydges via a contractor, 24 hours a day, 7 days a week, costing LAA $277,000/year. LAA is required to provide this service but can change the method it uses. It could discontinue its direct, contracted service and hand it over to the private bar. Administration of a list is not something LAA is eager to undertake, as past experience has shown that many members of the private bar, while saying they wish to be on a Brydges list, fail to make themselves available 24 hours a day and complaints are frequent. LAA has no authority over the private bar, but stakeholders such as the police expect it to be accountable. The table below shows the impact on the number of clients and the cost savings of this option: 43

64 Legal Service Areas Possible Non-Mandated Services Reductions Clients Savings Impacted Achieved in (based on 2010/ /09) Savings Achieved in 2011/12 Two Year Cumulative Savings Duty Counsel Services 1 : Roster and staff criminal, civil and youth duty counsel services (net of severance) 123,500 $2,619,000 $3,597,000 $6,216,000 Alberta Law Line Services: Staff Office Services (net of severance) 14,300 $1,027,000 $2,516,000 $3,543,000 Brydges 22,800 $237,000 $237,000 $474,000 (Contract) Central Alberta Law Office Services: Staff Office Services (net of severance) 1,600 $361,000 $891,000 $1,252,000 Family Law Office Services: Staff Office Services (net of severance) 3,400 $1,487,000 $3,569,000 $5,056,000 Immigration Services: Roster and Staff Office Services (net of severance) 1,500 $1,035,000 $1,222,000 $2,257,000 Legal Aid at Siksika Nation: Staff Office Services (net of severance) 1,840 $155,000 $434,000 $589,000 EPOP: Roster and Staff Office Services (net of severance and provincial funding) 1,600 $341,000 $659,000 $1,000,000 Youth Criminal Defence Office Services: Youth Worker Staff Office Services (net of severance) 3,000 $153,000 $366,000 $519,000 Private Bar Civil (including non-family 5,700 $4,854,000 $9,708,000 $14,562,000 civil) Certificates: Total: 179,240 $12,269,000 $23,199,000 $35,468,000 1 includes private bar and staff duty counsel costs, duty counsel costs from staff law offices (CALO, YCDO) and the costs of bail representation. It should be noted that the full savings resulting from elimination do not occur in the first year, 2010/11 as the severance costs for staff terminations will be borne in that year. It is assumed that 7/12ths of annual salary would be paid in 2010/11 as severance with most overhead (e.g. Rent) continuing in the short term. Private bar services related to Duty Counsel would see a 100% saving in the first year, but services related to certificates would see only a 50% savings as existing certificates would need to be paid out. 44

65 It could be expressed that the only benefit of these cut-to-the bone reductions is a combined estimated cost savings of approximately $35 million. However, the elimination of the above-mentioned services is something that LAA does not wish to do as such an action would leave the legal needs of Albertans unaddressed. This option was taken to LAA s stakeholders in consultation, who uniformly expressed grave concerns over the possible consequences of this action. All of LAA s current services were considered valuable and there was strong support for retaining them all. Consultation participants indicated that access to justice would be compromised for low-income Albertans, and there were fears that the outcome would have negative consequences for both the efficiency and effectiveness of the justice system. It was feared that cuts to existing services would increase the number of unrepresented people in the courts and that it would not save the system money as other areas of the justice system would have to pick up the slack. c) Restrict Eligibility for Full Representation Services In 2006, LAA commissioned a Needs Assessment report through Prairie Research Associates. One of the findings in that report was that stakeholders overwhelming felt that LAA s financial eligibility guidelines were much too low. As a result, LAA relaxed its financial eligibility guidelines in August 2008 and transitioned from assessing client eligibility based on gross income to using net income to assess eligibility. (See Section 5(d), Who Are LAA s Clients? for more detail on the principled-approach used to revise the FEGs) In spite of this, a majority of the stakeholders consulted believed that the income threshold was too low and should be raised. There was strong support for eligibility to be based on serving a combination of: a) those at or under a predetermined income level and b) a portion 45

66 of the population, regardless of income. Considerable concern was raised that the current guidelines prevented many people who cannot afford a lawyer from accessing legal aid, resulting in people making decisions, in the absence of legal advice, that may not be in their best interested or appearing in court unrepresented. There was unanimous agreement that unrepresented persons overburden the court system; generate more work and difficulty for the judiciary, crown court workers and others; and generally results in an unpleasant experience for everyone involved. LAA is committed to maintaining a principled approach in the setting of FEGs. As noted earlier, there are a number of income measurements to which reference can be made. All of these, in some way, measure who is relatively worse off than other persons in a city, province or country. The most frequently mentioned, including LICO, are not generous but limited to those persons who are most poor. LAA should strive to set its FEGs above those levels but, ultimately, this decision is impacted by available financial resources. The forecast cost of the transition to the new financial eligibility guidelines in 2008 was $4.5 million annually, in order to provide service to an additional 6,400 qualifying clients each year. This change to the FEG was based on anticipated funding increases for future years. However, since LAA s overall revenue is shrinking, LAA will need to restrict eligibility for full representation services. However, it must do so in a way that still adheres to as much of the principled approach used to raise them in 2008, as possible. It should be stressed that clients will not be left without services while they may no longer qualify for full representation, the new service delivery model, the Legal Service Centre, which will be described later in this Report, will provide clients with assistance. It is expected that the Legal Service Centre (LSC) will not be fully implemented until April Should the 46

67 FEGs be reduced before that date, LAA will ensure that enhanced Duty Counsel and/or enhanced access to legal information and advice services is available in Edmonton until the LSC opens and elsewhere until the LSC pilot can be expanded. As a general guideline, for each 10% reduction in qualifying net income criteria used in the FEG s, LAA can reduce legal expenditures by $2 million to $3 million dollars. (Calculations are based upon the 40,492 certificates issued under the new guidelines between October 1, 2008 and September 30, These certificates covered 28,073 clients.) This calculation also assumes that there are no changes to substantive eligibility and that service demand is otherwise stable. It would not be feasible to reduce the FEGs sufficiently to achieve $20 million in savings, as this would require they drop by 70%. However, reducing the FEGs by smaller amounts will result in savings which, especially when partnered with some of the changes to service delivery detailed elsewhere in this report, could allow LAA to weather its current fiscal crisis while still providing services to as many Albertans as possible. It also spreads client impact across a broader range of clients. Finally, reducing the FEGs, as opposed to eliminating specific services and programs, allows LAA to maintain the infrastructure of people, facilities and tools which has been put in place over the years. It puts LAA in a much better position to ramp up again once the financial situation improves. Should the infrastructure be dismantled, it may be extremely difficult to rebuild or resource for two reasons: start-up costs are always higher than ongoing costs and so will require more funding; and LAA s credibility and commitment to its programs and services will likely suffer making it more difficult to convince potential staff to either rejoin or new staff to start at LAA. Any changes to the FEG s will take 6 to12 months to fully flow through because of the need to complete existing outstanding certificates; consequently, action would need to be taken 47

68 immediately in order to fully realize projected savings in 2010/11. The Table below outlines a range of changes which could be made to the guidelines and the overall impact in terms of the decrease in number of certificates, in expenditures and in revenues: Current Guidelines Household Qualifying Size Net Income Qualifying Net Income, 10% Reduction Guideline Revision Options Qualifying Qualifying Net Income, Net Income, 20% 30% Reduction Reduction Qualifying Net Income, 40% Reduction Qualifying Net Income, 50% Reduction 1 person $21,000 $18,900 $16,800 $14,700 $12,600 $10,500 2 persons $26,000 $23,400 $20,800 $18,200 $15,600 $13,000 3 persons $37,000 $33,300 $29,600 $25,900 $22,200 $18,500 4 persons $40,000 $36,000 $32,000 $28,000 $24,000 $20,000 5 persons $43,000 $38,700 $34,400 $30,100 $25,800 $21, persons $46,000 $41,400 $36,800 $32,200 $27,600 $23,000 Overall Impact of Guideline Revision Options Decrease in Certificates 2,600 4,400 6,100 9,600 13,100 Gross decrease in expenditures $2,800,000 $4,600,000 $6,500,000 $10,100,000 $13,800,000 Decrease in Revenue $390,000 $650,000 $920,000 $1,450,000 $1,970,000 Net decrease in expenditures $2,410,000 $3,950,000 $5,580,000 $8,650,000 $11,800,000 As noted earlier, LAA had forecast, when the FEGs were raised, that 6,400 additional certificates would be generated at an annual cost of $4,500,000. Over the past 12 months, LAA has been able to analyze patterns in the size of households and income levels who utilized legal aid as a result of the FEG increase. This has given it better data with which to forecast the impact of changes to FEG, as a result of which it is projected that it will take a higher reduction in certificates to achieve the required results. As well, given increased demand due to the economic situation, a reduction of 20% will not even return LAA to the position it was in before the increase in the FEGs in It would not even only cover the loss of anticipated funding for the new FEG levels. In order to provide relief for the reduction in ALF funding, decreases of 30% to 50% will be required. 48

69 How would a 30% reduction be principled? The following table shows the effect of the reduction on individuals in each household size: Household Size Percentage of Albertans covered 2007 FEGs Revised 2008 FEGs 30% Reduction 1 person 40% 40% 20% 2 persons 20% 21% 8% 3 persons 11% 18% 8% 4 persons 7% 13% 7% 5 persons 11% 18% 7% 6+ persons 7% 19% 6% A 30% reduction will put all households, other than one-person households, below the target client group identified in Section 5(d) of this Report (i.e., the 20% of individuals with the lowest income in each size of household, with a higher percentage of coverage for one-person households). Instead, with the 30% reduction across the FEGs, LAA is targeting roughly the same percentage of each group, being between 6% to 8% of the lowest-incomes in each household size, except again for one person households. The reduction would result in levels that are below LICO for all groups. The FEG reductions would also put LAA 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 reduced FEGs (Saskatchewan and Quebec). d) Implement Quotas Under a quota system, a maximum number of clients would receive full representation services each month. Once that maximum number is reached each month, service would be refused to additional clients until the next month. The decision to grant or not grant coverage would be based, not on need or meeting financial or substantive eligibility guidelines but rather 49

70 on timing of the application. A quota system would enable expenditures to be more closely monitored and could therefore save money. However, it would also mean many that many otherwise eligible Albertans would not receive legal aid in a timely manner. No one participating in the consultation supported the introduction of a quota system. It was deemed to be an unfair approach that would result in reduced access to justice. An alternative to a quota system is capping coverage for certain substantive areas. For example, LAA currently tops-up immigration coverage beyond what the Federal government provides. By capping coverage, LAA could save approximately $800,000 annually. However, it needs to be stressed that Immigration and Refugee clients are a particularly marginalized population in Albertan and any cuts to this service would negatively impact access to justice of this demographic of the population. e) Overall Impacts of Service Changes (b) to (d) The changes in services and operations outlined above would result in fewer Albertans receiving LAA services. As well, services would only be provided after clients were already enmeshed in the legal system. Albertans would wait longer, receive less personal service and pay more. This may also result in people who would be entitled to coverage fearing to apply. There would be more unrepresented litigants in the court system and their problems would be more challenging as they would have had no assistance until the final stages. The private bar would receive fewer certificates as areas of coverage are eliminated. Depending on the course of action taken, anywhere from 30,000 to 50,000 new litigants would be forced to navigate the justice system unrepresented if LAA s funding remains at current forecast levels and LAA does nothing to change its current practices and operations. 50

71 While none are desirable, it is suggested that a temporary reduction in Financial Eligibility Guidelines (FEGs) would result in the least long-term impact on clients. Although this option has many of the same systemic impacts as substantive changes, it does spread the reductions over a broader spectrum of services. An expanded Duty Counsel model (explained in Section 7 following), and the cost-savings expected from such a change in service, will lessen the impact on clients already in the court system. While it will be necessary to pilot Expanded Duty Counsel to confirm the cost-savings and other benefits, it is suggested that two-thirds of Level I offences can be resolved by Duty Counsel. Using data, that would reduce the 22,972 issued certificates for Level I offences, out of the total 38,146 issued criminal certificates. The average cost of Level I certificates was $551 in The savings would therefore be two-thirds of 22,972 times the average cost, for a savings of $8,438,381, less the cost of any increase in staffing. Another way of estimating cost savings is by looking at the number of Express Guilty Pleas for Level 1 offences. There were 5,665 Level 1 Express Payments processed in the fiscal year for a total of $2.2 million. The current tariff for each of these is $395 including disbursement or roughly 4.5 hours per resolution. If existing Duty Counsel in Edmonton and Calgary handled 19 of these cases a week or 988 files per year, the annual savings would be about $370,500. This assumes that each Duty Counsel would handle only 3 such matters a week. If more Duty Counsel were hired so that each were able to handle more cases, the savings would be greater, although offset to some extent by additional staff costs. Reducing the FEGs also 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 51

72 when funding circumstances improve. For instance, eliminating civil coverage would make it difficult to reintroduce service at a later time, as the infrastructure and expertise required to support these services will have been lost. However, the negative consequences for other parts of the justice system may be unmanageable. There would be a larger burden for other non-profits legal service providers to shoulder and access to justice will be compromised for a significant portion of the population. 52

73 7. Options for Service Delivery: Part II - Looking Towards the Future Legal Aid Alberta has been a key component of the justice system for over 35 years. 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, there are some key improvements LAA can make in order to continue providing services to its clients, while still continuing to support the administration of the justice within the justice system. Legal Aid Alberta is looking at innovative ways to redefine the delivery of legal services. The services LAA offers, the method of delivery and the interaction with stakeholders and services providers need to be redesigned and managed to meet the legal needs and expectations of low-income Albertans and be coordinated with other agencies who deliver legal services to Albertans in need. Program design and LAA-client interactions will need to take into account client expectations, concerns and capabilities so as to ensure that clients do access services and do receive the services they need. LAA believes it is in an optimum position to actively participate in initiatives supported by Alberta Justice (Safe Communities) and the Law Society (Access to Justice Committee) through the development of Legal Services Centres, with the goal being Tailoring Services to Meet Client Needs, which focuses on assessing client s legal needs, the use of paralegals, unbundling and collaborating more closely with partners and services providers. a) Tailoring Services to Meet Client Needs 53

74 The concept of Tailoring Services to Meet Client Needs embodied the idea that a certificate (i.e., full representation) will not be the default option for service delivery. Instead, it embraces a wide range of legal services. While they are not always mutually exclusive, some legal services are more appropriate for resolving disputes and others for preventing disputes or facilitating self-help. A client may require only legal information and a referral to a social agency. Or, advice and limited scope services such as mediation support may be all that is required to obtain the appropriate client outcome. If the matter is already in the court system, it may be that a quick resolution is still more appropriate than a lengthy court battle. A legal aid certificate is proof that a client has been approved for legal aid. LAA may issue a certificate for partial or full legal help at court or a tribunal. This service is helpful when a lawyer is needed for the case but a lengthy court or tribunal process may not in the best interests of the client or the other party. This option refers to only giving out a certificate when all other ways of resolving an issue have been considered. In a tailoring services to meet client need, clients would be referred to alternative ways to obtain a settlement like mediation, having a lawyer deal with only one aspect of the case, or using a highly trained non-lawyer before a certificate is granted. It s expected that this model would: Minimize unnecessary court delays and drain on court resources; Ensure services provided more closely match the need; Reduce the cost of full legal services and representation; 54

75 Avoid the inherent systemic disadvantages 20 experienced by low-income persons once they are in the legal system; and Most importantly, provide a better client outcome through quick resolution and/or prevention of further legal needs. 21 Most participants in the consultations supported the adoption of the certificate as a last resort approach an approach that might more accurately be called tailoring services to meet client needs. They thought it offered more flexibility for meeting clients needs efficiently and effectively and was seen as particularly beneficial for providing clients with assistance specific to their immediate needs. Stakeholders agreed that appointing a lawyer for full representation was not always needed to resolve a person s legal problems. However, such an approach should not make it more difficult or complicated to obtain a certificate where one is appropriate. With this approach, legal aid services would be more tailored to client needs, clients would have more control over the direction in which their matter is dealt with, and they would gain a better understanding of how to navigate the justice system. Similarly legal aid lawyers would, in some cases, be able to provide a broader service than they do now. For example, an expanded duty counsel or extended Law Line could fill current gaps in the legal process. Certificates would likely still be issued quickly for cases that may have serious consequences for the client (potential jail time) or needed more specific legal assistance. Such a change may 20 Marc Galanter, Why the Haves Come out Ahead: Speculations on the Limits of Legal Change (1974) 9:1 Law Society Review 165; confirmed by subsequent research around the world, including Canadian research in Kritzer, Herbert M. and Silbey, Susan, In Litigation: Do the Haves Still Come Out Ahead? (Stanford: Stanford University Press, 2003); the advantages of repeat clients, the structure of the courts to favour repeat clients, lack of counsel and better counsel for repeat clients are some of the reasons shown by the research. 21 Scott Barclay, A New Aspect of Lawyer-Client Interactions: Lawyers Teaching Process-Focused Clients to Think About Outcomes, Clinical Law Review (Fall 2004, Vol. 11:1). 55

76 enable LAA to consider these things depending upon what services LAA is providing and how such services are prioritized. So, what would tailoring services to meet client need look like? What follows is a general overview of the new service delivery model designed to answer this question. Details and costing will be provided in later sections of the report. b) First Contact: Assessment of Legal Need At first contact, trained staff would assist the client in identifying the real legal needs that underlie the presenting problem. For instance, a parent may request a lawyer to bring a court application for increased access and/or decreased support. The second parent may also request a lawyer to defend the application. If LAA focuses only on the legal aspect, two lawyers may be given certificates to win the court case. However, the best outcome might be that the two parents learn how to work together to prevent and resolve disputes around support for and access to the children. Instead of looking to a court order as the optimum resolution, a mediated settlement based upon mutual, realistic expectations and improved communication tools might be the better choice both in the short- and long-terms. To achieve that outcome, advice, counsel support at mediation, and possibly referral to a family or debt counselor would better achieve the client s restated objective. 22 It might be that full representation is the best service option right from first contact (e.g. a homicide charge); on the other hand, advice and brief services may or may not result in a 22 LA Western Australia, Annual Report 2007/08: Overall, clients who had taken part in the ADR Family Conferencing program were satisfied. Just over three quarters of the conferences (77%) resulted in an agreement being reached at the conference. The majority (77%) of clients said that they would recommend the Legal Aid Alternative Dispute Resolution Family Conferencing program to other people. 68% stated that they were satisfied with the process (18). 56

77 resolution and the lawyer or non-lawyer involved may then determine that full representation is where the individual should go It is suggested that there would be five levels of service available to a client depending upon need: first contact; advice and brief services; court-based services; full representation; and outreach and preventative services. LAA Service Levels Level One: First Contact Information and Referral Public Legal Education/ Information resources Legal information Level Five: Outreach and Preventative Services Level Two: Advice and Brief Services Outreach and PLEI Coordination Collaborations and Partnership Coordination Policy and Research Assess Legal Needs Legal advice Brief services emergency/ settlement advocacy Brief services no external advocacy Level Four: Full Representation Level Three: Court-based Services Full representation hearing advocacy Full representation holistic legal services Representation Support Legal advice Brief services hearing advocacy Brief services settlement advocacy Service Level One: First Contact First Contact may be made in person, by phone or through remote video access. This level would focus on understanding the needs of the client and ensuring that they get the right help at the right time. Help would be provided so that they also understand their problem and the part of the legal system in which it may be resolved. They might receive information to reduce or prevent further need of legal services. They would be referred to one of the other Legal Aid service level programs or offices, or to an external service should they require more assistance. 57

78 Dedicated staff could immediately attempt to resolve, prepare forms or extend deadlines for matters that have a deadline or hearing date of two working days or less. Where a non-lawyer or staff lawyer determines that certificate representation is appropriate, he or she will complete the on-line application form rather than handing off the client to another person. Only for full representation will a formal application be required. Service Level Two: Advice and Brief Services Legal advice, which has been shown to be a necessary adjunct to legal information, would be available to clients in many situations before other types of assistance. Some clients may benefit from brief services from lawyers or non-lawyers - those legal services that could be provided within three to five hours, with the objective of resolving all or a discrete part of the matter within that time or at least preventing it from escalating. These lawyers may, in some circumstances, also give opinions on whether or not to grant full representation. In , LAA paid approximately $539,000 for 3,311 civil opinions and about $51,000 for 835 criminal opinions. It is estimated that most of these opinions could be provided in-house with existing staff lawyers for savings of $500,000 annually. Again, where a non-lawyer or staff lawyer determines that full representation is appropriate, he or she will complete the on-line application form rather than handing off the client to another person. Only for full representation will a formal application be required. Service Level Three: Court-based Services Duty Counsel and Bail Representation Services are services that are performed at court. Brydges Duty Counsel Services (not performed at court) is directly connected to an ongoing 58

79 justice system process and so would be part of this service level. Duty Counsel will be organized into offices through which enhanced duty counsel services will be provided. Non-lawyers will assist Duty Counsel at court. They will complete and submit applications (on-line) where Duty Counsel determines that the matter cannot or should not be resolved through enhanced duty counsel services. While the FEGs would not be used for regular Duty Counsel, they would be applied for expanded Duty Counsel services. The legal aid plan in British Columbia made a similar distinction. It provided up to 45 minutes of Duty Counsel services to anyone; after that, clients had to meet FEGs and were entitled to up to an additional two hours. Service Level Four: Certificate Representation and Representation Support Certificate representation services may be provided through a roster lawyer, a staff law office, or a clinic. This level is the crux of the client-focused model in that it is also where a number of supports will exist to ensure that the client gets quality services and a quality experience. Roster lawyers will be supported in the provision of their legal services through: mentoring and lawyer supports, including the lawyer mentoring program; legal resources coordination such as negotiating the use of the Legal Aid Ontario briefs or refugee country research and checklists; and lawyer education workshops. In addition, overall roster supports will include recruitment, retention and roster innovations (e.g. exploring the uses of block contracting). LAA staff could provide full representation services through staff law offices or legal clinics which may target specific clients or areas of law, or through offices which focus on clusters of areas of law. 59

80 Other services that would be made available to clients, could include: contracting with mediators for clients or acting as liaison with existing ADR programs which LAA clients will access; client support workers, including the existing Family Resource Facilitators, Youth workers and client resource workers; the use of other professionals (e.g. psychologists) or skill sets such as life skill coaches, arranging for anger management; or self-help clinics for a specific legal issue. LAA could provide the service directly or provide a certificate for mediation as a disbursement. Service Level Five: Outreach and Prevention The actually delivery of outreach and public legal education/information would happen at the front-line level, e.g. Legal Services Centres, Staff law offices or clinics. However, it would be important that this level of services be coordinated to ensure priorities fit with what is seen in service delivery trends and issues, as well as other ongoing environmental scanning. Using the expertise of front-line staff, along with maintaining currency in service delivery statistical data analysis and larger legal aid and socio-legal trends and best practices, will ensure that policies and programs are relevant, effective and efficient. A big part of Outreach and Prevention will involve collaborations and partnerships with other stakeholders in the justice system, including non-governmental organizations (NGOs) and a systemic approach. c) Tailoring Services to Meet Client Needs in Practice: Pilot a Legal Service Centre The Legal Service Centre (LSC) would be the first point of contact with clients. Legal and related needs would be identified, advice and information provided, and a decision made as 60

81 to which of a range of legal services would best meet the client s needs. Non-lawyers and/or lawyers at the centre would provide settlement advocacy, document preparation and even brief legal counsel (three hours of less) in an effort to help the client and/or resolve a matter quickly. Several jurisdictions including the United Kingdom and the Netherlands have implemented such centres. South Africa has justice centres staffed by lawyers, paralegals and support staff and are usually the first point of contact for a client. A paralegal determines if they qualify for legal advice, information or referrals. If they qualify, the paralegal will open a file and direct the client to see one of the lawyers at the centre, or else be given the necessary referrals. The Justice Centers have links to other public offices and civic bodies that would then provide assistance to the client. LAA s current Edmonton resources (staff, etc) could become LAA s first LSC. A LSC would provide Level One and Two legal services (first contact, ongoing assessment, advice and brief services) and act as a community outreach centre. Consultation findings showed that stakeholders supported the concept of such a one-stop client legal services centre. This pilot project would put more focus on the front line to assess client legal issues for civil matters, with the objective that certificates for full legal representation would be issued only if needed. It is expected that many client issues can be resolved more effectively and efficiently through non-certificate services including mediation, negotiation, and legal advice requiring less than three hours of professional services. The key benefits of this proposed pilot are: Diversion of less complex civil certificates to lower cost methods of resolution; Internalization of the majority of legal opinion certificates, reducing response time and decreasing legal expenses by approximately $500,000 annually; More timely assessment and resolution of less complex legal matters; 61

82 Enhanced coverage for non-family civil matters, including landlord tenant, income support, and wills/estates, which are key areas of unmet need identified throughout the research and consultation process; and More channels of communication and interaction through the use of telephone applications and web support services. Technology utilized by Law Line will be implemented in the Client Services area to provide enhanced information and interaction with clients. This transition is expected to occur with some costs. Staff will need to be up-trained to act as legal assistants, and some moving costs will likely be incurred. However, these costs are expected to be more than offset by savings associated with certificate reductions. It is expected that the LSC would see at least 14,000 contacts annually, being the number of Edmonton Region applications in 2008/09. In addition, many clients who do not apply for full representation, such as some Duty Counsel clients who would not financially qualify, would also be clients of the LSC. For instance, clients with Level I criminal charges would receive some legal information and possibly advice; then, they would be referred to the expanded Duty Counsel program. Of the civil matters, again, clients would receive legal information, referrals and advice. Then, they would in most cases be referred to the expanded Duty Counsel program for family law matters. It is anticipated that 25% would be resolved without going to full representation. For instance, the Enhanced Family Duty Counsel program in British Columbia resolved 25% of matters immediately, referred 20% to legal aid and found the balance of 55% was being resolved by the parties themselves. It is expected that, where Duty Counsel determines that both parties 62

83 are or will be represented by LAA, they will be required to undertake mediation through LAA, prior to receiving any additional legal services. Clients will be able to access the LSC in a variety of ways: in person, by phone, and through the Internet. Dedicated access from partner referral agencies will be explored. A variety of services may be made available to them, depending upon need, including: general information; clarification of the question/problem; legal information and referrals to other legal services, social agencies, government, etc.; legal advice; brief services including document review and preparation; third-party phone calls or letters for information and clarification; requests for extensions of deadlines or adjournments; settlement advocacy by phone or letter; coaching for self-represented litigants who must attend first appearances or hearings at courts and selected tribunals; referrals to Expanded Duty Counsel or mediation; application for and granting of a certificate, where full representation is the best option for the client; and referrals to other LAA departments for clients with existing certificates (e.g. Appointing, Service Recovery-Complaints, etc.) Staff Lawyers and Legal Service Officers will be required to make assessment decisions at various stages along the service options continuum, including what to unbundle in a certificate application. It is hoped that brief services or mediation will resolve many client matters but for some of the brief services, the outcome may not be so much about saving costs through 63

84 settlement as much as saving costs down the road as clients are better prepared and have more reasonable expectations of their legal matter and the legal process. In most cases, the decision as to which service best meets the client s need will be made by the Legal Services Officer or Staff Lawyer, in collaboration with the client. In some situations, such as a person being charged with homicide or a parent with a child welfare matter, protocols will require that the person immediately meet with a Legal Services Officer to apply for full representation through a roster or staff lawyer. In most other cases, clients will receive legal information and advice before either being referred to Enhanced Duty Counsel or receiving some type of brief services. In cases where clients should have full representation but do not qualify on financial or other grounds, coaching may be made available to assist them when they appear as self-represented litigants. The path a client could take when first coming to the LSC might look like the following flow chart: 64

85 LAA Legal Service Centre: Process Map for First Response Level Person has a (legal) problem There will be people who are detained or see Duty Counsel first before they enter this process. Walk-in (and phone?) Phone or web app Legal Services Centre Phone or web app What does person need? Phone or web app Alberta Law Line Wrong agency, general information Doesn t know, needs help Criminal Family Civil Provide general information To Legal Services Officer for legal information and further assessment What type of issue? What type of issue? To Legal Services Officer for legal information and further assessment LevelIIorIII offences Youth Level I offences Family Violence Other family matters (support, parenting, etc.) Child Welfare To Legal Services Officer for application To Legal Services Officer/Staff Lawyer for information and referral to YDCO To Legal Services Officer/Staff Lawyer for information and referral to EDC To Legal Services Officer/Staff Lawyerl for information and referral to EDC To Legal Services Officer for legal information and further assessment To Legal Services Officer for application Enhanced Duty Counsel If not resolved Legal needs assessment and streaming of clients to various services will continue into the second and third response levels and could include legal advice, brief services, Enhanced Duty Counsel Services or mediation. Certificate Management As existing staff positions will be utilized, these costs will not be new items in the 2009/10 budget. However, there will be start-up costs: Cross-training courses $125,000 Protocols development $10,000 Infrastructure adjustments (IT, telephony, web portal) $300,000 Renovations/furniture adjustments $100,000 Total Start-up Costs $535,000 65

86 This pilot could be implemented effective April 1, 2010 and would be evaluated after its first year of operation based on the following criteria: Total cost of service compared to budget; Total cost savings achieved compared to prior year; Total number of clients assisted by type of service (certificate, brief service, information/referral) compared to prior year; Average cost per client assist by type of service provided compared to prior year; and Client satisfaction ratings compared to prior year. Based on the results of the pilot, the service may be expanded to other areas where demand is sufficient to realize efficiencies and improved service effectiveness. However, in the interim, this service model would be adapted for centres outside of Edmonton. Staff in other regional centres will also receive training in First Contact and Triage. Remote access to the pilot Centre, for legal advice and brief services, will be available for regional staff and clients. Partnerships with nonprofit legal service providers in some areas, e.g. Grande Prairie, may also be developed to assist with this type of service provision. Additional benefits expected from the implementation of this program include: Revisiting the client application process. The pilot will look at streamlining client applications for lower cost cases so that the administrative expense is within a reasonable proportion of the legal cost. The legal services centre will also facilitate the processing of client applications through multiple channels of communication including telephone, web, and in-person to drive additional efficiencies across the application process. Improved documentation and closer coordination with other parts of LAA to reduce redundant interviews and data entry. The information systems that will be utilized by the 66

87 legal services centre will link and integrate with staff law offices so that pertinent information is captured once, and only once. The interview process will also be modified through consultation with other parts of LAA to ensure the format and content of information captured in the interview process better supports user needs. The benefits gained from these changes will also likely improve communication, interaction, and information transfer with the private bar. Reduce the need for Opinion Certificates in the Edmonton Region: LAA spent over $231,821 in the Edmonton Region, for opinions from private bar lawyers as to whether or not a client should receive certificate coverage. The ongoing legal needs assessment which is part of the Legal Service Centre model should eliminate the need for 75% or $173,866 of this expenditure. An additional costs-saving could occur through streamlining the resources of LAA s other Regional Offices. Clients of those offices could receive advice and brief services through telephone or video, by existing staff at the LSC. Some of the disadvantages of establishing an LSC would be: Perception of inferior service: For those who are used to the idea that LAA services means applying for a lawyer to fully represent them, this will be a change. They may feel that they are receiving inferior services and that perception will need to be addressed proactively. Risk of inferior service: For the LSC to be successful, LAA will require well-trained staff (lawyers and non-lawyers) committed to the concept that a client coming to LAA will receive legal services of some type, dependent upon their specific needs. It will also require clear, proactively-focused protocols and procedures that empower staff to provide 67

88 the services clients need, within LAA s budget and mandate. Otherwise, persons not qualifying for a certificate could in fact receive inferior service. Impact on private bar: As it is anticipated that this model would result in fewer certificates being issued, there would be an impact on the private bar. Assuming that the pilot is successful, and as more centres are established in other locations, Alberta Law Line could continue to work in collaboration with them (in person in Edmonton and Calgary, and providing advice and brief services remotely where a Legal Services Centre does not have a staff lawyer). It would also be the repository for remote access service delivery expertise and would provide the dedicated advice services such as LInC and the Women s Shelter, similar to the Netherlands attached call centre model used in conjunction with their Legal Services Counter. Finally, during the transition and pilot stages, and working collaboratively with Duty Counsel, the LSC pilot and LAA s other Regional Offices, Law Line could assist in providing enhanced legal information and advice services in Edmonton until a fully functioning LSC is in operation and remotely to the Regional Offices, until the pilot is completed. d) Paralegals in Alberta Experience within LAA and outside of Alberta 23 has shown the value of providing legal services through a mix of private bar, staff lawyers and paralegals. As there are many conflicting 23 Non-lawyers, under the supervision of staff lawyers, provide legal information, referrals, assist in completing court forms and other documents, and undertake other brief services in a number of LAA staff law offices. In Ireland law clerks are involved in preparing court documents. In South Africa, paralegals give legal and general advice. Non-lawyers in Legal Aid Ontario s community legal clinics are the main service providers. Community legal workers there attempt to resolve legal matters in a more holistic manner and, where necessary, represent clients at tribunals and in provincial court. 68

89 definitions of paralegals, it is suggested that the term non-lawyer be used. Trained and supervised non-lawyers currently provide legal information, brief services and advocacy in some LAA programs. In other jurisdictions, they provide legal advice and representation before tribunals and provincial courts. The goal in using non-lawyers is not to reduce the quality of service provision but, rather, to make the best use of varying levels of legal knowledge and skills. A client-focused model encourages the use of different legal service providers, in that the client s need and circumstances, as well as the interplay of legal and social needs, will make one or another service provider most appropriate. There will also be a cost-saving component, if the appropriate mix of lawyers and non-lawyers is chosen. Paralegals should be used to provide services wherever possible. They can help clients handle complicated paperwork and provide a basic level of legal knowledge and skills. The Law Society of Alberta is currently researching the affect and prospect of supporting paralegal work in Alberta. This research is proposed to continue for the next two years. LAA proposes that it supports this initiative by supporting paralegal work at the Legal Services Centres. During the Alberta Law Line pilot project, the Law Society and LAA worked closely together on the job descriptions of the Legal Resource Agents at the front line of ALL. LAA proposes that the two parties do the same for the job descriptions/roles of the paralegals at the Legal Resource Centre. Because it is proposed that the Legal Services Centres launch in April 2010, this pilot could provide the Law Society and Alberta Justice with applied research and outcomes as to what the role of paralegals should/could be in Alberta. Piloting expanded paralegal service provision at LAA would give it a better understanding of the possibilities, cost and other benefits. Currently, for instance, LAA uses 69

90 paralegals extensively in the provision of services at the Alberta Law Line and the Immigration Services Program. Paralegals assist clients in articulating and understanding their legal problems, provide legal information and referrals, assist in completion or draft documents, contact third parties for settlement advocacy and, in some cases, request adjournments or extensions of filing deadlines. If the necessary services the paralegals, called Legal Resource Officers, provided at Law Line were provided by staff lawyers, costs would increase by roughly 50%. LAA also uses a paralegal in the Calgary FLO office to provide first contact services and docket court appearances for clients in child welfare matters. The use of a paralegal, rather than a staff lawyer, for these services allows the Calgary FLO office to take on 300 more cases annually. Care must be taken, however, to ensure that the use of paralegals does not result in a second-class level of service to clients. As well, those expecting services from a lawyer must be made fully aware that the paralegal is not a lawyer which may result in some dissatisfaction and distrust from clients. The Law Society of Alberta has just begun to undertake policy work around the use of non-lawyers to provide legal services. Working with Alberta Justice and the Access to Legal Services Steering Committee, it is expected that this complex work will take some time to complete. LAA will be piloting various aspects of service delivery through its Legal Service Centre which may provide useful research data for both the Society s and Alberta Justice s policy work. 70

91 e) Tailoring Services to Meet Client Needs: Outside of a Legal Services Centre e-1) Unbundled Services The stakeholders consultation indicated that there is strong support for providing unbundled services to LAA clients. Unbundled or limited scope litigation services are a key component to the success of Tailoring Services to Meet Client Needs. Unbundling in the legal context, refers to the process of segmenting groups of legal services tasks, into individual, simpler tasks. Unbundling, also known as discrete task or limited scope representation, offers clients a middle ground between dispensing with a lawyer altogether or retaining a lawyer for full service delivery. In the normal context the lawyer is in charge of determining which tasks are be performed by the client, and which services are performed by the lawyer, and the extent or depth to which the lawyer will perform the services. This is a less costly option for clients then full service representation. It must be noted that limited scope retainers are not appropriate for some Legal Aid Alberta clients who do not have sufficient literacy skills, sufficient education, and a presence of mental health issues. Legal Aid Alberta already provides extensive unbundled services to Albertans. It is already providing extensive duty counsel services which are in and of themselves unbundled services. These duty counsel services include Provincial Court Criminal Dockets throughout the Province, Court of Queens Bench Family Chambers in Edmonton, Provincial Court Family Dockets in Edmonton and Calgary, Provincial Court Child Welfare Docket in Edmonton and Calgary, Institutional Disciplinary Hearings throughout the Province, Mental Health Review Board and Review Panel throughout the province, Emergency Protection Orders throughout the province, Mills/O Connor Applications throughout the province, and Bail hearings before Justices of the Peace. 71

92 LAA also unbundles services in that civil clients are not given full representation certificates in some circumstances. Coverage for civil matters was refined in April 2009 to ensure that LAA is making appropriate coverage decisions in light of budget constraints. Each issue for which a client applies for coverage is carefully considered. A specific coverage decision is made on each issue, rather than determining that if the client requires Counsel for one issue, LAA will simply provide coverage for all. This will not impact the number of certificates issued, but rather should reduce the cost per certificate. For example, in the past, LAA would have covered matrimonial property automatically with all divorce coverage, but now the merit of a matrimonial property claim is considered and a specific decision is made about whether to cover it. On some matters, particularly the non-family civil matters, LAA is taking a more strict view on the issue of whether a reasonable person of modest financial means would choose to retain Counsel, and is refusing coverage on any matters where the client can represent him or herself, even when it is appears the client would really benefit from having Counsel. Unfortunately, in order to make better coverage decisions, LAA has had to request more Opinions. Care must be taken when exploring further unbundling of legal services. Some clients are not able to take steps on their own and may not understand the concept that they only have a lawyer assisting them for discrete steps in their legal matter. As well, it is not clear that the courts will be supportive of unbundling, to the extent that a lawyer may not wish to be the lawyer of record, even though they have done work for the client such as drafting documents or appearing on an interim matter. Finally, the potential lack of continuity of legal service may negatively affect the client or the outcome of the matter. LAA is currently working with the Bench and the Law Society to develop a common approach to unbundling in the area of family law. By working with the Law Society, the 72

93 judiciary and court services LAA staff lawyers at the Family Law Office and the private bar could offer more discrete services to LAA clients. The outcomes of the unbundling project will be provided to Alberta Justice and the Law Society. This applied research into how discrete services can be used to further develop unbundling best practices throughout the province. It is anticipated that unbundling, given the shorter time spent on cases and the subsequent reduced cost, will produce savings but it is premature to quantify them. e-2) Enhanced Criminal and Family Duty Counsel A potential area of expansion may be with regards to expansion of staff duty counsel services 24. In Ontario, for example, expanded duty counsel (EDC) obtain adjournments, prepare and review court documents, negotiate settlements and consent orders, inform people of how to apply for a certificate or appeal a refusal, and sometimes even take applications in smaller centres. 25 Trebilcock notes the following with respect to Ontario s EDCs programs in criminal and family court: Not only do EDCs show promising results in the early resolution of cases, but they also address some of the traditional limitations of duty counsel, such as the lack of file continuity and strong relationships between lawyer and client. 26 Stakeholders saw the expansion of duty counsel as a positive way for LAA to better service clients, as it would bring about more early case resolution and help the courts run more efficiently. Placement of duty counsel in the Court of Appeal, in Masters Chambers, rural courts and family courts were specifically mentioned. 24 See Appendix G, for more information of expanded duty counsel services. 25 Trebilcock, Note 10, pps. 36, Trebilcock, p

94 LAA provides duty counsel services in many courtrooms throughout the province: Criminal courts: The current service typically only addresses a client s initial plea in docket court. The client is then referred to one of LAA s regional offices to apply for a certificate that covers full legal representation. Often times it can be more expedient for Duty Counsel to review disclosure and consider negotiation with the Crown. Many clients, after fully understanding the situation and obtaining legal advice, also wish to have the matter resolved quickly through negotiation. By implementing an enhanced duty counsel service for financially eligible individuals, LAA will divert a number of certificates to a process that is more timely and cost effective for both LAA and the justice system. This approach could be piloted in both Edmonton and Calgary, with two lawyers and one legal assistant for support in each city. Family courts: LAA provides standard duty counsel services for family matters in Queen s Bench in Edmonton and Calgary. The current service typically only addresses assistance with a client s initial appearance in court. The client is then referred to one of LAA s regional offices to apply for a certificate that covers full legal representation. However, often times a client may only require legal advice or representation for a portion of their legal issue. By implementing an enhanced duty counsel service for financially eligible individuals, it is expected that LAA can divert a number of certificates to a process that is more timely and cost effective for both LAA and the justice system. This pilot project would also coordinate closely with the Legal Services Centre in Edmonton to assist clients diverted from full certificate coverage in family matters. Enhanced family duty counsel could be piloted in both Edmonton and Calgary, with the same staffing arrangement as for enhanced criminal duty counsel. 74

95 For both the criminal and family expanded duty counsel pilots, their offices would ideally be located directly in the courthouse to enable front line service and close interaction with the justice system. In the event that courthouse space cannot be made available, LAA will investigate the feasibility of procuring private office space in close proximity. There is insufficient statistical information available to determine the potential volume of certificates that can be diverted to an enhanced duty counsel service. However, the savings generated by this service are expected to more than offset the cost of implementation in its first year of operation. The key benefits of this proposed pilot for enhanced criminal duty counsel are: Reduced number of certificates for lower level criminal offenses (i.e., Level I criminal offences such as mischief or simple assault) for which there were 22,972 certificates issued in 2008/09 and possibly some Level II offences, for which there were 5,121); Reduced burden of the justice system resulting from lower volumes; and More timely resolution of client legal issues. The key potential disadvantages might be: Resistance from the private bar, who will lose a significant number of Level I certificates. Most Level I certificates are handled by senior counsel (lawyers with more than 10 years at the bar) rather than by junior lawyers. This may indicate that these senior lawyers are in small or sole practitioner firms, where they may be seriously impacted by the loss of certificates. 75

96 Pressure on clients to plead guilty, if Duty Counsel performance is evaluated only on the volume of cases resolved. Other factors, such as appropriateness of outcome and client satisfaction, will need to be considered to counter such an incentive. As was discussed earlier in Section 6, it is estimated that two-thirds of Level 1 criminal certificates would be resolved by Enhanced Duty Counsel. There were 7,359 such certificates issued in Calgary and 7,767 in Edmonton in 2008/09, for a total of 15,126. Using the average cost of Level 1 certificates, being $551 in , those certificates would cost LAA $8,334,426. If two-thirds were resolved, the savings would be $5,556,284 less the cost of any increase in staffing and other costs. There would also be additional savings generated through early resolution of family certificates by Duty Counsel, which would be dependent to some extent, upon the success of proposed Family Mediation services, as set out in the next subsection of this Report. The anticipated first-year cost, for the total of the four pilots, is set out below: First Year Costs of Calgary-Edmonton Civil and Criminal EDCOs Staffing (12 staff) Number Cost Two lawyers for each court and city $95,000/ea. plus benefits $840,000 One paralegal for each court and city $65,000/ea. plus benefits 300,000 Total staff costs $1,140,000 Facilities and Other Costs Office space Edmonton Existing space $0 Office space Calgary 4,000 sq. foot 100,000 Office space renovations, including Supernet - Calgary Other costs (i.e., furniture, stationery, computer, phones, training, travel, miscellaneous $75/sq. foot, less tenant allowance of $20/sq. foot 220,000 40,000 Total Facilities and Other Costs $360,000 TOTAL OF FIRST YEAR COSTS $1,500,000 Given this, LAA could anticipate net savings of approximately $4,000,000 annually. 76

97 These pilots could be implemented effective April 1, 2010 and be evaluated after their first year of operation based on the following criteria: Total cost of service compared to budget; Total cost savings achieved; Total number of clients assisted; Average cost per client assist; and Client satisfaction ratings. Based on the results of the pilots, the services may be expanded to other areas where demand is sufficient to realize improved efficiency and effectiveness. This type of initiative would tie in very well with the new directions in case management being undertaken currently by Alberta Justice. e-3) Family Mediation Services This approach would encourage or require a client to consider resolving a dispute prior to going to court. Mediation or settlement meetings could be arranged through contracted services with minimal impact on LAA s existing resources. In Australia, Family Dispute Resolution (FDR) office provides an alternative to lawsuits. It has found that clients are saved time, pain and money when it comes to family law disputes resulting in better client outcomes. The reported benefits of using FDR include a reduction in tension and hostility between parties, a focus on the best interests of the children, and an increase in pre-court settlement. Certificates are not necessary as in-house staff provide advocacy support to clients at the mediation stage. 77

98 Although most consultation participants saw mediation as a positive alternative to court and supported it, many were concerned that mandatory mediation would not be appropriate in some cases such as domestic violence. The case flow conferencing project and child support/dispute resolution offices in Edmonton and Calgary are experiencing a resolution rate of 65%. Family Justice Court Services handled 714 matters in Edmonton in 2008/09, with 76% resolved fully at the mediation level. Consequently, many litigants issues are being successfully diverted away from the court system. By channeling LAA clients through this process before issuing a certificate, it is expected that this change could result in significant savings. For instance, in 2008/09, LAA issued 10,041 certificates in civil matters 27. In the same year, LAA completed 7,801 civil certificates at cost of $17,502,051. Approximately 65%, being 6,559 or $11,680,436 worth, were family law (nonchild welfare) matters, the types most amenable to encouraging early resolution. If even 50% of those were resolved through ADR, the savings would be $5,840,218, less the cost of any increases in other costs. Should Justice Court Services not be in a position to increase the availability of its mediation services, LAA would be required to develop its own in-house mediation service and alternative delivery methods (in-house mediation services) to support its clients through the mediation process. If it were to pay mediators the same rate as Justice Court Services pays ($80/hour) and if the average mediation took the same length of time (six hours), the mediator costs for that 50% would be $1,574,160. There would be additional costs, such as mediation space, but it is likely that LAA could achieve cost savings in the neighbourhood of $4,000,000 annually. LAA would need to ensure that the mediators it contracts are qualified and competent. A shortage of 27 Opinion certificates are not included in the numbers in this paragraph. 78

99 appropriate mediators, or an unwillingness to accept Justice Court Services rates, could affect the viability of the program. Finally, LAA staff would need to be trained to recognize domestic abuse or power imbalances which would make it inappropriate for a client to be referred to this service. Failure to do so could result in negative consequences for the client. Experience to date with the mediation process has been positive. However, feedback from Alberta Justice indicates that the pilot project is being overwhelmed by demand from LAA clients and may require additional resources in order to continue. f) Establish Legal Clinics Another way to address the legal needs previously identified, is for LAA to establish legal clinics that target these specific needs (landlord tenant, income support, etc). A legal clinic is an office that contains salaried lawyers and paralegals that provide both reactive and preventative legal services. This may include one-on-one legal services to an individual client or to client groups. For example, rather than working individually with dozens of tenants from the same building, a legal clinic might work with the tenant association or with one tenant as representative for the others. The approach by staff is to look at all of a client s legal needs not just the case for which the client is seeking legal aid for - and focus on reducing future interaction with the legal system. In a legal clinic, case issues and trends are monitored to decide where best to provide preventative legal services. Such services would include public legal information and education, client or community development, and law reform activities. Law reform activities may include test case litigation, presentation of briefs, and policy advocacy. (For an overview of the differences between staff offices and clinics, see Appendix G.) 79

100 There was general support from stakeholders for LAA establishing legal clinics in areas of the province where such a service does not exist. Mobile clinics in smaller communities were also suggested. As well, stakeholders felt that LAA needed to do more in the area of education. Two potential types of clinic offices could be piloted: Civil, limited to specific areas such as housing, government benefits, consumer/debt and employment. This could provide a means for addressing the civil duty counsel issue as well provide a basis for LAA to develop a more complete understanding of the legal needs and service delivery issues in this area. It would also allow Legal Aid to respond to the feedback in needs assessments and consultations that it provide more services in these areas. Using the FLO Lethbridge office as a model, operational costs for a two person office would be $260,000 plus start-up costs of approximately $40,000. Urban Aboriginal : Urban aboriginals are consistently identified as a group which needs legal services but under utilizes them often due to lack of knowledge or awareness of legal issues and rights (e.g. 2007, Justiciable Problems and Access to Justice in Canada; 2009 draft Calgary Mapping report which shows Aboriginals as both under and over utilizing the justice system). Accessibility for Aboriginal persons was also identified as a concern in PRA s 2007 LAA Needs Assessment. This type of pilot would be ideal for a collaborative approach which is in discussion with Native Counseling Services of Alberta. For instance, Native Counseling Services would actually operate the clinic. LAA could provide resources and support, in accordance with mutually agreed upon objectives and expectations. Establishing legal clinics would allow LAA to meet more needs of low-income persons in a holistic and systemic fashion, resulting in better outcomes for clients. However, experience in other jurisdictions has shown that clinics will have significant start-up costs and are expensive to 80

101 maintain due to a caseload volume that is lower than is generally found in staff law offices. LAA will need to ensure that existing resources, which may be better used for greater numbers of clients in other priority services, are not diverted to the detriment of clients. g) Expand Staff Offices The use of staff law offices as a service delivery vehicle varies amongst legal aid plans. Currently, LAA has three staff offices and Duty Counsel (who are not necessarily associated with an office, but are still employed by LAA): Family Law Office (FLO), Youth Criminal Defence Office (YCDO), and the Central Alberta Law Office (CALO). As Staff Counsel salaries are fixed, expenditures can be more easily controlled and efficiencies obtained. This may particularly be so in complex or complicated legal matters. As an alternative or in addition, project management techniques could be adapted to ensure that high cost cases were appropriately managed, with LAA providing direct oversight of the lawyers handling of the matter. Finally, fewer private bar counsel could allow for a reduction in administrative costs. LAA s staff law offices represent 10% of service delivery, the second lowest level of staff office use in Canada. The lowest use is in British Columbia at 2%; the highest in Newfoundland at 100%. A breakdown of service delivery percentages for staff offices and examples of types of offices, for Canadian legal aid plans, is found at Appendix H. The advantages of staff offices include a more consistent approach and improved file management (due to the fact that in-office files are easier to manage than out-of-office files). Studies have found that on a per case basis, staff lawyers are more cost effective than roster 81

102 lawyers. 28 However, because the staff office must also pay overhead costs, staff offices are not necessarily less expensive than tariff lawyers, particularly if the tariff rate is low. They can also be a useful window, for a legal aid plan, on segments of the legal aid services market and can provide independent observations on appropriate hour allocations for various proceedings. 29 Whether or not to choose a staff office service delivery model is subject to many factors including cost, availability of lawyers and the need for specialized services. For instance, South Africa began to move toward a staff law office model in 1997 when their certificate costs skyrocketed. By 2009, 90% of their services were being provided through staff law offices and they had reduced their average cost per case by almost 50% over the cost of a judicare lawyer. A number of Canadian studies have looked at staff law offices. A 1999 Federal Department of Justice technical report, Legal Aid Delivery Models in Canada: Past Experience and Future Directions, reviewed the existing research and concluded that staff law offices were generally less expensive delivery vehicles than was the private bar while providing equal quality 30. However, there were two caveats to this finding: carefully designed research that supported this conclusion related to criminal law offices; and 28 See Lee Bridges, et al., The Public Defender in England and Wales: A Flawed Experiment (paper presented at the ILAG conference, Antwerp, June 2007); Tamara Goriely, Evaluating the Scottish Public Defense Service in Richard Moorhead and Pascoe Pleasance, eds., After Universalism: Re-engineering Access to Justice (Oxford: Blackwell Publishing Ltd., 2003); Sonia Olgier and Richard Tait, Final Report on the Evaluation of the PDS Project (New Zealand: Legal Services Agency, 2008); The County and District Law Presidents Association, Analysis of Cost Effectiveness of Criminal Law Offices in Ontario (2008); Ab Currie, Legal Aid Delivery Models in Canada - Past Experience and Future Directions (2000) 33:2 UBC Law Review 285) [Currie Models ] 29 Trebilcock, Note 10, page Currie, Models, note 25, 82

103 clients of criminal staff law offices pled guilty more frequently than did clients of the private bar, although overall conviction rates were the same and staff lawyer clients received fewer jail terms 31. The report went on to conclude that [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 staff lawyers. A management strategy designed specifically to achieve productivity is necessary. 32 Finally, the report speaks to the issue of ideology and values in choosing service delivery models. In particular, the opposition by the private bar has been based on a number of arguments: that staff law offices limit a client s right to counsel and that right to counsel is the best way to guarantee quality service; and that legal aid staff lawyers will not defend their clients as vigourously as will private bar lawyers who are free of any compromising relationship with the state. The 2004 Manitoba Review, A Review of Legal Aid Manitoba 33, continued to explore the staff law office versus private bar service delivery debate. The Manitoba Review looked at Currie s report, as well as others, also concluded that the research tends to show that staff law offices are cost-effective and provide good or better outcomes for clients. However, it again stresses that these findings only apply to criminal staff law offices and that productivity issues 31 Currie (1999), p Currie (1999), pps Ron Perozzo, A Review of Legal Aid Manitoba (Manitoba Ministry of the Attorney General: Winnipeg, 2004) 83

104 can impact the cost-effectiveness of staff offices. When costing its own services, the Review concludes that family law is less expensive when done by the private bar. 34 A client s ability to choose their lawyer may make it difficult to manage the flow of cases in such a way as to maximize both cost-savings and quality. This ties in with Currie s comments about the need to have a management strategy for productivity in staff offices. The Manitoba Review notes that choice of counsel is not required under the constitution and is not available in all legal aid plans. Further, choice has never been totally open. In those plans offering choice, clients are free to choose a lawyer, but only a lawyer who is prepared to provide services at the legal aid tariff. 35 The Review concludes that, in order to ensure staff lawyers meet full caseload requirements, choice of counsel will have to be restricted or eliminated. Conflicts of interest can also be a challenge in legal aid plans using staff law offices. In the private bar, another firm can always take on the case where a conflict of interest arises. Staff law offices can only pass files to another staff law office where each staff law office is considered a separate law firm, rather than seeing the legal aid plan as one big law firm 36. The Review notes that this is the solution being used by Canadian legal aid plans. Each staff office has its own space and computer systems. In Saskatchewan and Newfoundland, specific legislation was also passed so that a staff lawyer will not be found to be in breach of their ethical and professional duties when two legal aid staff offices are representing clients in the same matter. 34 A caseload of 280 cases per lawyer annually was used in the Manitoba Review to compare costs in criminal law delivery and a caseload of 180 cases per lawyer annually in family law. 35 Perozzo, p This is the position which LAA, confirmed by the Law Society of Alberta, has taken. Each LAA staff law office is a separate law office. They are housed in separate spaces and have separate computer databases so that client information is not shared between them. Should staff from one office transfer or be seconded to another, specific plans are put in place to ensure that conflicts are avoided. 84

105 The Manitoba Review concludes: In both Ontario and British Columbia, attempts to increase the staff component of a judicare plan have met stiff resistance from the bar. Alan Young, a law professor at Osgoode Hall, notes that most jurisdictions are wedded to the model chosen at the outset of their programs. In recent years, British Columbia attempted to move away from a judicare to a more developed staff model, and the lawyers organized a protest and work stoppage which forced the government to back down. Newfoundland and Labrador is one jurisdiction that has successfully changed its delivery model. Newfoundland and Labrador had a mixed system but found it increasingly difficult to find private bar lawyers who would take cases and was then faced with a demand for a 60 per cent increase in its tariff. As a result it decided to move to a staff system. It did this over a period of three years. These examples make a further point. The question of which approach is most cost effective can change over time. The costs are dependent on the relationship of the local tariff, the cost of staff, (i.e. salaries, benefits, overhead) and the productivity of staff lawyers 37. Four years after the Manitoba Review, the Ontario Ministry of the Attorney General released a report, Report of the Legal Aid Review 2008, which also explored the issue of staff law offices. 38 The Report again noted that evaluations of staff law offices show they are not as cost-effective as the private bar. However, those assessments were limited in that they were based on current tariff and staff salaries. If either were to change, the comparisons would change. As well, small staff offices allow for limited economies of scale or specialization. The Report explored LAO s three Family Law Offices, three Criminal Law Offices and one Refugee Law Office. The Report noted that the Family Law Offices were supported by the private bar who saw them as a complementary service; the Criminal Law Offices were not supported by the private bar. Both the Criminal and the Family Law Offices were the place of last resort for clients, handling the hardest cases and filling gaps in service. A role for expansion of the FLOs to 37 Perozzo, pp Trebilcock, Michael. Report of the Legal Aid Review 2008 (Ontario Ministry of Attorney General: Toronto, 2008). 85

106 compensate for a decline in private bar family law lawyers and to provide integrated, holistic service was suggested. By way of contrast, even though the CLOs filled gaps in service and provided expanded service options to special client areas (mental health, youth justice and Aboriginal law), it was not recommended that these offices expand. The Report noted that the total value of services provided by the CLOs has not in any year exceeded two-thirds of the expenditures of the offices. These reports demonstrate the difficulty - under the existing tariff - of a public or private office dedicated solely to providing legal aid services to this clientele being able to generate enough fees to cover expenditures. 39 More information on Ontario s Criminal Law Offices is set out in the next section, Adult Criminal Defence Office. While noting that the Refugee Law Office services were of consistently high quality and that its cost per case was higher than for the private bar, the Report made no recommendations with respect to that Office. Where an active, experienced private bar exists, which is able to cost-effectively provide the required level and quality of timely legal services, 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. As well, in some civil areas such as income support or landlord-tenant, or in highly specialized areas within criminal or family law, or in certain geographic areas, the number of private bar lawyers may be insufficient to meet demand. In other situations, such as brief services, emergency legal services or legal services which are closely connected to other socio-legal issues, it may also be appropriate for staff lawyers to be used. 39 Trebilcock, pp

107 Participants in the consultations praised the abilities of LAA staff lawyers and suggested that they provided superior service in specific areas, such as family law and working with youth. Participants were split on whether LAA should establish a public defenders office. Most supported expanding the number of staff lawyers into areas where the availability of private bar lawyers is limited, such as in family law. However, in areas such as criminal, it was felt that there was an adequate number of lawyers and that staff lawyers might reduce access to independent defence counsel. Those who did not support it felt it would negatively impact choice of counsel and counsel independence, as well as representing a conflict of interest. It was also pointed out that LAA is a training ground for private bar criminal lawyers and that moving to a staff model would significantly curtail the development of expertise within the criminal bar. Those supporting the concept felt it would increase effectiveness and efficiency. g-1) Adult Criminal Law Office LAA does not currently operate an adult criminal law office. These types of offices exist in many jurisdictions including the United Kingdom, Scotland, New Zealand and Ontario. These jurisdictions report the following advantages: Quality of service is maintained or improved (well-structured files); Greater likelihood of charges being dropped; Earlier case resolutions; Provides an opportunity to explore alternative methods; Mentoring and training opportunities for junior staff; Efficient case-management; Achieved resolutions are fairer to clients; and 87

108 Offices do not adversely affect the private bar. They also report the following disadvantages: Not cost-efficient because of start-up costs and overhead; Staff recruitment problems; Difficult to maintain quality-control across the offices (i.e. pinpointing and implementing necessary changes across various offices); Negative private bar response leading to few cases; Types of cases dealt with by staff office skewed to particular areas e.g. bail; Success dependent on public perception and political climate; and Efficiency depends upon the number and composition of cases and number and the experience of staff lawyers. A table setting out the pros and cons of criminal staff offices is found at Appendix J. Ontario s Evaluation of Criminal Law Offices Third Year Report confirms many of the findings of previous research into staff law offices. 40 The three CLOs were established in 2004 to supplement criminal judicare service. However, as the two of the sites chosen were among those areas where the heaviest withdrawal of service occurred during the Ontario bar s dispute with LAO over judicare tariff rates, 41 stakeholder hostility and resistance became a big factor in their implementation and significantly handicapped their ability to operate effectively and efficiently. As a result, they experienced difficulty in attracting staff. 42 In spite of that, it was found that the CLOs had identified and shown the benefit of addressing unmet legal needs that were not addressed through the judicare system: cases that were denied because they were 40 Robert Hann, et al., Evaluation of Criminal Law Offices Third Year Report (LAO: Toronto, 2008). 41 Hann, p These and the following findings are taken from Hann, p unless otherwise specified. 88

109 unlikely to result in the accused going to jail; enhanced services for special client groups such as those with mental health issues or Aboriginal persons; certificate cases for which no private lawyer could be found (notably cases the private bar finds difficult to handle given the tariff rates); and systemic issues, through law reform and outreach, including special problems facing persons incarcerated in mega-jails. The evaluation noted that CLOs could not earn enough in imputed tariff fees to cover their operating costs but felt that the issue was one of a too low tariff rather than the productivity of the offices. Unfortunately, the evaluation did not discuss target staff lawyer caseloads but rather dealt with productivity from the perspective of number of pending cases and clients assisted by all staff. Given that CLOs handled both certificate and non-certificate cases, as well as other services, the evaluation cautioned against direct comparison with the private bar and also urged LAO to confirm the balance it expected between these activities. Having said that, it appears from the report that, for instance, the Brampton office had an average caseload of 115/lawyer in year three (345 cases closed with three lawyers); Ottawa had an average caseload of cases/lawyer (310 closed with three lawyers); and Barrie had an average caseload of cases/lawyer (251 closed with two lawyers) 43. It should be noted that the CLOs used a combination of lawyers and paralegals (community legal workers) as staff the latter being found to spend too much time dealing with administrative matters better left to clerical staff. It was also found that staff lawyers spent amounts of time similar to that of private bar lawyers, in the handling and closing of certificate cases. Quality of services by the CLOs was found to be as good, or in some cases better, than 43 See Hann, p. 19 for the data. The calculations and inferences are LAA s. 89

110 that offered by the private bar although concerns were raised over the number of guilty pleas and file documentation. Other benefits of the CLOs were identified as follows: Being a test environment for experimenting with innovative service delivery approaches and staffing, as well as alternative monitoring, accountability and quality assurance strategies; Providing resources to handle specific cases or law reform issues; and Being an environment within which to collect better operations data in order to understand costs and the effectiveness of LAO procedures. This leaves the issue of cost. As the research shows, cost-effectiveness is a function of the level of the tariff, the sum of staffing and overhead costs, and the productivity of staff lawyers. A comparison of possible private bar and staff office costs for LAA in selected locales is set out below, using an average staff lawyer caseload of 250 files a year: Region Fort McMurray Grande Prairie Peace River Calgary Certificates ,644 6,933 Private Bar Total Estimated Costs 779, ,793 1,622,598 7,218,925 Average Cost per case 1,258 1, ,041 Staff Law Offices Total Estimated Costs 823, ,459 1,688,869 7,003,962 Average Cost per Case 1,328 1,520 1,027 1,010 Estimated Cost Difference Total Estimated Costs (43,271) (214,666) (66,271) 214,963 Average cost per Case (69.75) (482.40) (40.31) Percentage Cost Difference (5.55%) (46.49%) (4.08%) 2.98% 90

111 As can be seen, staff offices in the smaller centres are more expensive than the use of the private bar, with differences ranging from 4% to 46%. A Calgary staff law office is slightly less expensive than the use of private bar lawyers with a savings of 2.98%. The low level of LAA s tariff is likely the main reason for these findings. As for staff costs and productivity, it remains to be seen whether or not an annual caseload of 250 is reasonable for a staff lawyer. That number is significantly above the apparent level attained by Ontario s CLO staff lawyers. It is somewhat below the 280 suggested by the Manitoba Report for criminal cases but significantly above the 180 which the same report suggests would be the standard for family cases. It is suggested that the jury is still out on what constitutes productivity and an appropriate caseload level. What does this mean for LAA and the need or feasibility of opening an adult criminal law office? Unlike family law, there has been no shortage of criminal law practitioners in the larger centres in Alberta. Even more importantly, as was found during the consultations, the private bar is extremely resistant to the concept an aspect that could make implementation difficult. There is also no significant cost-saving. As a result, LAA is not recommending the establishment of an adult criminal law office. g-2) Alternatives to an Adult Criminal Staff Office In addition to exploring criminal staff offices, this Report also considered the feasibility of a joint civil law and enhanced criminal duty counsel office in Wetaskiwin. This would address the significant need for family law practitioners, a need which is currently not being met by the private bar. As well, the enhanced duty counsel would produce efficiencies as outlined in a previous section. One staff criminal duty counsel should be sufficient to provide the required services. One full-time and one half-time staff lawyers would handle the civil matters, using a 91

112 target caseload of 150 cases per lawyer for civil cases. With that staffing level, the following comparison can be made: Number of Certificates for 2008/09 = 215 Roster Lawyers Staff Law Office Duty Counsel Managing Lawyer $135,000 Ad Hoc Duty Counsel Costs $195,187 Staff Lawyer Salaries 165,000 Private Bar - Civil Support Staff 51,000 Certificates Costs $311,206 Benefits 38,610 Overhead allocation 49,880 Legal Disbursements 25,000 Total Costs for Civil $361,086 Occupancy 130,000 Other G&A (direct cost) 13,760 Overhead Allocation 49,880 Total Costs for Roster Lawyers $556,273 Total Estimated Costs $608,250 Roster Lawyers Civil Case Average Cost Staff Law Office Civil Case Average Cost Total costs without DC $486,150 Average Cost per Civil Case $1, Average Cost per Case (civil only) $2, Increased Cost For Staff Office Civil Cases Difference in Total Costs $51,977 Difference in Avg. Cost/Case $ Percentage Cost/Case Difference 34.64% The higher staff office costs for civil certificates would be offset by lower annual costs for duty counsel, i.e. the $73,087 difference between the duty counsel salary/benefits and the cost of duty counsel certificates, as well as possible savings through early case resolution. In addition, this office would meet need the need referred to above, in family law matters. Finally, this office could also provide family enhanced duty counsel for further savings. From this analysis, it appears that smaller regions with fewer certificate cases may benefit from a mixed staff office, as opposed to a specialized office. 92

113 8. Options for Effectiveness and Efficiency Legal Aid Alberta must manage the services it provides within the resources provided. In order to do this LAA may need to consider some changes to its current business practices. Cost-reduction without concern for the impact on client outcomes may result in a number of service delivery changes including: increasing wait time standards resulting in reduction of administrative staff; increased use of automated systems, elimination of choice of counsel; and changes to tariff and procedures to reduce the need for LAA-lawyer interactions. It should be noted that stakeholders were already concerned with delay and wait times. a) Monitoring Performance Monitoring performance, at both the macro and micro levels, provides information that is critical to determining how effectively and how efficiently LAA meets its clients needs. Currently, LAA uses a number of vehicles to obtain this information, including: a formal performance management process for all staff; supervisor/peer reviews of case files at the Family Law Office and Alberta Law Line; comparison of monthly caseload/workload benchmarks and expectations to actual activity (in some programs); monthly reporting of financial activity, including flagging specific expenditure variances from budgeted or forecasted amounts. A number of programs have been formally reviewed or evaluated over the past few years including the Family Law Office, the Alberta Law Line and Brydges Duty Counsel. In addition, for the past six years, LAA retains PRA Inc. (PRA) to conduct a survey with legal aid applicants. The survey asked applicants about their experiences in applying for legal aid across a number of dimensions, including timeliness of service and quality of service from LAA. 93

114 Recipients of legal aid were also asked about the service they received from their legal aid lawyer. Overall, respondents reported positively on the quality of service they received from LAA, including the quality of service from LAA staff, the services received when applying for legal aid, the quality of service from their legal aid lawyer, and the quality of overall services received from legal aid. Generally, the results across time have been remained stable, indicating a consistent level of service from LAA. This is somewhat countered by the feedback received from the Review Focus groups where the prevailing top-of-mind perception of Legal Aid Alberta among those who have applied or have been clients is largely a negative one of very busy legal aid offices, strict criteria for who can receive aid, lawyers who are not very responsive, and suspected over billing for services rendered in some cases. Among those who received legal aid services, many had complaints about the responsiveness and effectiveness of the lawyer they were assigned. In some cases, they believe they simply weren t good lawyers, while in others, they felt they didn t get served well because they were legal aid clients. However, there were some participants with a more favorable impression of legal aid services in Alberta. These individuals felt they did get good service from their lawyer, or at least that some lawyers are simply better than others. However, LAA realizes that these measures are just a start. Ongoing improvements in its technology and software platforms will enable it, over time, to collect and analyze performance data across the organization. Performance monitoring needs to address three aspects: service delivery inputs and outputs (including tracking changes in types and volumes of service and support activities, as well as in resources required and costs of service activities); outcomes of 94

115 the services from an individual client perspective (including the type of legal solution, duration, need for client to require further services, change of counsel, etc.); and impacts of types of services and supports on the clients and their outcomes, on LAA itself, on other stakeholders in the justice system and on other government or non-profit agencies who are involved with LAA s clients. (See Appendix K for an overview of one type of measure, the Social Return on Investment.) Proper, meaningful performance monitoring requires time, resources and appropriate technology. It also requires that LAA and its stakeholders have a common understanding of what are the desired outcomes of various aspects of service delivery and how they can be measured. It will also require resources, some of which may not be available in the short-term. As a result, LAA will need to find innovative ways to continue to ensure it knows how effectively and efficiently it provides its services. b) Quality Assurance Legal Aid Alberta is committed to providing quality legal services to its clients. In order to ensure it does so, it must have quality assurance programs. When one considers the perspective of the private bar to a staff lawyer model, and the public perception that the legal aid lawyer provides inferior service, the need is only strengthened. Some stakeholders have voiced concerns about the perceived level of service quality received by some clients in certain instances. Currently, to be placed on the LAA roster, lawyers (and students-at-law) must only be registered with the Law Society of Alberta. In some exceptional cases, a lawyer from another Canadian province may be permitted to join. They complete an application online or by mail. 95

116 Other than that, there are no other requirements. LAA currently deals with complaints on a caseby-case basis and attempts to resolve conflicts between clients and lawyers. Stakeholder participants were split on whether LAA should introduce more lawyer quality assurance. Those who favoured moving beyond a complaint based system believed it was needed to ensure quality of service and increase public confidence. It was suggested every client should have an opportunity to provide feedback to LAA on their experience. Others felt additional quality assurance was an unnecessary expense that might cause more lawyers to be reluctant to take legal aid cases. They also pointed out that accountability already rests with the Law Society of Alberta. A number of people questioned the wisdom of LAA establishing a monitoring and regulatory process for lawyers when such a system was already the mandate of another organization in Alberta. Law Society of Alberta representatives suggested that LAA would have difficulty getting their organization s consent to introduce a separate process. Instead, LAA was encouraged to consider a better orientation program for student and new roster lawyers and to introduce a mentoring service for young lawyers doing legal aid. Since LAA currently has no standards or mechanism in place to ascertain service quality beyond its own staff offices, it is not possible to objectively support or refute any negative perceptions of service quality within the current process. However, the Law Society needs to continue to work with LAA to ensure that, where a lawyer has provided sub-standard service to a legally-aided client because the client was legally-aided, action is taken to ensure that existing and future clients receive quality service. 96

117 It is suggested that quality assurance is not the same as licensing, although there is overlap. Many, if not most, legal aid plans have quality assurance programs. The elements of those programs, and some of the other plans who use them, are set out below: Selected Features of Legal Aid Quality Assurance Programs Element Plans Features Accreditation (as a panel standard) Accreditation (as a panel standard) England In conjunction with Law Society, accreditation program for duty solicitors Quality Marks: general quality mark, specialist quality mark, family mediation quality mark W. Australia Annual certification under the Law Society s Quality Practice Standard (includes audit of client files) Compliance Audits England To check compliance with rules and terms of contracts with lawyers; with manual for police station and court duty solicitors Compliance Audits New Zealand Random sampling, to check compliance with legislative and contractual obligations; conducted by experienced legal aid lawyers File Review England are piloting a Quality Assurance program for private bar criminal defence lawyers File Review Ireland Review of in-house solicitor files File Review New Zealand Peer review of private bar being developed (used Public Defence Service to benchmark quality) File Review Ontario Criminal Defence Office staff lawyers files; reviewed according to a five point scale with three being the competence threshold; reviewers are experienced senior counsel who have been trained to do file reviews File Review Scotland Review of private bar files (two per year) by experienced legal aid lawyer (more an audit) Panel Standards (other than accreditation) Panel Standards (other than Ontario annual minimum number of completed files, contested trials, preliminary inquires or appeal OR minimum percentage of practice concentration in previous two years and ongoing; mandatory professional development for criminal, family and refugee law panels New Zealand Requirements for induction, training, mentoring as Duty Solicitor 97

118 Selected Features of Legal Aid Quality Assurance Programs Element Plans Features accreditation) Practice Audits Hong Kong Departmental monitoring committee reviews Practice Audits Queensland Performance targets, auditing of in-house and private bar lawyer files Practice Audits New Zealand Public defender service audited at both internal and external level Practice Audits South Africa Regional audit teams and supervisors reviewed consultation notes; all justice centres Service Audits W. Australia Service standard targets set by Attorney General Department; community legal centres audits for efficiency of operations Staff Performance Reviews Service recovery programs many Some performance reviews include feedback from judges and magistrates, as well as monitoring in courts as well as offices many Some are actual service recovery programs; others simply respond to individual complaints Surveys South Africa Client satisfaction Surveys W. Australia Client satisfaction Other England Secret shopper Other Queensland Guidelines for client interactions Other South Africa Checklists for practitioners During the consultations, LAA was made aware of another instance of lawyer quality assurance through the Office of the Child and Youth Advocate s Legal Representation for Children and Youth Office (LRCY). LRCY performs compliance and service audits on lawyer s files to ensure that lawyers meet the administrative and timing expectations of the program. Legal aid plans which conduct audits and file reviews have found the following benefits: it pre-establishes expectations and recognizable standards for staff and clients; provides regular feedback for staff according to set criteria; provides corrective data and feedback from 98

119 stakeholders; enhances ability to tailor services to needs; and ensures that funds are well-spent. The disadvantages of audits and reviews are: as performance is geared towards a specific skill set, it may preclude the development of alternative skill sets; provides a lack of incentive to strive beyond or around standard; increases administrative burden and diminishes the focus on substantive work; can be costly and time consuming; and may screen out potentially good roster lawyers (e.g. junior lawyers). Most legal aid plans have a service recovery or complaint process as part of their quality assurance program. Service recovery not only deals with the client s current problem; it may uncover systemic issues such as ineffective policy or sub-standard service delivery. It is suggested that LAA s audit and control functions relating to both clients and lawyers should be redesigned on the principle that most clients and lawyers are not trying to bilk the system. Modern conflict management tools and techniques should be utilized in cases where poor service and/or abuse by client or lawyer appear to exist. Best practices (such as random audits with preset criteria, standards and consequences) 44 should be implemented and managed by professional staff. The development of a quality assurance program would benefit clients, lawyers, and stakeholders by implementing quality standards that must be met before being admitted to the LAA roster, as well as specific standards of experience for complex cases. Ideally, LAA would implement this through the creation of a Quality Assurance Office. The Quality Assurance 44 Legal Services Commission, Independent Peer Review, (LSC: London, 2005) at p. 5: The consultation responses and the intelligence we have gathered so far, clearly demonstrates a broad and widely held belief that peer review is currently, and for the foreseeable future, the most accurate and fair assessment process to determine the quality of legal advice and legal work. Nevertheless, general quality standards such as the Specialty Quality Marks [general, specialist, bar, & family mediation] and LEXCEL remain vital to ensure sound management, financial control and client care. LEXCEL is a scheme for any type of practice to certify that certain standards have been met following independent assessment, which the LSC plans to adopt for new contracts from 2010 onwards. 99

120 Office would be responsible for initially developing and implementing quality standards; investigating client complaints and undertaking service recovery; and developing and maintaining an ongoing audit, review and performance monitoring process. Implementing this program on a province wide basis would likely require a staff of two full-time, experienced lawyers at $125,000 each plus one assistant at $60,000 to support the program. There would also be other overhead associated with this option. However, the implementation of panel standards and quality standards could be undertaken without a full QA office being in place. As well, LAA can beef up its client complaint process, possibly through moving to a service recovery or ombudsman model, which with additional training could utilize current resources. At the same time, LAA and the Law Society should explore ways of working collaboratively to develop elements of a quality assurance program. It is important to remember that a quality assurance program is more about improving client outcomes and lawyer retention, than it is about cutting costs. More details on the benefits and concerns of operating a quality assurance program are set on in the Context Paper, Quality, at the end of this Report. c) Roster Lawyers and Family Resource Facilitators The Youth Criminal Defence Office, Family Law Office and Central Alberta Law Office use family resource facilitators to help clients have greater legal success and achieve better outcomes. They play a key role in supporting both clients and lawyers. When youth are in criminal diversion programs, they work with facilitators to better understand how to complete tasks and improve their behaviour. At the Family Law Office, facilitators work with parents to regain custody of their children, stabilize their home environment, and to overcome whatever 100

121 other challenges lay in their way. In doing this work, facilitators are also aiding lawyers in keeping files updated and well documented. Consultation stakeholders frequently mentioned the need for additional services such as counseling and information resources. LAA believes making Family Resource Facilitators available to LAA roster lawyers would be a benefit to both clients and lawyers. This could be piloted in one location to determine how frequently the service would be utilized by the roster and how best to facilitate it at the cost of approximately $60,000 for the first year. d) Cost-effectiveness Measures Streamline and Improve Business Processes: Consultation participants noted that LAA needed to improve its processes, as clients frequently had difficulty meeting with LAA staff or having a lawyer appointed to represent them. In addition, stakeholders noted that communication needs to be improved and that LAA staff should be trained to show more sensitivity to clients. Focusing on the needs of clients as opposed to those of administration, LAA would identify bottle-necks and redundancies in its processes, particularly those where information is obtained and/or documented multiple times during the course of a client s, applicant s or lawyer s experience with LAA. Streamlining of business processes and empowerment of staff would result in opportunities for increased automation, integration and sharing of data and reduced costs (over time). Other changes in business processes could reduce costs and improve productivity, through the increased and targeted use of audio- or video-technology, 101

122 web applications and other mobile technology. 45 It should be noted that implementing process improvements will entail an upfront cost for technology and infrastructure supports as outlined in the section on the Legal Services Centre pilot. Improve purchasing practices through the expansion of preferred vendors and resulting vendor discounts: LAA successfully initiated a Travel Assist program for lawyers, which saves LAA 5-10% on travel costs by negotiating discounts with airlines, hotels, and car rental agencies. A similar program could be implemented for other legal disbursements such as psychologists, translators, process servers and expert witnesses. Currently, lawyers choose their own specialists for certificate work. With a healthy list of preferred vendors, it would be possible for LAA to negotiate discounts and utilize direct billing. This would result in better control over these expenses, as well as reducing administrative costs. If LAA was to establish preferred vendors for services such as process serving, psychologists, drug and paternity testing and so on, it is reasonable to expect savings of 5% to 10% of disbursements, simply by leveraging costs. This would equal about $15,000 to $30,000. The real value would be seen through reduction of soft costs such as transaction 45 South Africa: Legal Aid Board of South Africa: Legal Aid Board Meets Government Targets with Automated Applications System Bytes Technology Group (BTG) helped to implement a cost-effective, automated, and integrated workflow and document management system that manages the entire life cycle of a legal matter, from both an administrative and financial viewpoint. casestudies/gov_legalaid.mspx UK: Managing Legal Aid Cases in Partnership Delivery Transformation, (LSC: December 2008) at p. 4: Following consultations, LSC is planning to increase reliance on, and streamline, their electronic working so as to better the client s experience of the legal aid process, reduce our administrative spend and increase value for money for the tax-payer, decrease the administrative burden on providers, and modernise the delivery of legal aid services. Online dispute resolution (ODR) technology: Gralf-Peter Calliess, Online Dispute Resolution: Consumer Redress in a Global Market Place (2006) 7:8 German Law Journal at 647: ODR is a means to achieve some of the most powerful legal ideas of the Western legal tradition ; see also Ellen Zweibel, Online Dispute Resolution: in Julie MacFarlane, Dispute Resolution: Readings and Case Studies, 2d ed. (Toronto: Edmonton Montgomery Publications Limited, 2003) pp. 517 to 556: On-line legal services a new way of looking at provision of legal services and practicing law; the promise of inexpensive legal services to the masses, especially the previously excluded middle class ; expands concept of services provided and expands providers to include non-lawyers. 102

123 costs (e.g. purchase order processing, invoice processing, etc.) and reduced administration handling duties, as the number of vendors is reduced. e) Block Contracting Rather than funding legal aid work on a case-by-case basis, a legal aid plan could block fund. Through a block contracting process, a lawyer or a law firm would be awarded a fixed number of cases for a fixed fee. This reduces administrative expenses for both the plan and the lawyer or firm and brings some predictability to a lawyer s legal aid practice. In the United Kingdom, preferred suppliers are given the opportunity to bid on a certain volume of files. 46 The firm s fee will be the amount they tendered. Ontario s 2008 Review of Legal Aid noted that the benefits and risks of block tendering included 47 : Benefits: lower cost per case; development of expertise in local bar; Risks: compromise quality as lawyers have an incentive to resolve matters quickly; takes away freedom of choice of counsel from the client; Options to address risks: have multiple contracts, from which a client can choose provider but this would only work in large urban areas; Costs: need resources to monitor level of services and economic sanctions if service quality expectations are not met; need to ensure these costs are not more than the costs of monitoring and administering the certificate system. The Ontario Review also noted that a previous, major Ontario report concluded that block tendering is not appropriate for family law and there is not a thick enough market of legal service providers for block tendering to work in Ontario. 46 Information on block tendering may be found at 47 Trebilcock, pp

124 For LAA, the bulk contracting of specific legal services, such as Duty Counsel in remote or rural centres, currently provided by the private bar could result in cost reductions. 48 It would be important to ensure that quality standards were developed and enforced. 49 Both research and feedback during the consultation process indicates that, for Duty Counsel services that are bulk tendered, there would be more consistency and quality in service delivery, as well as better opportunities for early case resolution. An examination of the costs of Duty Counsel coverage in two locations, Cochrane and Whitecourt, illustrates the potential. In Cochrane, docket court is held on average 13 days a month, or 156 days a year. LAA spent $19,106 and 19,077 for ad hoc Duty Counsel coverage in Cochrane in 2007/08 and 2008/09 respectively, for an average annual cost of $19,092 or $122/day. In Whitecourt, docket court is held twice a month, or 24 days a year. LAA spent $4,418 and $31,884 for Whitecourt ad hoc Duty Counsel coverage in 2007/08 and 2008/09 respectively, for an average annual cost of $18,151 or $756/day. Because of the differences in costs between the regions, it would appear (on the surface) that a block contract would provide savings in some regions, but perhaps not in others. Each region would have to be more closely examined as it is to put a hard number on the savings at this time. f) More Effective Collaboration As a province-wide organization which provides services to Albertans across a broad spectrum of legal needs, LAA is uniquely situated to become a vehicle for bringing people and 48 Lord Carter of Coles, Legal Aid: A Market-Based Approach to Reform (United Kingdom Department of Constitutional Affairs: London, This report advocated for bulk tendering as a cost-effective measure. 49 LSC s quality framework sits within the context of their process for commissioning services. The LSC is pursuing three quality strands: 1) gateway quality standards (SQM & LEXCEL), 2) procuring services where possible that exceed the minimum standard (e.g. firms that offer extended hours & outreach services), and 3) giving clients better information on the quality of providers, to harness consumer choice to improve standards. 104

125 organizations together. A client-focused model works best with collaboration and partnership amongst the legal aid plan and government, justice system stakeholders, other non-profit legal service providers, and social services agencies. There may be a full partnership where each are contributed through staff or other resources toward common service provision, such as the partnership between LAA and Alberta Justice which has resulted in the Law Line-LInC advice service. Or, there may be situations where parties agree to collaborate and assist each other on specific matters or with respect to specific clients by providing referred legal and/or social services. 50 However structured, more communication and collaboration between LAA and its stakeholders and other service providers is critical for moving forward. The need for better, more frequent communication and meaningful collaboration were themes that came through strongly during the consultation process. Feedback from LAA s needs assessment and other studies suggests LAA is bureaucratic and creates barriers for clients and referral agencies who want to access its services. LAA could do business better by enhancing its stakeholder and community involvement. For example, through Alberta Law Line, Edmonton public legal education providers meet regularly to stay current with each others services and to coordinate and collaborate on service provision. This type of forum could be expanded across the province and adapted for other types of services or used simply as a vehicle for exchange of ideas and as a clearinghouse for service delivery innovation. 50 The Law Foundation of Ontario and Legal Aid Ontario have collaborated to produce Articling Fellowships to help Legal Aid Ontario expand services to clients who are barred from services either due to location or language difficulties. The fellowships -- some of which involve partnerships between service providers - allow LAO and clinics to hire law students who speak a specific language or can serve where needed in rural and remote areas across the province for the 2010 articling year, in Legal Aid Ontario, Information for Lawyers Hot Bytes, News for Lawyers: Articling Fellowships Help Legal Aid Ontario Expand Services to Clients (May 2009), online at htttp:// accessed October

126 Partnering with more organizations has proven to help disadvantaged groups gain easier access to legal aid and legal resources. For example, Legal Aid Alberta has partnered with the Alberta Council of Women s Shelters to provide their clients with a dedicated phone line for information and advice, as well as a more streamlined certificate application process. Law Information Centres at the courthouse have a dedicated line for clients to contact the Alberta Law Line. Partnering opportunities for LAA could include: LAA offices and pro bono clinics partnering on offsite access to applying for legal aid; LAA and Court Services working together to develop on-line services; and Social service providers working directly with LAA staff or staff law offices to meet associated client needs. To ensure optimum benefits and awareness, more formal partnerships with respect to interagency referrals should be considered. LAA has seen the benefit of formal partnership with Alberta Justice s Legal Information Centres and with the Alberta Council of Women s Shelters. Increased formality ensures that mutual objectives can be developed and service measured against them. It improves client experiences and outcomes. g) Tariff Restructuring Active participation of the private bar is a fundamental component of the successful delivery of LAA services. Over the past few years, LAA has experienced a significant decline in the number of roster lawyers willing to take certificate clients. Below is a chart that illustrates the decline: 106

127 Active Lawyers on Roster Active lawyers are defined as lawyers who have been issued a Legal Aid certificate in the last two years. Lawyers who have been issued a Legal Aid certificate in the last year have been shown for comparative purposes only Mar/06 Mar/07 Mar/08 Mar/09 Aug/09 Lawyers issued a certificate in the last 2 years Lawyers issues a certificate in the last 1 year A component of achieving sustainability through doing business better, and ensuring the continued support of LAA by the private bar, is to look at how LAA compensates its roster lawyers. Legal aid plans have many ways of paying roster lawyers. Some jurisdictions pay a combination of hourly and fixed fee tariffs. For example, in Manitoba and Saskatchewan, a legal counsel on a bail hearing is worth a fixed dollar amount, a robbery trial a different fixed dollar amount, and so on regardless of how many hours are actually involved. On the other hand, Ontario, British Columbia and New Zealand traditionally used a tiered system. While lawyers bill according to the number of hours they have worked on a file, hourly rates depend on the lawyer s level of experience, up to the maximum number of hours granted by the certificate for the accused. Additional hours, for example, in complex cases may be requested by the lawyer and it is then up to the discretion of the granting officer / committee to decide whether or not to increase the certificate for that particular client Information on BC s tariff and cap may be found at (accessed on July 30, 2009). Information on NZ s tariff and maximum allowable hours may be found at (accessed on July 30, 2009). As of the fiscal year, Ontario legislation prevents a lawyer from being paid more than 2,350 hours of service in a given year unless specifically authorized by the president of 107

128 Lawyer dissatisfaction with tariff rates seems to be the norm, as they are uniformly much lower than market rates. A 2008 survey of both roster and non-roster Alberta Lawyers indicated that the most common reason lawyers do not want to handle legal aid certificates (or for wanting to handle fewer certificates) were the low tariff fees (67%). Numerous reports in Canada have noted the need to raise tariff rates so that roster lawyers can be recruited and retained (e.g. Ontario s 2008 Trebilcock Report and the 2002 Holden-Kauffman report). Tariffs could also be restructured as well to compensate lawyers based on one or more factors severity or complexity of the case; potential harm to the client; years of experience of the lawyer; and/or whether early resolution was achieved. Senior defence counsel in Ontario remain on strike because of their tariff structure, in spite of the recent infusion of $15 million annually into Legal Aid Ontario s budget. Appendix L provides a comparison of private bar compensation across Canadian legal aid plans. Legal Aid Alberta primarily uses an hourly tariff which is set at $84 an hour. There are some fixed fee items, such as guilty pleas. LAA s current tariff has a number of deficiencies that have been identified in PRA s Needs Assessment; in lawyer surveys and during the stakeholder consultations for this Review. The main issues are: A rate well below the market rates for legal services: Almost all consultation participants felt that the tariff rate is significantly too low. The market rate for legal services continues to climb. Canadian Lawyers annual legal fee survey found national averages for hourly rates range from a low of $190/hour to a high of $360/hr. 52 The gap between tariff and market Legal Aid Ontario. More information on ON s tariff and billing may be found at 52 Kirsten McMahon, The Going Rate: Canadian Lawyer Legal Fees Survey in 2008 Canadian Lawyer (July 2008), at p

129 continues to increase because of inflationary pressures. The low tariff has been frequently cited as a disincentive for lawyers to do legal aid work. o Options: Increasing the tariff hourly rate, which could only be done with significant, additional revenue: The cost of delivering services through staff offices is approximately $140/ hour, based on there being 1,800 billable hours in a year. Participants at the stakeholder consultations suggested that a minimum rate of $125/hour would be required to attract new lawyers to the roster, with many suggesting that a rate of $150/hour is required for family law lawyers. Although these rates appear reasonable, and are comparable to both staff office costs and rates paid by the government for similar contract services (e.g. the rate for lawyers retained through LRCY is $120/hour), the potential impact on LAA s budget is material. Each $1 increase in the tariff rate 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. No major use of block fees : Ontario has just announced that it is modifying its tariff system so that the four most common criminal offences will be subject to a block tariff, rather than hourly tariff. Only lawyers who meet the criteria for a preferred vendor will be able to use this method of billing. The preferred vendor criteria are designed to ensure that quality does not suffer through this type of tariff. o Options: Introduce block fees for most common criminal matters: While this would not result in cost savings, it may be more palatable to the private bar. Lawyers would be able to make money at a higher rate, than with the current tariff. Limiting 109

130 this block tariff to preferred vendors would be critical to ensuring quality does not lessen. Lack of tiered rates: The tariff rate is not differentiated based on levels of experience or complexity of matter. Stakeholders disagreed as to whether or not this differentiation should occur. However, they did note that senior lawyers are more efficient and effective in resolving client s legal matters, particularly in more serious cases, and that this should be factored into the rates paid. As well, stakeholders felt that family law lawyers should be paid at the higher rate as a way to attract more lawyers to this area of practice. o Options: Tiering based on experience would require significant, additional revenue: Assuming that LAA s base rate of $84/stays unchanged, increasing the rate to $90/hour for lawyers with 5+ experience and $100/hour for lawyers with 10+ years of experience, would require significant additional dollars. Tiering, based upon file complexity might see a higher rate for level II criminal offences (e.g. $90/hour) and an even higher rate for level III criminal and all family law matters (e.g. $100/hour). As can be seen from the tables below, tiering by file complexity would be half as expensive as tiering by experience, due to the high number of Level 1 Criminal certificates: 08/09 Cost Increase at Tiering Tariff Rates by Experience Years at Bar Hourly 08/09 %age tariff Certificates 1 new rate increase 0-4 years $84 3,540 $3,089, years $90 5,380 $5,283,094 $369,817 7% 10+ years $100 25,101 $20,416,679 $3,879,169 19% Total n/a 34,021 $28,789,204 $4,248,986 15% 1 does not include Opinion Certificates and represents certificates paid, rather than issued, in 2008/09 110

131 08/09 Cost Increase at Tiering Tariff Rates by Case Complexity Complexity Level Hourly 08/09 %age tariff Certificates 1 new rate increase Criminal - Level 1 $84 21,605 $12,516, Civil - Non-family $84 3,036 $1,666, Criminal - Level 2 $90 4,821 $6,116,536 $428,158 7% Criminal - Level 3 $ $1,559,965 $296,393 19% Civil Family $100 4,391 $6,929,867 $1,316,675 19% Total n/a 34,021 $28,789,204 $2,041,226 7% 1 does not include Opinion Certificates and represents certificates paid, rather than issued, in 2008/09 It is suggested that tiering by complexity would be the better option. Complex cases require more expertise, as a result of which they are indirectly compensating for years at the bar. By way of contrast, compensating for seniority could result in LAA compensating senior counsel for doing simple matters which could be competently handled by more junior counsel. Not outcome based, e.g. no significant incentive for early case resolution: Stakeholders have commented that there may be cases where possible early resolution is not explored because the current tariff pays a higher amount if the lawyer delays any negotiation until the day of trial. This places an unnecessary burden on the justice system lengthening the trial process. Research has shown that the way in which a tariff is structured can determine the way in which lawyers handle full representation files 53. For that reason, any restructuring of the tariff must be undertaken with caution and based on solid evidence and research. o Options: Explore restructuring to encourage specific outcomes: If LAA paid the same tariff amount for early resolution as it does for a guilty plea at trial, it may result in improving the overall efficiency of the justice system. It is anticipated that costsavings will occur, as well as improved outcomes for clients through matters being resolved more quickly, and therefore at a lower cost. 53 Cyrus Tata, In the Interests of Clients or Commerce? Legal Aid, Supply, Demand and Ethical Indeterminancy in Criminal Defence Work (2007) 34:4 Journal of Law and Society

132 h) High Cost Case management LAA has spent an average of approximately $750,000 annually on individual cases that exceed $25,000 in expenditures. However, in the current fiscal year, it has already incurred $727,000 in high cost case expenditures. If this trend continues, LAA s costs may exceed $1,700,000 in 2009/10. While LAA has not had major problems in this area yet, experiences of other legal aid plans show that it is just a matter of time. The potential problems which can result when a legal aid plan does not manage high cost cases has been documented and reviewed in other jurisdictions, e.g. Ontario s Lesage-Code report and its Ombudsman s Report on the Wills case. As a result, the Ontario Government has just announced a joint initiative with Legal Aid Ontario to develop a high cost case management program. LAA needs to proactively manage the risk by developing a well-defined process for managing and monitoring these files. Identifying the types of cases, establishing expectations with the bar, and developing a process whereby cases were monitored and costs controlled without jeopardizing the client s right to make full answer and defence are no small tasks. Dedicated staff resources, augmented by external, experienced counsel, would be required. LAA is proposing a pilot program to create an outside committee of seasoned professionals that would serve on a High Cost Case Management Committee and report to the CEO. The committee would consist of three to five seasoned professionals that would be paid an honorarium sufficient to attract members with a high degree of experience in complex case management. The committee would meet on a monthly basis for one to two days (including preparation time). The staff member presently responsible for high cost cases would continue in this role, assisting the committee. 112

133 The benefits of this program include improved oversight of complex, high cost cases for LAA, an independent and objective review process, and possible mentoring opportunities for lawyers from a handful of very senior members of the Bar. The costs of this program, assuming five members meeting two days per month and paid a $500 honorarium, would be approximately $60,000 plus any incidental expenses. This pilot could be implemented effective April 1, 2010 and would be evaluated after its first year of operation based on the following criteria: Total cost of service compared to budget; Total number of files reviewed/managed; Average cost per file managed; Total value of any cost savings identified through the file management process; Lawyer participant satisfaction ratings; and Qualitative assessment of improvements realized through the case management process. Based on the results of the pilot, the service would be evaluated to determine its overall benefit to the legal aid program. It may also be appropriate to implement a cap on high cost cases depending upon the annual budget and to fund a reserve that is equal to approximately 1 year s expenditures when economically feasible. i) Legal Aid Rules Under the Governance Agreement, LAA is required to establish Rules respecting the operation of the legal aid plan. These need to be reviewed and updated on the basis of the initiatives and process changes in this Report. 113

134 k) Government Supports Provincial Government LAA believes there are a number of supports which the Province could consider to ease the burden on the Legal Aid s direct budget. Such supports could include: o Provision of government-owned office and client interview space: Over the past few years, LAA has been required to vacate space in various court houses and provincial buildings across the province at precisely the same time as building lease costs and construction costs were rapidly escalating in Alberta. The organization has been forced to incur leasehold construction costs and increased rental expenditures as a result of being required to move four offices out of government buildings. Legal Aid, as an integral part of the justice system and in order to facilitate accessibility for LAA clients, should be allocated space for client needs at courthouses across the province. Space in the courthouse will also be critical to the success of an expanded Duty Counsel service. o Government pricing and supply chain economies of scale. As a large organization, the provincial government is able to negotiate significant discounts with suppliers for goods and services such as office furniture and supplies, IT hardware and software, consulting services, airline and hotel discounts, etc. LAA is unable to leverage these discounts as an arm s length organization. o Staff pensions and benefits: Recruitment and retention has been a problem in the past and may continue to be so. LAA is often looking at the same pool of lawyers, paralegal, managers and other staff as is Alberta Justice and other government departments. While salaries have gotten closer to parity with the Province recently, they still trail. However, one of the big differences is that LAA staff is not entitled to be part of the Province s benefits and pension plan. LAA has no pension plan at all, other than a group RRSP plan, 114

135 and is the only legal aid plan in Canada without access to some type of government pension for staff. The inferiority and lack of portability of benefits within Legal Aid is a barrier to recruitment and retention of skilled professional staff. o Court-ordered counsel: The Governance Agreement between LAA, Alberta Justice and the Law Society, requires Legal Aid to provide full representation services to anyone for whom a Court has ordered that they be given counsel. These are, almost without exception, individuals who have already been refused such Legal Aid services as they do not meet eligibility requirements. LAA is the only legal aid plan in Canada which is required to totally fund courtordered counsel. The estimated costs for the provision of court-ordered counsel are considered in establishing LAA s annual budget but there is no way of predicting what they will truly by from year to year. In addition, on occasion, LAA may be required to pay court-ordered counsel more than it pays its roster lawyers. LAA has been fortunate to this point, but it is only a question of time before it will be in the same situations as other provinces, where the cost of court-ordered counsel skyrockets (e.g., Ontario s Wills case where the final cost of counsel to defend in a murder charge was just over $1.1 million). Given all of these reasons, LAA believes that the burden of cost should be borne by the government directly, rather than by LAA. The sum of $353,000 is proposed for court-ordered counsel in LAA s 2009/10 budget. LAA is of the view that it should continue to have this or a similar amount in its budget and should be responsible for funding court-ordered counsel: to a maximum of $50,000 per case; and 115

136 to an aggregate maximum of the $353,000 or whatever other amount is identified in its annual, approved budget as covering court-ordered counsel costs. If such costs reach $50,000 in an individual case or the total amount of funding expended within a fiscal year reaches the amount identified for court-ordered counsel costs in its annual budget, then LAA should not be required to cover those additional costs. Instead, they should be borne by the Alberta Justice. l) Government Supports Federal Government ways: Legal services in the area of immigration and refugee law are provided by LAA in three Roster lawyers who provide full representation services for clients at hearings before tribunals and courts; Alberta Law Line which provides legal information, referrals and advice; and the Immigration Services Program in Calgary, which provides services similar to Law Line s for its clients, as well as settlement advocacy, full client representation at hearings and court, and supports and mentoring to roster lawyers who are providing legally-aided clients with full representation services. It has been noted, both in PRA s Needs Assessment and in stakeholder consultations, that there is a need for LAA to do more in this area. The Federal Government partially reimburses the Alberta Government for LAA s expenditures in this area. However, LAA currently subsidizes this non-mandated service by approximately $800,000 annually. The Federal Government should reimburse immigration and 116

137 refugee law expenditures fully. Without that level of support, LAA may have to discontinue the service or, as British Columbia s Legal Services Society has done, provide services only up to the limit of the federal grant. It should be noted that the Divorce Act is federal legislation and that child welfare representation is a Charter-right. However, the Federal Government does not provide any funding for coverage in these areas. 117

138 9. Options for Funding Development Feedback from all stakeholders during the consultation process was very clear and very strong the funding of legal aid is a government responsibility. During the public consultations, legal aid was viewed as a public service, which should be paid for by all citizens and for which the Province should be increasing its contribution. In particular, both the Law Society and the Alberta Law Foundation stressed that it is the responsibility of the Province to ensure Albertans have a properly funded legal aid plan. Legal Aid Alberta is one of the lowest funded plans in the country, as shown on the following chart: $30.00 $25.00 $20.00 $15.00 $10.00 $5.00 $- $9.13 Per Capita Government Funding 2009/10 $11.78 $14.73 $15.45 $16.70 $17.61 $18.00 $18.51 $20.41 $22.33 $23.27 $27.70 As noted earlier, LAA would require an almost 20% funding increase (from roughly $54 million to just over $64 million) in order to reach the Canadian average. The benchmarking analysis concludes that LAA provides above average depth and breadth of service coverage within Canada at rates of provincial funding that are well below average in the country. Assuming the status quo in service delivery, it is LAA s opinion that bringing LAA s provincial government funding up, over time, from $14.73 per capita to the 118

139 Canadian average of $18.00 per capita, would virtually eliminate the organization s immediate funding shortfall (as shown in the current year revenue shortfall), but would cost the province an additional $11,948,057 annually [See the chart on page 32, Per Capita Government Funding 2009/10]. Using a 3-year average funding cycle or negotiating an agreement that the Province would cover any significant ALF funding decreases would help in stabilizing core funding. 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; stabilizing and/or expanding Alberta Law Foundation funding; client borrowing; and increasing client payments. a) Expand Services to More Clients who can Pay Legal aid plans around the world set limits on who can access their services and what services they will provide through financial and substantive eligibility requirements. Financial eligibility requirements usually only apply to full representation legal services. Normally, a person can receive most others services without meeting a financial eligibility test (e.g. for advice, brief services to resolve matters, duty counsel and other minor assistance). Most plans require that some portion of their clients pay back all or a portion of their lawyer s fees, usually referred to as the client s contribution. Many people who do not quality for legal aid full representation services in Alberta are not able to retain a lawyer privately. LAA could increase its eligibility criteria to serve more 119

140 people in need. As these persons would have higher income levels, it could result in increased revenue for LAA, particularly for matters handled by Staff Counsel. It may also be possible to increase contribution levels for higher-income clients, possibly recovering sufficient amount to self-fund legal services. There is insufficient statistical and demographic data available from to calculate the true cost or potential revenue of such a broad based service. There is also insufficient information to properly quantify the potential monetary impact of improvements to justice system efficiency associated with proper legal representation. What LAA does know from its own statistical database is that recoveries and collections from clients increase as they move up the income scale. Although LAA recovers an average of 11% of the cost of legal services from its clients, the range varies from 0% to 100% on a case by case basis. For the top 10% of qualified applicants, LAA recoveries average in excess of 25% of costs incurred, and although LAA recovers far more funds from clients than any other legal aid plan in the country, stakeholder consultations have identified opportunities to collect even more funds through more aggressive efforts at the front end of the legal services process. If LAA relaxed its financial eligibility criteria and strengthens collections efforts, the marginal cost of adding a new LAA client at higher income levels would become less and less. Some substantive areas of law for which the private bar does not readily provide services, such as motor vehicle accidents where the potential injury feel within the soft tissue cap of $4,000, could be added which could be self-funded and potentially provide an additional source 120

141 of revenue 54. If these types of cases were taken on a contingency basis, LAA could maximize the potential for positive recoveries. b) Stabilize and Increase ALF Funding The Legal Professions Act sets out the amounts which the Alberta Law Foundation must transfer annually to LAA. ALF must provide 25% of its revenues to Legal Aid and may make payments to Legal Aid, in addition to that 25%. ALF revenues are extremely erratic and unpredictable. Its revenues come from the interest paid on lawyers trust accounts. Most of the funds in lawyer s trust accounts are from residential real estate transactions i.e., purchase monies being held until the closing of the sale. When the economy is good, residential properties selling and residential housing prices rising, the amount of interest generated by lawyer s trust accounts is large. However, a downturn in the economy, along with falling interest rates and housing sales/prices, has resulted in a huge drop in ALF revenues. Since the percentage of revenues which ALF must pay to LAA is fixed, it rises or falls as ALFs revenues rise and fall. In 2008/09, ALF revenues plummeted as a result, so did LAA s funding from ALF. ALF was consulted during this Review. The Foundation supports LAA and has offered that LAA can apply for grant funding for specific programs, provided that they otherwise fit within ALF guidelines. In the longer term, it is suggested that LAA and Alberta Justice discuss setting a standard level of ALF funding, possibly based upon a rolling five-year average, which would be part of LAA s annual budget. Should ALF funding be more than that amount in any one year, 54 These examples in found in Richard Moorhead and Pascoe Pleasance (Eds), After Universalism: Restructuring Access to Justice (Oxford: Wiley-Blackwell Publishing Ltd., 2009). 121

142 the additional funding could go into a reserve fund from which LAA can draw when ALF funding drops below the standard level. It should be noted that there are risks inherent in grant funding. By their nature, grants have an end point unless renewed. If LAA were to use grants to fund ongoing legal services or programs, there could be significant consequences for stability and sustainability of such services. Grants would need to cover a five-year time period in order to use them to provide sustainable legal services and programs. Although a change to the allocation of funding would assist LAA in closing the funding gap for legal aid in Alberta, ALF s revenues are forecast to decline substantially in both 2009/10 and 2010/11. As a result, LAA s funding will also decline from $14 million at the end of last fiscal period to ~$850,000 in 2010/11. With the forecasted decline in future ALF revenues, even increasing the allocation to 100% would not eliminate the funding gap. c) Additional Client Payments: Interest on Outstanding Amounts Currently, Legal Aid advances credit to clients for the cost of their legal services without interest. LAA could charge a modest rate of interest on balances outstanding from clients, which may create an incentive for clients to make payments more quickly. However, it places an additional burden on that portion of clients who are paying clients. Using LAA s $5 million in annual recoveries as a baseline for calculation, charging an interest rate of 5% may generate an additional $250,000 in annual revenue. Aside from the ethical issue and whether or not such charges would become a barrier to accessing legal aid, Legal Aid should determine whether it needs to comply with the Fair Trading Act important in any event, but even more important once interest is being charged on 122

143 credit or loan. The Act and Regulations set out specific cost of credit calculations that must be made and provided to potential clients before they agree to accept services. Compliance extends to monthly payments and statements. An argument can be made that the statements must identify the transactions or the actual activities billed by the lawyer and for which credit has been advanced. This sounds very much like monthly interim bills, highlighting the transactions and charges of that month. This is an area that requires more specific exploration as the costs of compliance may eliminate any financial gain. d) Additional Client Payments: Application Fees Although some stakeholders believe it is inappropriate to charge application fees to those who are least able to afford to pay, some stakeholders believe a fee may have merit. They indicated that some clients fail to show up for appointments or fail to show up for court and are examples of individuals who are not committed to the process. Implementing an application fee may weed out those clients that are not committed to resolving their legal issues; however, it may also create a new barrier to access for some. However, the new service delivery process which will eliminate those cases where full representation is not appropriate may result in the same benefit without the cost or risk. It would certainly reduce the number of clients formally applying for legal aid. It should be noted that LAA had an application fee in the past and the ghost of it has been cited as a barrier to access for clients since. A $10 application fee could produce $400,000 annually less the costs to collect and process it. It should also be noted that changes to service delivery, particularly through the Legal Services Centre and Enhanced Duty Counsel, would likely significantly reduce the number of applications and resulting fees. 123

144 e) Additional Client Payments: Increase Payments and Tighten Collection Practices Legal Aid Alberta recovers approximately 10% of its full representation legal services expenditures through re-payment by clients, recovering between $4.1 to $4.5 million in each of the last three years. This is the highest percentage recovered through client payment of any legal aid plan in Canada. It would be possible to obtain further payments from clients by: requiring more frequent and larger re-payments, both through initial payments and monthly payments; and through improving its debt collection practices. Consultations with stakeholders have indicated that there may be opportunities to recover more funds from some clients earlier in the process, particularly from criminal certificates. However, LAA would need to examine whether it must comply with Alberta s Fair Trading Act which was amended in 1999 to include services provided by accountants, lawyers and other professionals. LAA clients are some of the most vulnerable Albertans. Care will have to be taken that imposition of further client payments does not create additional barriers to justice. As well, the administrative cost may mitigate against options such as application fees. It should be noted that for each of the last three options there are significant, potential disadvantages. LAA clients are already marginalized. They often do not come to LAA for services out of fear that they will not be eligible or that they cannot afford the service. Increasing client payments in any way is an additional barrier to them. 124

145 10. Options for Governance and Structure While a review of governance (oversight of the plan) was not directly part of the terms of reference for this review, governance and independence are important to successful implementation of significant change in legal aid operations. 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. Legal Aid Alberta believes it operates in a twilight world between government and non-governmental organizations. It is not a government department, commission, crown corporation or agency as are all other legal aid plans around the world, except for British Columbia and Ontario (see Appendix M Governance of Legal Aid Plans). It is not a nongovernmental organization, as are other non-profits who do not need to have their budget and business plan approved by a government minister and/or cabinet. LAA, other than PEI s plan which is a program of their Attorney General s department, appears to be the only legal aid plan that does not have its enabling authority and mandate specified by legislation. However, there is an issue as to whether such legislation is necessary. The need for independence in the administration of legal aid has traditionally been linked to the need for government to not control or not be seen to control the provision of legal aid representation on a case-by-case basis, given that the Crown is adverse in interest to the accused. However, in LAA s view, governance of a legal aid plan by an independent board or commission does not in itself ensure independence when, in the case of LAA, pursuant to the Governance Agreement, it must seek the Minister of Justice s approval on a variety of governance issues, including: board membership, mandate, tariff, eligibility, delivery methods, staffing levels and 125

146 compensation, and (in a budgetary context) operational and capital expenditures. There is a need for balance between independence, responsibilities and accountability. The Government funds LAA to operate the legal aid plan in Alberta and to provide some other services on behalf of the Minister of Justice, as set out in the Governance Agreement. The society must be able to show government that the funds it provides are used for the purpose that the legislature and government intended. LAA believes that lack of accountability to government may lead to an infringement on the society s independence. Conversely, if the society is meeting its objectives then government should be able to allow the society greater discretion in how it pursues these objects. Good governance is a key to fulfilling the requirement of accountability. A Review of Legal Aid Manitoba looked at the issue of governance for legal aid plans and noted that some of the attributes of good governance are as follows 55 : a clear statement of vision, mission and goals; a strategic plan or strategic planning process; a clear, legislated statement on the scope of core services; by- laws for the board of directors; stability at the position of chair of the board; a board orientation manual for new board members to ensure that they are adequately prepared to fulfill their governance responsibilities; knowledge of what good governance means; a focus on big-picture policy issues rather than operational details; a performance evaluation process for the executive director by the board; 55 Perozzo, p

147 a performance evaluation process for board members; a clear understanding of the respective roles of the board and the executive director; members with business or financial management expertise (the lack of these skills on the board can impair the ability of a board to adequately scrutinize financial statements and have a clear understanding of current financial realities, past trends and future projections); members with expertise on the social and economic circumstances associated with the special needs of low income individuals; a cohesive board without factionalism (insiders and outsiders); policies to ensure that political agendas do not interfere with the board's responsibility to serve the best interests of the organization; and good communication with important stakeholders, in Legal Aid Manitoba s case the private bar. LAA believes that it and Alberta Justice should satisfy themselves that these attributes are in place for the LAA Board as that would generate confidence for the Minister that the Board can effectively manage the responsibilities of providing legal aid in Alberta. In addition, LAA believes it is important for the LAA Board and the Ministry to articulate their respective objectives, goals and responsibilities. Many agencies, boards and commissions which are created by legislation enter into a Memorandum of Understanding (MOU) with their establishing government. Their establishing legislation will provide the framework for the organization s structure, functions, powers and duties. It will also, as referred to in the attribute list above, establish the scope of core services. However, an MOU is different 127

148 in that it sets the framework for how the organization and the government will work together to ensure that the legislated mandate is met. The British Columbia Legal Services Society is an organization, established by legislation, which has entered into an MOU with the Government of British Columbia. That MOU may be helpful to LAA when addressing the issues of independence, responsibilities and accountability with the Alberta Justice and the Law Society in the upcoming renegotiation of the Governance Agreement. The contents of the current MOU include the following highlights: A statement that the Society is not an agent of the Government or the Law Society of British Columbia, and operates at arm s length from the Government, under the direction of an independent Board of Directors within a framework requiring accountability for the funding it receives from the Government. The Society and the AG share a concern that exceptional matters within the Society s mandate can materially affect the Society s ability to fulfill its statutory object of administering an effective and efficient legal aid system within the statutory limit on expenditures. Exceptional matters are specifically defined in the agreement. Examples include court-ordered representation of individuals who do not qualify for legal aid, complex matters that necessitate the services of senior legal counsel, and legal matters involving eligible individuals in which a court has directed, or Government has agreed to, payment in excess of the standard fees and disbursements, as well as legal matters involving eligible individuals in which the aggregate of fees/disbursements exceeds $50,000. The MOU contains a statement of the roles and responsibilities of the AG. Highlights include consulting with and considering the advice of the Society on matters relating to 128

149 legal aid, including changes to applicable law and policy that affect the Society; and ensuring that the requirements necessary to discharge the Society s objects are understood and reflected in the Ministry s planning and resource allocation process. The MOU contains a statement of roles and responsibilities of the Society. Highlights include: applying memorandum funding only for and towards the provision of funded services and the establishment and maintenance of an administrative infrastructure necessary for the provision of the funded services; establishing and monitoring appropriate conduct, planning and performance objectives for the Society, its members, employees, and service providers; and cooperating and coordinating with other justice partners and participating in justice reform initiatives. Funded services are a specific listing of services defined in schedules of the agreement. The MOU provides specific direction on how to deal with budget surpluses and shortfalls. A standing committee (composed of the assistant deputy minister responsible for the Society and the executive director) is empowered to review budget problems as soon as they become apparent in order to determine options, including deficit authorization, additional funding, cost deferral, or modification of the funded services required to be provided under the agreement. LAA believes that by articulating the roles and responsibilities for LAA and Alberta Justice, establishing monitoring and performance objectives, and identifying the requirements of good governance, the Board of Directors for LAA should be able to meet the requirements for accountability without infringement by the Ministry on LAA s independence. The last element which LAA considers affects its governance is the present organizational structure of LAA, with its unusual feature whereby two LAA managers report 129

150 directly to the Board of Directors rather than to the CEO. That the Senior Counsels of the staff offices of the Youth Criminal Defence Office and Family Law Office report directly to the Board of Directors, rather than to the CEO, was identified as a impediment to good governance by a Canadian expert in governance best practices, Patrick O Callaghan. O Callaghan highlighted the risks of strategic and operational misalignment that could result from a lack of accountability to the CEO. 56 This is another issue that needs to be addressed in the renegotiation of the current Governance Agreement. In its narrowest interpretation, independence as it relates to staff offices is the right of staff counsel to determine the appropriate course of action for a case free of influence. This has never been an issue within the organization. LAA successfully operates five other staff law offices that are not covered by separate governance agreements, and there has never been an independence issue. Other legal aid plans across the country also operate staff law offices all under one organization umbrella without independence issues. 56 Patrick O Callaghan, Interim Report and Recommendations (LAA: Edmonton, 2008) at p

151 11. Concluding Thoughts This Report discusses options for how LAA can identify its target client population and their legal needs, and then effectively and efficiently deliver programs and services to meet those needs. The Report has also discussed the economic realities facing LAA currently and for the future. It is important to consider that how and to what extent LAA provides legal services can result in downstream costs or benefits to the other players and their actions and services can similarly significantly benefit or cost LAA. One can try for the most efficient delivery system possible (and the review will be suggesting some areas for further investigation in Manitoba) but there is only so far one can go in streamlining delivery costs. There is another area that might prove fruitful to investigate and that is the operation of the justice system. The reviewer heard repeatedly from legal aid staff and administrators and found in the various reviews of legal aid the point that legal aid does not operate in isolation. Some say that legal aid is at the end of the line. In criminal law this means that government policy, prosecution decisions and police actions will influence the demand for legal aid. It is argued that legal aid should have a greater voice when new policies are being considered so that the full cost will be known. 57 By making separate policy and funding decisions for components of the justice system, government is establishing the size and shape of the pieces without a clear sense of how they will fit or what the whole should look like 58. Canada s criminal justice system is an adversarial system. In order for the adversarial system to work, each adversary must have access to quality legal advice and representation. When resources are put into one side of the equation (e.g. increasing police officers and Crown prosecutors), increased resources are needed on the other side of the equation, namely LAA, to keep the system in balance. However, historically, funding initiatives in programs, such as Safe 57 Perozzo, p Perozzo, p. 74, quoting from the 1996 Nova Scotia review on the issues of integration and independence. 131

152 Communities, which have promoted increased hiring of police officers and prosecutors have not taken into account the impact on potential accused or LAA. Similarly, when LAA instituted a policy requiring court mediation prior to an application being considered in family matters, Court Services were overwhelmed with demand that they could not meet. Cooperation and consultation is in the interests of justice since it promotes understanding and allows each component of the system to make the kinds of adjustments needed to make better use of resources and deliver improved service. 132

153 12. Recommendations Legal Aid Alberta operates within a complex environment which has changed a great deal since many of the policies and procedures of Legal Aid Alberta were first developed. With all of these changes, it is clear that the traditional method of providing legal aid services- one client, one lawyer with full representation focused on the courts, - is no longer sustainable. People s legal needs are also changing and are not being addressed within the current legal aid scheme. It is suggested that the nature of legal aid services and delivery methods must be rethought in order to better address people s legal needs. Although this Review has discussed new directions for Legal Aid Alberta and service delivery changes, it remains imperative that Legal Aid Alberta receive adequate, sustainable funding. The resulting changes to service that would have to be implemented should further reductions in funding or revenues occur have been outlined in the Report. The cut to the bone approach, discussed in Section 6 (b) - Provide Only the Mandated Services, is not recommended by LAA due to the severe, long-term consequences of such an approach. LAA believes that one of the first services to be terminated would be Duty Counsel. However, this approach leaves the legal needs of Albertans unaddressed, compromises access to justice for low-income Albertans, and there were fears that the outcome would have negative consequences for both the efficiency and effectiveness of the justice system. It is likely that the number of unrepresented people in the courts would increase. As a result, money would not be saved in the system overall, as other areas of the justice system would have to pick up the slack. These possible outcomes were unanimously viewed as unpalatable to the public 133

154 throughout the public consultations and were viewed as creating serious negative consequences to the justice system and for vulnerable Albertans. Instead, the recommendations will look at other options, such as the temporary reduction of FEGs and service delivery changes designed to tailor services to client need and to promote early resolution. While addressing the current reality, the recommendations have otherwise been based upon the priorities established and target client group identified in Section 5: Legal Needs of Low-income Albertans. Many of the recommendations build on and complement each other. They are designed to assist LAA in meeting the legal needs of low-income Albertans in a way that, cost-effectively, provides good outcomes for clients, for LAA and for other stakeholders. It is recommended that Legal Aid Alberta re-design its services using a client focused approach, based on three principles: 1. Focusing on improving client outcomes and resolving, mitigating and preventing legal issues effectively and efficiently 2. Providing an escalating range of service delivery levels from first contact, advise and brief services through to full representation in a way that provides clients with the right services at the right times and 3. Providing full representation legal services only as a last resort. It is recommended that these principles be implemented through the following changes in Legal Aid Alberta: A. Reduce LAA Financial Eligibility Guidelines by 30% to 50% to help address its funding/revenue reductions. 134

155 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 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. 135

156 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. 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 (e.g. 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 e.g. 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. 136

157 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 reallocate its approved budgeted resources, as it considers necessary to fulfill its responsibilities/obligations under the Agreement. LAA is cognizant of the current economic environment and the projected reduction in revenue available to LAA for at least the next fiscal year as a result of the decrease in the Alberta Law Foundation Grant. In order to make the recommended changes to Legal Aid s services and service delivery models and concurrently addressing the reduction in funding, it is recommended that the Financial Eligibility Guidelines be reduced by 30% effective immediately. 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: 137

158 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: 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; 138

159 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 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 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 139

160 Saving and Cost Impact Summary for 2010/11 Recommendation/Option Savings/New Revenue New Expenditures Net Impact 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,

161 13. Appendices Appendix A - Terms of Reference Future Directions: A Review of Legal Aid Alberta 2009 A. Overview This project will produce options to ensure that current and future service delivery is targeting the appropriate, priority legal needs of Albertans. It is anticipated that review will be completed and approved by October 1, B. Terms of Reference Legal Aid Alberta (LAA) requires that research be undertaken and advice and recommendations provided with respect to future directions for the design, scope and delivery of legal aid services through LAA. In particular, advice is sought on the following issues: 1. What are the legal needs of Albertans of limited means? 2. Having consideration for those needs for which LAA is required to provide legal services (pursuant to the Charter of Rights, common law, legislation or the governance agreement), which of the identified legal needs most require the provision of legallyaided services and in what priority? 3. What are the most effective and efficient options for providing legal services to meet the needs in question #2? 4. Who should be eligible for LAA services and how and in what way should Financial Eligibility requirements be determined and applied? 5. What models for compensation and levels of compensation would be most effective for private bar lawyers who provide legal aid services? 141

162 6. Based upon the answers to questions #1, #2 and #4, what would it cost to provide legal aid services, through the different options in #3 and using the compensation models in #5? 7. What other sources of revenue or support in kind could be developed for LAA? 142

163 Appendix B Details of Legal Aid Alberta Programs I. LAWYER APPOINTING (CERTIFICATE) PROGRAM Legal Aid Alberta appoints lawyers (both private bar and staff lawyers) to represent financially eligible individuals in a wide variety of cases. In addition, by virtue of the governance agreement, LAA administers the Court Ordered Counsel Program, on behalf of the Minister of Justice and Attorney General for the province of Alberta. Regional Legal Aid offices complete and process client applications and issue Legal Aid certificates for financially eligible people. In most cases, LAA allows clients to select a lawyer or they can have a lawyer appointed for them. In some cases, Legal Aid certificates are issued to staff lawyers, who provide legal services through the Family Law Office, the Youth Criminal Defence Office and the Central Alberta Law Office. LAA issued a total of 45,475 certificates in the year ending March 31, In criminal matters, both adult and youth, coverage is provided for all indictable offences and summary conviction offences where there is a likelihood of incarceration or loss of means to earn a livelihood, or where special circumstances warrant legal aid coverage. Civil coverage is provided in a wide range of cases, most notably family law matters. The Lawyer Appointing Program also extends to services provided pursuant to the Reciprocal Agreement with other Canadian legal aid plans and occasionally to complainants and other witnesses in criminal proceedings where legal counsel is required. Not all applicants are successful in their initial application for legal aid. They may be found to be financially ineligible, or to have a problem that doesn t fall within coverage rules, or both. Applicants denied coverage are notified in writing of the refusal, of the reason for the refusal and of their right to appeal the decision to a Regional Committee. An applicant who appeals a refusal has the right to appear in person before the Regional Committee. II. STAFF LAW OFFICES Alberta Law Line: The Alberta Law Line is a free, province-wide program, based in Edmonton. Centralized and telephone-based, its purpose is to fill gaps in legal services available to Albertans and help them overcome barriers to access such as delay, lack of awareness or understanding of the legal system and affordability. Trained non-lawyers, called Legal Resource 143

164 Officers, provide legal information and legal referrals to anyone in Alberta. If clients meet financial eligibility guidelines, they may then receive legal advice and limited representation from Staff Lawyers. Staff Lawyers also provided the daytime Brydges Duty Counsel service from April 2005 to March Law Line staff handled 14,285 cases from April 1, 2008 to March 31, Approximately 49% of clients received only legal information and legal referrals, while 44% of clients received legal advice (17% percent of Law Line clients did not receive legal advice services because they did not meet LAA financial eligibility guidelines). An additional 7% of clients received no service for a variety of reasons (e.g. conflicts, third parties, refusal to identify themselves). The main areas of law for Law Line clients continue to be civil (45%), family (37%) and criminal (18%). The main areas of non-family civil law are: residential tenancies, consumer rights/debt and employment. Staff lawyers also provided Brydges Duty Counsel advice on 4,767 matters. The Staff Lawyers continue to provide limited representation through an enhanced advice service (also known as brief services ). The lawyer has discretion to determine whether or not the case and/or the client warrant further assistance with completing documentation, contacting a third party to assist in dispute resolution or taking some other action to assist the client in their matter. As part of the brief services mandate, Law Line staff lawyers provided legal representation by telephone to accused persons at bail hearings in the areas of Alberta north of Highway 16. This pilot project concluded, and LAA is providing the service through the Bail Representation Office. Central Alberta Law Office (CALO): The Central Alberta Law Office (CALO), located in Red Deer, provides civil law (and some criminal) legal services to Albertans with legal matters principally within the Judicial District of Red Deer, which includes the cities of Lacombe and Red Deer, the towns of Blackfalds, Innisfail, Olds, Ponoka, Rocky Mountain House, Rimbey and Stettler and the First Nations of Sunchild and O Chiese. CALO s mission is to provide individuals with opportunities to access justice through non-judgmental, cost-effective legal representation, education and advice. From April 1, 2008 to March 31, 2009, CALO lawyers handled 608 files (133 carried over from the previous year) of which 283 remained active at year-end. Files opened during the 144

165 year increased from 288 in 2007/2008 to 475 in 2008/2009, a 65% increase. In addition, CALO lawyers provided advice to 333 advice clinic clients. They also assisted 678 persons as Duty Counsel in Youth Court, provided defence counsel for 186 inmates at the Bowden Federal Correctional Institution, conducted review hearings for 10 youth detained under the Protection of Children Abusing Drugs Act (PChAD), represented 78 claimants in Emergency Protection Review hearings, provided 62 written legal opinions, granted community referrals to 233 individuals and external legal education to a further 33 individuals. These extended services allowed CALO to assist over 1600 individuals in 2008/2009. Family Law Office: The Family Law Office (FLO) commenced operations in 2001 and has, since its inception, completed in excess of 25,291 files. FLO s mandate is to deliver quality family law legal services to Legal Aid clients. This directive is met by the contributions of thirtyseven salaried staff lawyers and twenty-nine support staff in Edmonton, Calgary and Lethbridge. FLO also has seven Family Resource Facilitators on staff who deal directly with clients to assist them with personal, violence and other family issues that arise in the context of the client s litigation. This past year, FLO was able to complete a total of 3,087 files in their Edmonton, Calgary and Lethbridge locations. (Note: this number includes Emergency Protection Orders at the Court of Queen s Bench, which are issued a Duty Counsel Certificate) FLO continues to serve clients outside of the urban areas due to a shortage of roster lawyers who will accept Legal Aid Certificates. There continues to be a significant need for services in Grande Prairie, Peace River and Medicine Hat. FLO s mandate is to improve access to justice for family law litigants of limited financial means and to assist clients in a holistic way. FLO operates under the supervision of a Senior Counsel who is hired by and reports to the Board of Directors. An Assistant Senior Counsel in each city is responsible for the day to day operations of their respective offices, while staff lawyers in each office provide legal assistance to clients. In addition to providing legal assistance, FLO also employs Family Resource Facilitators. Family Resource Facilitators are individuals with a background in social work who work directly with clients to develop plans to resolve any personal and/or family issues within the context of their litigation. FLO staff counsel provide legal advice and representation to clients in all levels of court for a variety of matters including: divorce; custody; parenting and 145

166 contact; guardianship; child maintenance and spousal support; grandparent contact orders; representation of children in high conflict custody proceedings; child protection/child welfare matters; resolution of matrimonial property disputes and property disputes between unmarried persons. The Family Law Office helps victims of family violence through its Emergency Protection Order Program; a no fee service introduced in September The program provides information and lawyers to obtain and confirm protection orders under the Protection Against Family Violence Act. The Emergency Protection Order Program (EPOP) team consists of eleven very dedicated lawyers who attend court on a daily basis to represent clients who have experienced violence in their lives. EPOP provides legal assistance and Duty Counsel courtroom representation to claimants in both applying for an Emergency Protection Order in Provincial Court and during the confirmation hearings on those Orders in the Court of Queen s Bench. In addition, claimants and the public are provided with ongoing information and referrals to appropriate agencies and services that are similarly committed to ending family violence. Last year, Duty Counsel in Edmonton and Calgary assisted over 16,000 individuals. This service has been well received by the victims, the police, the many agencies working to assist victims of family violence and the court. Immigration Services Program (ISP): The Immigration Services Program assists clients, in the Calgary area, who need help navigating the refugee process and filing the detailed documentation required during that process. Services provided to clients and the private bar include: provision of legal information and advice relating to immigration and to collateral issues (family, income support and housing law), client intake and interviews, preparation and filing of documents, including the time-intensive Personal Information Form (PIF) and applications for work permits and permanent residency, translation services, referrals to other legal and non-legal services, advocacy of social assistance and housing agencies and representation at the Immigration and Refugee Board (selected cases). Finally, the Program takes a holistic view of the client s needs. As a result, staff may also assist clients in identifying other needs and resources relating to their arrival in Canada as refugees. These may include help in accessing, furniture, clothing, English classes or schooling for minors. 146

167 Immigration Services provided assistance to 950 clients from April 1, 2008 to March 31, The services provided are as follows: 292 callers received legal assistance and/or legal advice and referrals. Staff provided a total of 658 unbundled services to clients. PIF preparation and work permit applications made up the majority of unbundled services. Assistance with Permanent Resident applications, applications for Leave for Judicial Review, Pre Removal Risk Assessment (PRRA) applications, appeals to Immigration Appeal Division (IAD), filing and hearing extension requests was also provided as well as involvement in advocacy issues. Provision of these unbundled services resulted in paralegal staff opening 253 new Program files. The staff lawyer maintained an average of 20 ongoing full coverage files during the fiscal year and provided opinions both on an ad hoc and certificate basis. Legal Aid Alberta at Siksika Nation: This program is a joint initiative with the Siksika Justice Department of Siksika Nation. The office is located on the Siksika Nation reserve with about 95% of clients being Nation members residing on the reserve. Approximately 60% of clients are male; many require duty counsel services at Provincial Criminal Court. Only 5% of clients are youth, because most youth are appointed private bar lawyers. Advice and limited representation are provided to clients in family law and other civil law matters. Persons appearing in adult criminal, youth and family courts receive advice and limited representation at court. Staff works closely with the Court Worker provided by the Justice Department. Staff also provides assistance to clients applying for legal aid, in cases where the private bar may be involved. In addition, the Staff Lawyer acts as a neutral advisor during some proceedings of the Siksika Tribunal and Judicial Dispute Resolution proceedings. The program also provides public legal information sessions, advice clinics and presentations to various community groups. From April 1, 2008 to March 31, 2009, the Siksika Staff Lawyer assisted 466 clients as Duty Counsel at Provincial Courts (Criminal, Family and Youth). An additional 1,373 clients were provided with services at the law office during the same period. Youth Criminal Defence Office: The Youth Criminal Defence Office (YCDO), established by LAA in 1993, delivers legal and other services to young persons charged with criminal offences in Edmonton and Calgary. Except where there is a conflict of interest, the YCDO is typically assigned to act for most young people who have obtained legal aid coverage or an order 147

168 requiring counsel be appointed. In addition to representation, the YCDO is directed to engage in program initiatives that meet the special needs of youth. The YCDO influences policy and decision making that impacts youth. In the past year, staff presented at various conferences on Fetal Alcohol Spectrum Disorder, at the National Judicial Institute s: Judging Effectively under the Youth Criminal Justice Act, and at the Minster s Roundtable on proposed changes to the Youth Criminal Justice Act. Staff also serve on the board or as advisors to a wide variety of criminal justice and youth service organizations. The YCDO, along with six other agencies, is a sponsor of the 2010 Urban Games in Edmonton, a sporting/education/job fair event for street-connected youth. The YCDO has an office in Edmonton and another in Calgary. The Senior Counsel is based in Calgary and Associate Senior Counsel in Edmonton. Both offices have similar numbers of staff counsel, social and youth workers. At present, there are 17 lawyers and 6 social and youth workers. YCDO staff lawyers represent young persons in trial and appellate Courts in Edmonton and Calgary. The legal representation includes providing legal advice, making applications for judicial interim release before the Youth Justice Court and the Court of Queen s Bench, entering pleas, conducting trials and other hearings and speaking to sentence. Staff lawyers also advance and respond to appeals, the majority of which are appeals to the Court of Appeal. In the year ending March 31, 2009, YCDO lawyers were assigned over 3,000 new cases. It has been noted by YCDO counsel that proclamation of the Youth Criminal Justice Act in 2003 had a significant effect both across Canada and in Alberta in reducing the number of cases coming before the youth courts. The two offices provide legal assistance to unrepresented youth on a daily basis in Youth Justice Court docket courts in Edmonton and Calgary. The assistance includes: providing immediate legal advice, making application for judicial interim release, seeking withdrawal of charges, entry of guilty pleas and speaking to sentence. In the year ending March 31, 2009, YCDO lawyers made over 7100 duty counsel appearances. Staff counsel in Edmonton also began acting as duty counsel dealing with traffic and other provincial matters. YCOD also offers Young Offender Brydges Duty Counsel Services in Calgary and Edmonton. This after-hours and weekend telephone service operates throughout the year, and on-call YCDO 148

169 staff lawyers provide young persons who are detained with immediate legal assistance and advice. Daytime callers are directed to each of the YCDO offices respectively. This service is restricted to use by young persons detained under the Youth Criminal Justice Act and applicable provincial legislation. All other Young Offender Duty Counsel Service calls originating from outside of Edmonton and Calgary, are answered by LAA s contracted Brydges Duty Counsel Service Provider. In 2008/2009, the Youth Criminal Defence Office provided assistance and summary advice to 4,713 detained young persons in Calgary and Edmonton combined. DUTY COUNSEL PROGRAM: LAA introduced the Duty Counsel Program to the province in The Duty Counsel program ensures the availability of summary legal advice and assistance to persons for preliminary appearances before the courts and selected tribunals, in many situations, without the need for financial eligibility testing. Duty Counsel services are provided by LAA staff lawyers, as well as private bar lawyers who are remunerated through their certificates. The program continues to grow and now encompasses the regular assignment of Duty Counsel to: Criminal and Youth Justice Docket courts (130 locations) Domestic Violence courts Drug Treatment court (Edmonton & Calgary) Disciplinary hearings at correctional facilities Applications for confirmations and breaches of Emergency Protection Orders Provincial Court - Family and Child Welfare dockets (Edmonton and Calgary) Court of Queen s Bench Family (Edmonton) Mental Health Review Panel hearings Duty Counsel Services are also provided on an ad hoc basis for Mills/O Connor and Section CC applications (examination and cross-examination of victims/witnesses in sexual assault/criminal harassment cases) as well as in Protection of Children Abusing Drugs (PChAD) legislation matters. In 2008/2009, Duty Counsel provided over 106,000 assists to persons across Alberta. Brydges Duty Counsel Service: LAA administers the Brydges Duty Counsel Service on behalf of the Attorney General in accordance with the Legal Aid Governance Agreement (2006). This service is a free, 24-hour-a-day, province-wide, telephone hotline that is available to individuals 149

170 who are under arrest and in custody, or under active investigation by law enforcement authorities before arrest, who need immediate advice in relation to their Charter rights and criminal law. Calls are answered by qualified lawyers with experience in these areas of law. The toll-free Brydges phone number is posted in all police stations and is provided to any law enforcement agency or service in Alberta, whose staff exercise arrest authority and who have holding facilities/locations for the detention of freshly arrested accused persons, or those under active investigation. The Brydges Duty Counsel Service is augmented by partnership with an Interpreter/Translation Service. Third party interpreters facilitate communications in 110 languages, and provide immediate and secure verbal translations by telephone link which connects them directly to Brydges Duty Counsel and individual callers as needed. The Brydges line provided assistance and summary legal advice to over 27,000 detained persons in 2008/2009. III. Value-Added Programs: Referrals: The Alberta Law Line Legal Resource Agents provide legal information and referrals. Legal information is general information about the law and the legal process. The information will help a caller to identify their problem and the choices available to address the legal issue. Referrals help callers to access organizations in their own communities that can provide further information or that can provide direct help. Referrals may also be made to published or internet materials. Legal Resource Agents are not lawyers and are not able to provide legal advice. Family Resource Facilitators: The Family Law office and the Central Alberta Law Office offer the assistance of a Family Resource Facilitator with clients and their lawyers to assist with concerns that arise from family law problems. Some of these services will be supportive in nature and may include assistance to access programs and referrals to agencies; e.g. financial assistance, housing, retraining and parenting and life skills. FLO s Family Resource Facilitators have developed, in association with the YCDO, the Elizabeth Fry Society and other project sponsors, a program to assist single young mothers who find themselves in trouble with the law. The program is called Just Us Girls and supports 150

171 young mothers (12 24 years old) who have had their children apprehended due to addictions, neglect, housing needs and family violence. This program is based upon a restorative justice model. A client with an application before the Provincial Court, either with a Children & Youth Services Court application and or a Youth Criminal Court, can have the matter referred to a circle of volunteers who will help the young mother access the services she needs and work out a plan that her child may be returned to her with what conditions may be appropriate. The client will return to court with a report and the support of Just Us Girls for the Judge to decide the matter. FLO s Family Resource Facilitators have introduced a domestic violence protocol. This program commenced on August 1, 2008, and was developed in conjunction with the Community Initiatives against Family Violence. All FLO clients are asked a screening question about family violence. The screening is to assist clients and their families who are experiencing family violence. Clients may be victim/survivor or offender/abuser/ perpetrator, and are assisted by support and also by referrals to appropriate resources. This program also raises the awareness that family violence is a widespread problem affecting families. Services for Youth and Children: The YCDO operates for the benefit of young people, and young persons as clients have special needs that must be addressed. The problems are many and various. Homelessness, poverty, addiction, sexual and/or physical abuse, fetal alcohol spectrum disorder and learning disabilities are common and can contribute to conflict with the law. Whenever possible, staff counsel and the social and youth workers employed by the YCDO prepare release and sentencing plans for lawyers to present to the Court. Wherever possible, they advocate the use of community rather than custodial resources to promote rehabilitation and to deal with problems contributing to criminality. The social and youth workers may also advocate for service for the young person. These may be sought from the child welfare, education or health systems. The Family Law Office has a team of lawyers in Edmonton and Calgary who are trained and experienced in representing children. FLO has just developed a strategic plan to provide information and to promote the team with members of the Provincial and Queen s Bench Court with the spousal Violence Intervention Teams and the Rainbow Program (for children whose parents are separating or divorcing). 151

172 Legal Aid Alberta Review

173 Appendix C Coverage Comparison Canadian Legal Aid Plans Province Criminal law matters Civil law matters Alberta 78% 22% New Brunswick Quebec Ontario Manitoba Saskatchewan British Columbia Yukon Northwest Territories Nunavut - - Newfoundland - - Prince Edward Island - - Coverage Province Criminal Family Other Nonfamily Civil Alberta All indictable Summary if likelihood of incarceration or loss of livelihood All Youth offences Hearings at Correctional Institutions British Similar to Columbia Alberta, except no coverage for breach of prob., breach of bail, motor vehicle offences, failing to appear even if likelihood of incarc. All youth except those in care of Ministry of Children and Family Development Child Welfare proceedings All family matters if there is merit to application Information and advice Representation for Child Welfare proceedings Limited representation in serious family matters where safety of child at issue or highly contested matters Information and advice Some representation Information and advice [Note: The first week of November, 2009, Legal Services Society of B.C. announced it will be ending its civil information and advice services, due to funding shortfalls] Duty Counsel Criminal or Family Criminal and Youth throughout the Province Family Court and Queen s Bench (Edmonton, Calgary only) Brydges Yes Immigration Yes Criminal Yes Yes Saskatche wan Similar to Alberta Child Welfare Proceedings None Criminal for in custody individuals only Yes No 153

174 Coverage Province Criminal Family Other Nonfamily Civil Family matters where there is merit Manitoba Similar to Alberta Similar to Alberta Collaborative Law Office (pilot) Ontario Criminal coverage for Indictable and Summary only if likelihood of incarceration All Youth Representatio n in WCB, Social Assistance, Pension Claims Poverty law Public interest groups Similar to Alberta New client service centre will provide legal information and advice Legal Clinics deal with Poverty Law issues, test cases, etc. Quebec Similar to Alberta Similar to Alberta Income support, employment assistance, auto insurance claims, WCB New Brunswick Nova Scotia P.E.I. Indictable, if likelihood of incarceration Minimal summary if likelihood of incarceration Only for victims of spousal abuse and support issues Child Welfare proceedings None Duty Counsel Criminal or Family Criminal - expanded Child and Family Services Court Immigration If financially qualified Criminal with some expanded services Some Family Landlord- Tenant in Toronto? Criminal, Family and Youth Minimal Duty Counsel in Criminal and Youth Brydges Similar to Alberta Similar to Alberta None Have started a pilot for criminal Yes No All Criminal Criminal No No indictable and summary Nfld. Similar to Alberta Similar to Alberta EI, Social Assistance, Pension, Landlord Tenant, Damage Claims Criminal and Youth Source: Statistics Canada, CCJS Legal Aid Plan Summary, Legal Aid in Canada 2007/08. Yes Yes Yes No Yes Immigration None other than Duty Counsel Yes Yes No Yes 154

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207 2009 Alberta Legal Aid Review Appendix E Consultation Report Legal Aid Alberta Stakeholder Consultation Final Report September 4, 2009 TABLE OF CONTENTS Introduction... 2 Executive Summary... 3 Detailed Reports: A. Public: i. Roundtables and Interviews... 6 ii. Focus Groups iii. On-line Survey B. Staff: i. On-line Survey and Written Comments C. On-line Survey Questions Note: A copy of the Consultation Guide is available under separate cover. Submitted by: 1010, Street Edmonton, AB T5J 3L7

208 INTRODUCTION Legal Aid Alberta (LAA), in partnership with Alberta Justice and the Law Society of Alberta, embarked on a major review of its operations and programs in The goal of the review was to find ways to change and improve the legal aid plan for the benefit of Albertans while, at the same time, making it sustainable. One aspect of the review involved consultation with a variety of stakeholders. Marcomm Works, an Edmonton consulting firm, was contracted in June 2009 to implement the consultation plan. The consultation approach enabled organizations and professionals in the field, clients and other interested people to review and comment on a variety of operational and programming options. These options were contained in a Consultation Guide written and produced by LAA. The guide also provided background on Alberta s legal aid plan and results of research into approaches taken by other jurisdictions. Questions were added to focus and stimulate feedback. The guide was posted on the Internet. Consultations were held during July and August of Consultation elements were: One-on-one interviews with nine key stakeholders Written submissions from individual Albertans, organizations, the legal community and LAA staff. Four focus groups, two each in Calgary and Edmonton. Two of the groups involved former or current legal aid clients. Two groups involved individuals who may need legal aid services in the future. An on-line survey posted from August 5 to August 28, A total of eight roundtable sessions in Red Deer, St. Paul, Edmonton, Calgary, Lethbridge and Grande Prairie. This report reflects the collective opinions, comments and suggestions gathered from the various input sources. Staff input has been isolated as a separate section to provide a comparative between staff and non-staff feedback. The roundtables, survey and focus groups were arranged and conducted by Marcomm Works. One-on-one interviews were arranged by LAA but a Marcomm consultant participated in the interviewing. This report and its appendices have been prepared by Marcomm Works and represent the independent and objective recording and summarization of input received from stakeholders. Any interpretations or conclusions contained within this document are those of Marcomm Works. Any opinions, interpretations or conclusions contained within it may or may not coincide with those of Legal Aid Alberta. EXECUTIVE SUMMARY 187

209 This Executive Summary provides the key findings of the public consultations. It does not include staff input. A more detailed review of opinions and perspectives and the full range of input including from staff is provided within the individual reports of various consultation elements found elsewhere in this document. The results of the consultation are summarized here in the order in which the topics or issues were discussed with stakeholders. General Comments There was broad support for the legal aid plan and the work that LAA does. For the most part, former and current legal aid clients held a negative view of their experience. Other stakeholders felt that LAA staff provide excellent service and are responsive to client needs. A majority of consultation participants expressed concern about the length of time it took for a client to be appointed a lawyer. A lack of information, particularly about why people were refused legal aid, was frequently mentioned as an issue. It was the majority view that LAA needs to do more to meet client needs, particularly regarding access, and awareness and education. Legal Needs Participants agreed the list of legal problems noted in the guide are the most frequently faced by low-income persons. Family law and relationship breakdown, and alcohol and drug addiction (within the category of health) were considered by far the most prevalent. Immigration and mental health issues were mentioned by a number of respondents as other legal needs. Legal Aid Eligibility In determining eligibility, a balance between financial need and merit was deemed appropriate. For most, the current balance was deemed to be appropriate. There was strong support for legal aid eligibility to be based on serving a combination of: a) those at or under a predetermined income level and b) a portion of the population, regardless of income. There was considerable concern that the current guidelines prevented many people who cannot afford a lawyer from accessing legal aid. 188

210 A majority of participants agreed that the income threshold was too low and should be raised. The vast majority of participants were against the introduction of a quota system. Service Provision Options All of LAA s current mandatory and discretionary services were considered valuable. There was strong support for retaining them all. Family law and duty counsel were considered the most valuable discretionary services. Frequently mentioned suggestions for added services included: Expanding family law and duty counsel services Providing information resources and/or counselling services for people in need of legal help. Participants forecast negative outcomes for Albertans, the courts and the overall justice system if LAA services are reduced or cut. Service Delivery Options There was strong support for continuing to use a mix of staff and private bar lawyers to deliver legal aid services. Expansion of family law representation services and staff duty counsel was supported where the need is great and the availability of private bar lawyers is low. There was only minority support for LAA establishing a public defenders office. A certificate as a last resort approach was largely supported. While all service delivery options listed in the consultation guide were considered reasonable for LAA to consider adopting, those that received the greatest support were: Legal clinics One-stop client legal services Mandatory mediation services Unbundling services LAA Business Practices LAA improving its communications and education with clients and service providers was top of mind for most participants. The introduction of more technology was supported if it streamlined business practices and did not diminish the availability of face-to-face interaction with staff, particularly for clients. LAA was encouraged to allow on-line and off-site applications. Service providers want a closer working relationship with LAA and for crosstraining/reciprocal education to occur. 189

211 A majority of participants supported introducing a quality assurance program for roster lawyers. Lawyer Compensation There was almost universal agreement that the tariff of $84 per hour was too low and was a major disincentive to lawyers taking legal aid cases. There was disagreement whether a tiered system, where senior lawyers earned more than juniors, was appropriate. There was mixed opinions on the alternative payment models presented in the consultation guide. A significant minority wanted to reserve judgment until more details on how LAA would apply these models were known. Other Sources of Revenue Participants were largely against introducing a provincial sales tax on legal services There was only minor support for LAA administering insurance schemes. There was some support for lawyers not on the roster to pay a fee or provide a minimum number of hours of legal aid each year. LAA was encouraged by many to secure charitable status to allow donations and fundraising to occur. 190

212 Public Roundtables and Interviews INTRODUCTION Stakeholders invited to the consultation roundtables included the police, court workers, lawyers and the judiciary, legal professional associations, representatives from referring agencies and allied groups, and Non-Governmental Organizations (NGOs) with a special interest in legal aid. Additionally, nine in-depth interviews were conducted with key stakeholders who had provincial insights into legal aid and its impact (for example, Alberta s Chief Crown Prosecutor and an Assistant Chief Judge with the Provincial Court) A total of 109 people attended eight roundtable discussions concerning Alberta s legal aid plan. The sessions were held in Calgary, Edmonton, Grande Prairie, Red Deer, St. Paul and Lethbridge between August 6 and August 25, In Calgary and Edmonton, one of the two roundtables held in each of those cities was restricted to lawyers and the judiciary. The other roundtables involved a mixture of lawyers and other stakeholders. Organizations represented at the technical roundtables included: 211 The Support Network Alberta Civil Liberties Research Centre Alberta Justice Association des juristes d expression française de l Alberta Bow Valley Victim Services Calgary Legal Guidance Calgary Police Service Catholic Social Services Central Alberta Community Legal Clinic Columbus House of Hope, Women s Shelter Community Information and Referral Society Edmonton Community Legal Centre Edmonton Police Service Family Violence Prevention Centre John Howard Society Law Information Centre Lethbridge Legal Guidance Lethbridge Police Service Medicine Hat Police Department Native Counselling Services of Alberta Pro Bono Law Alberta RCMP Safe Communities 191

213 Sexual Assault Centre of Edmonton Student Legal Services Victim Services Women s Outreach of Red Deer Youth Restorative Action Project In addition to the roundtables, stakeholders were invited to provide written comments. Seven submissions were received. This document summarizes the feedback provided by roundtable participants, by interview subjects and through written input. WORKBOOK RESPONSES Consultation participants were provided with a copy of Review of Legal Aid Alberta Consultation Guide and asked to respond to a series of questions within eight discussion points. Feedback and input are presented here in the order in which the topics appear in the guide. General Comments There was broad support for LAA and its services. The vast majority of participants feel LAA staff provide excellent service and are responsive to client needs. And while there was general agreement that Legal Aid Alberta was accessible, a significant minority observed there can be delays particularly from application to appointment. The length of time it took to reach/communicate appeal decisions was a concern. Those who commented about delays were often uncertain of the primary cause but speculated it was likely a combination of factors: from people missing We are lucky in Lethbridge. We have access to Legal Aid services that are only available in larger centres like the family law office and full time Duty Council although you can t say the same for the smaller communities in the region. application appointments; to the application and appointment process itself; to the scarcity of lawyers willing to do legal aid, particularly in family law; to the availability of LAA staff. also A few people mentioned that access for incustody people could be improved by not requiring in-person interviewing or extending hours legal aid staff are available in remand prisons. have an officer present on every docket day that has the authority and experience to quality each applicant and appoint specific counsel on the first meeting so these files don t spin in the system. the or A number of people advocated for broader LAA coverage, noting that the need for legal advice can occur at any time and at any place. For some, this meant providing 24 hour/7 days per week coverage throughout the province. For others, it meant expanding access to Alberta Law Line or placing a mobile LAA legal clinic in rural Alberta to serve smaller communities. 192

214 Some participants representing service providers indicated it would be helpful to have a better understanding of why some individuals are denied coverage or why they sometimes wait a long time for a lawyer to be appointed. They noted their clients are often unable to explain the reasons themselves. For this reason, providing the reasons for refused coverage in writing would be helpful. Legal Needs While participants agreed that the list of legal problems noted in the guide are the most frequently faced by low-income persons, the majority felt alcohol and drug addictions were the most substantial. Within the health category, mental health was mentioned as a matter frequently encountered among the impoverished. Family law and relationship breakdown was also If there was a way to solve these issues considered very prevalent. A minority outside of the courts if would relieve some of mentioned immigration (both issues the pressure on the system. related to immigration and the immigrant population) as a legal need, albeit one that was not as dominate as others. Compounding this latter matter was the lack of lawyers who specialize in immigration matters. Several people mentioned landlord and tenant matters is often a prominent legal problem among low-income persons. Many participants noted that, while some of the listed legal problems may have different degrees of importance to people, they are interconnected and cannot be viewed in isolation. It was also pointed out that early intervention and a multidisciplinary approach is needed to meet these needs, mitigate the problems and reduce the strain on the legal system. Legal Aid Eligibility Most participants felt LAA s existing balance between financial need and merit appropriate given that staff have some The Legal Aid appeals committee already looks at the merit of cases. The current mix should not be changed. was flexibility and there is an appeal system in place to deal with special circumstances. However, more should be done to make prospective clients aware of that fact. It was suggested that some individuals may qualify for legal aid but do not apply because they are not aware or don t understanding the financial/substantive eligibility structure. For many, the application process and approval system can be complex and confusing. 193

215 Of greater concern was the block of Albertans who do not quality for legal aid but also are unable to afford a lawyer. This leads to a number of people appearing in court unrepresented or making decisions in the absence of legal advice that may not be in their best interests (e.g. pleading guilty at first appearance; using The growing numbers of unrepresented people indicates the eligibility numbers need the courts to resolve a matter rather than to be raised. other avenues). Regardless, there was unanimous agreement that unrepresented people overburden the court system; generate more work and difficulty for the judiciary, the crown, court workers and others; and generally results in an unpleasant experience for those involved, including the unrepresented. To offset this reality, most participants supported raising LAA s income threshold to allow more people to access the plan. Only a few participants offered advice on what an increased income threshold should be. The majority of these suggested equating it to eligibility levels that exist for other groups (e.g. income thresholds for seniors, child support guidelines) There were some people opposed to raising the threshold, suggesting it would simply increase the workload and pressure on LAA to find lawyers willing to take legal aid cases. The current system with an appeals process in place worked well, they argued, and it would be difficult to find a threshold level that still did not leave a gap. To offset the added cost of a raised threshold, a number of suggestions pointed to LAA seeking more cost recovery from those who could afford it. For many, the inability to pay for a lawyer is tied to up-front retainers that may amount to thousands of dollars. It was noted that a tiered legal aid plan that enables higher income If people are serious about solving the Albertans to get a lawyer but pay their legal problems they are having they will be willing off over time or when assets become to enter into an agreement to make a monthly costs available lifts a critical barrier and would result in less unrepresented people. payment to pay back Legal Aid for their service. likely A number of participants mentioned that blocked assets are particularly true for women who have left relationships and have joint accounts with their partner. LAA must be sensitive to these circumstances when determining eligibility. There was a suggestion that clients on certificate (those who could afford it) pay a modest hourly fee to their lawyer. This would be in addition to the fee paid to the lawyer by LAA. This may result in two positive outcomes: more lawyers taking on legal aid cases and less abuse by clients of the free legal service they are receiving. Another suggestion envisioned lawyers sharing in some of LAA s cost recovery. No one supported the introduction of a quota system to the legal aid plan. It was deemed to be an unfair approach that would result in reduced access to justice. 194

216 Service Provision Options For the most part, participants felt LAA s current list of mandatory and discretionary services should remain in place. There was agreement that cutting legal aid services would prevent many people from having legal representation. Of greatest concern was I have a hard time believing any of these the services are discretionary. Removing any one potential reduction of family law services of these would significantly limit access to including duty counsel, given there is justice. already an insufficient number of legal supports and lawyers to meet this need. To protect this area, it was suggested that discretionary family law services currently provided by LAA become mandatory. A few people suggested that if cuts are made, the Alberta Law Line and Brydges Duty Counsel be considered. These individuals said these services did not serve a useful purpose, or they could be offered by local people or organizations. However, a large majority were supportive of these services and advocated for their retention. In fact, a few individuals felt Alberta Law Line should be expanded and made more accessible to people. Cutting any of these services would lead to A number of people suggested immigration huge delays and increased costs to the and non-family civil law coverage was less courts. important than other LAA services because there may be resources within other organizations to meet that need. In terms of a new service, mediation services was the one most frequently mentioned as a service LAA should consider adding to its portfolio. It was forecast that cuts to LAA s existing services would increase the number of unrepresented people, increase the costs to the rest of the justice system, and clog the courts. It was noted by several people that cutbacks to LAA would not save the system money as other areas of the justice system would have to pick up the slack. 195

217 Service Delivery Options Certificate as a last resort Most participants favoured LAA adopting a certificate as a last resort approach as it offered more flexibility for meeting clients needs efficiently and effectively. It was seen as particularly beneficial in enabling LAA to provide clients with assistance specific to their immediate needs. There was agreement that the appointment of a lawyer was not always needed to resolve a person s legal concerns. However, there some concern expressed that such a might make obtaining a certificate (and therefore a lawyer) more complicated and Unbundling services addresses the complex issues that people often bring to Legal Aid. In criminal matters the only staff lawyers that should be involved should be duty counsel. 196 was change difficult. LAA unbundling its services, entering more partnerships with other agencies, referring to the most appropriate resources at first contact (triage), using paralegals where appropriate and other service delivery approaches mentioned in the consultation guide were all generally supported. This support largely hinged on the understanding that clients would get quicker, improved service and the amount of work and client intervention that legal aid lawyers do (that does not require a law degree) would reduced. Many problems can be addressed by nonlawyers like paralegals, mediators and social workers. now be The greatest discussion about service delivery options centred on mediation services. Although most saw mediation as a positive alternative to court, many people cautioned that a mandatory approach would have to be tempered with an understanding that it can be harmful and totally inappropriate in some cases (e.g. domestic violence cases). Expanding Staff Legal Services Many participants praised the abilities of LAA staff lawyers and suggested they provided superior service in specific areas (working in a Family Law Office or working only with youth) However, most believed having a mix of staff and private bar lawyers served the best interests of society. While many felt the current balance was appropriate, the majority supported expanding the number of LAA staff lawyers into areas where the availability of private bar lawyers is low. For example, in most parts of the province, there is an inadequate supply of private bar lawyers to handle legal aid family law cases. Hiring more staff lawyers to fill this gap was seen as a reasonable approach. Similarly, placing more legal aid staff resources in courthouses, and into smaller cities and rural Alberta to meet legal needs and speed the justice process was supported. However, support for increasing the number staff lawyers was tempered by a caution that of such

218 a move should not supplant services that could be provided by private bar lawyers. Unlike family law, it was felt there are an adequate number of roster lawyers to cover legal aid needs involving criminal matters. Introducing more staff lawyers in this area would reduce access to independent defence counsel. It would also deny private bar lawyers the opportunity to gain experience and build a practice through legal aid work. There was general support for LAA establishing legal clinics in areas of the province where such a service does not exist. Mobile clinics in smaller communities were seen as particularly valuable. Similarly, expanding duty counsel at court where the need exists was seen as a positive way for LAA to better serve A (legal) clinic could solve many issues before going to court. Albertans at the point of need, bring about more early case resolution and help the courts run more efficiently. The addition or increased availability of legal aid duty counsel at the Court of Appeal, in Masters, in family court and in rural courthouses was specifically mentioned. Some people called for LAA to establish legal aid duty counsel offices in courthouses to increase efficiency and availability, and provide privacy for clients. Several participants noted that duty counsel work does not have to be done by staff lawyers but could be contracted out to private lawyers, particularly in outlying areas where downtime for lawyers at court is a frequent occurrence. Adding duty counsel in areas such as Fox Creek would save LAA a lot of money in certificates and reduce the length of time it takes to get a lawyer in place. Participants were split on whether the legal aid plan should move to a public defenders model for adult criminal court. A small majority were against it as they felt it denied Albertans choice of counsel, eliminated the independence of defence counsel, and represented a conflict of interest (judge, crown and defender all working under government directed mandates). It suggested this conflict could negatively influence defence counsel. Unintended consequences to a public defender s office are the pressure to plead out cases. Those who supported it felt staff lawyers would be more efficient and effective in bringing cases to an early resolution (without jeopardizing their ethics or pressuring clients). A number of supporters suggested that major offences under such a system should still be directed to private bar lawyers as they would likely have more experience and expertise in dealing with complex, serious cases. LAA Business Practices Participants representing service providers and other non-profit organizations at the roundtables believed a closer relationship with LAA would be beneficial to the organizations, LAA and their mutual clients. The most often cited need for staff within these organizations was education and orientation regarding LAA s services and its application, assessment and matching of lawyers was 197 Legal Aid is missing opportunities to have service partners advocate on behalf of legal aid.

219 process. This knowledge could be used to better counsel and advise clients. It was noted this should save legal aid staff time and reduce confusion and apprehension among clients about legal aid. Most of the organizations represented at the roundtables were open to the idea of being off-site locations for accepting legal aid applications. They saw the value and efficiency of being able to explain the form to clients and help them fill it out, as many clients have comprehension or literacy issues. A couple of participants noted that they already do this to some degree by counseling clients regarding how to appeal a legal aid decision. A caveat to this added role was having the capacity to do it and being supported by LAA. It was noted by many participants that organizations are already stretched to meet demand and that offering such a service might be difficult without additional resources. LAA s support should include training of staff and, when appropriate, sharing information about a common client (e.g. feedback on why an application was rejected; why there is a delay in getting a lawyer matched, etc.) It was acknowledged that confidentiality, internal policies and FOIP may be barriers to information-sharing but this could largely be overcome by having clients provide consent. Some participants advocated for LAA to introduce more technology into its business practices to aid communications, streamline accounting and increase convenience. A number of people favoured allowing individuals to fill out and submit applications on-line, but others cautioned that this should not replace the availability of LAA staff for face-to-face support and counsel when needed. There was a call as well for Literacy is a huge issue for legal aid clients. LAA to simplify its application form and use more plain language. It was noted that many people needing legal aid are functionally illiterate and cannot understanding or fill out a form without assistance. Generally, participants felt more could be done to educate the public about legal aid and to assist people during the application process. In some parts of the province, language remains a barrier particularly between a client and a legal aid appointed lawyer who claims to be bilingual but only has a basic understanding of the second language. Any electronic process or business change that simplified and sped lawyers communications and administrative interface with LAA was welcomed by the lawyers who participated in the consultation. Lawyer Quality Assurance Participants were split on whether LAA should introduce more lawyer quality assurance. Those who favoured moving beyond a complaint based system believed it was needed to ensure quality of service and increase public Feedback from the clients would be a benefit but I m not sure many clients would 198 participate.

220 confidence. It was suggested every client should have an opportunity to provide feedback to LAA on their experience. Others felt additional quality assurance was an unnecessary expense that might cause more lawyers to be reluctant to take legal aid cases. They also pointed out that accountability already rests with the provincial Bar. Regardless, many noted that LLA would need the concurrence of the Alberta Law Society in order to make such a change. Instead, LAA was encouraged to consider a better orientation program for student and new roster lawyers and to introduce a mentoring service for young lawyers doing legal aid. Lawyer Compensation Among lawyer participants, there was almost universal agreement that the per hour tariff was too low and was a leading reason why private bar lawyers do not take legal aid cases or do not take more cases. Few offered what an acceptable per hour tariff would be but most believed it would have to be raised substantially in order to have the desired impact (more lawyers taking more cases). The tariff is the single largest reason why I don t take more legal aid cases because once I pay my overhead I m essentially working for free. As a way of closing this gap without costing LAA more money, one group supported introducing a sliding scale of payment where clients (who can afford to) pay a modest hourly rate on top of the legal aid certificate. This would provide further revenue to lawyers while reminding clients that the service is not free. A number of lawyers noted that many legal aid clients call more frequently or expect more service compared to persons who are paying the full cost themselves. Paying a small fee for service might temper that behaviour. 199

221 Participants said there were other things that LAA could do that would make taking on legal aid cases more attractive. Suggestions included: A tiered system, where senior lawyers got paid more than less experienced lawyers. A number of people did not support this approach because it did not reflect the amount of effort put into a case. Adjust the tariff schedule: To be more equitable. The example cited was Why is a criminal half day worth more than family full day? The tariff rewards the people who do the least amount of work. So there is a difference in payment for a guilty plea versus a trail. To allow more hours up front when awarding a certificate. To account for administrative time. For lawyers traveling in rural areas, make travel payments equal to the hourly tariff rate. Award two certificates for one large case so two lawyers can work as a team. Offer tax breaks or insurance discounts to lawyers who do legal aid work. a In addition to the above, some participants felt LAA could increase its roster and/or available lawyer hours by: Requiring large firms to provide money or man hours to legal aid each year. Requiring articling students to devote some of their time to legal aid cases. Hiring an experienced lawyer in appeals to offer opinions to LAA about the validity of cases. Requiring all members of the Family Law Society to be on the legal aid roster. Payment Models There was mixed reactions to the concept of block contracting. It was attractive to some because it promised reduced administrative costs and cost certainty but others were concerned about the fairness of having fixed, lump sum fees for unpredictable or complex cases, particularly in family law. There was some concern too that quality of representation may decline as low bidders become more fixed on speedy outcomes than what is in the best interests of their clients. 200

222 Other payment models outlined in the consultation guide (funds to cover disbursements when lawyers do pro bono The idea of disbursements for pro-bono work is worth exploring. work, establishing a list of preferred list of vendors and litigation lending schemes) received mixed reviews but were considered by the majority to be likely beneficial. Many wanted to reserve judgment until LAA could share more details of how each model would be applied in Alberta. Other Sources of Revenue Most participants were against levying a tax on legal services charges as a revenue stream for LAA. Most saw it as just adding an extra burden on consumers as lawyers would simply pass the cost onto clients. There was considerable support for having lawyers not on the roster pay a fee or provide a minimum number of hours each year (either themselves or someone they designate) to legal aid as a way of meeting their social obligation. A few people suggested allowing firms to pool the obligation. In practice, this would mean one lawyer within the firm could work legal aid files until the obligation of all of the lawyers in the firm is satisfied. Some people opposed this idea, saying lawyers contribute to society in many ways. Legal aid is a public service, they argued, that should be paid for by all citizens, not just those involved in the legal system. This belief was echoed by others who felt the government of Alberta should be increasing its contribution to make up the Having a properly funded legal aid system shortfall. It was noted by one submission that would positively impact many of the social the Alberta government s contribution to issues that we end up paying for down the legal aid is relatively low compared to some line. other provinces. Participants were largely neutral on the concept of LAA introducing legal insurance as many didn t have a good understanding of how it would work and what the uptake would be by Albertans. Other suggestions to LAA for acquiring more revenue included: Be more aggressive in cost recovery from clients Introduce a sliding scale of payment so clients (who can afford to) pay a fee for service to LAA according to their income. Have the proceeds of forfeiture orders awarded to legal aid. Create a charitable arm to allow acceptance of donations. 201

223 SUMMARY OF FOCUS GROUPS INPUT Executive Summary The focus group research consisted of four groups in Edmonton and Calgary. In each city, one group included participants who had received or who had applied for legal aid and the other group included members of the public at large. The prevailing top-of-mind perception of Legal Aid Alberta among those who have applied or have been clients is largely a negative one of very busy legal aid offices, strict criteria for who can receive aid, lawyers who are not very responsive, and suspected over billing for services rendered in some cases. Among those who received legal aid services, many had complaints about the responsiveness and effectiveness of the lawyer they were assigned. In some cases, they believe they simply weren t good lawyers, while in others, they felt they didn t get served well because they were legal aid clients. However, there were some participants with a more favorable impression of legal aid services in Alberta. These individuals felt they did get good service from their lawyer, or at least that some lawyers are good while others may not be. Among those who had applied for legal aid but were refused, a commonly expressed frustration was with the lack of information that Legal Aid Alberta provides to people on other avenues for support, or how to help themselves. There was consensus that the financial eligibility criteria are too strict, or at least that an applicant s overall financial situation should be assessed rather than income only. The prevailing view among most was that all legal aid services both mandated and discretionary are valuable and should be kept. Attracting particular support was the Alberta Law Line, which many were not aware of, but took to be a widely accessible information line that could provide general advice and guidance perhaps even mitigating the need for a lawyer. When asked if there are other services that Legal Aid Alberta should be providing, the most often suggested was information resources and/or counseling services to people in need, to show them how to do what they can for themselves, or to direct them to the best resources (even if not legal). Participants were highly supportive of one-stop legal services centres that would offer more than legal services alone. Participants said this option provides for more counseling, support and direction to alternative services where appropriate. 202

224 When prompted for reactions to the idea of staffed legal clinics, most reaction also was positive because such clinics would provide the services of paralegals and preventative legal services, not only reactive services. On Legal Aid Alberta business practices, sensitivity or communications skills training for staff was suggested in both cities. Many participants said Legal Aid staff needs to treat people with more respect. Suggestions for more offices (in Calgary specifically), as well as for appointments or some other method of moving people through the system more efficiently were also volunteered. Participants were supportive of more roster lawyer quality assurance measures such as audits and case file reviews. A suggestion raised in both cities was for closer involvement of clients in audits, to ensure that their input is included in the review. There was very little support for the idea of a provincial sales tax on legal services as a means of providing more funds for legal aid. A spontaneous suggestion emerged in Calgary for LAA to engage in non-profit fundraising activities. Many others were supportive and felt fundraising for legal aid might be seen as a worthy cause by many citizens. But others were not receptive saying they personally would not want to support legal services for someone, for example, who is obviously guilty. 203

225 Methodology The research consisted of four focused group discussions (or focus groups) as follows: Edmonton Legal aid users and/or applicants Edmonton General public Calgary Legal aid users and/or applicants Calgary General public In order to recruit participants for the legal aid user and/or applicants groups, Legal Aid Alberta distributed letters to people visiting its offices in Edmonton and Calgary, explaining the focus groups and inviting people to indicate if they would be willing to participate if contacted. Lists of willing participants were compiled and forwarded to Marcomm for recruiting purposes. Participants in the general public sessions were recruited at random from current telephone listings. A screening questionnaire ensured a mixture of genders and a range of ages. To encourage attendance, participants were offered a $60 honorarium to cover their time and expenses. The focus groups were held on August 22 and 23, All sessions were facilitated by Hank Goertzen, Partner and Senior Consultant with Marcomm Works, according to a discussion guide that was approved in advance by Legal Aid Alberta, and which was based on the consultation guide used for the overall consultation program. The following sections provide a summary of the discussions, including a selection of participant quotations where appropriate to illustrate points. Please note that this report has been written from the independent and objective point of view of Marcomm Works. Any interpretations or conclusions within it may or may not coincide with those of Legal Aid Alberta. Summary of Results General perceptions of Legal Aid Alberta After participant introductions and preliminary remarks by the facilitator, each of the focus groups began with a discussion of participants general perceptions of Legal Aid Alberta and the legal aid program. Not surprisingly, those who had received legal aid or who had applied for it had stronger initial perceptions than those who had not usually (though not always) a negative one of very busy legal aid offices, strict criteria for who can receive aid, lawyers who are not very responsive, and suspected over billing or abuse of the system. When you walk through that Legal Aid door, it s like, why are you here? It s hard to get in. 204

226 Insensitive. There were raised voices in the room, questioning the need for legal assistance in an embarrassing way. My impression is that they were very over-priced. You feel like you are being shuffled through the system just to get the fees. Among those who received legal aid services, many had complaints about the responsiveness and effectiveness of the lawyer they were assigned. In some cases, they believe they simply weren t good lawyers, while in others, they felt they didn t get served well because they were legal aid clients. Legal aid clients are not a priority I get three minutes with him, and he bills for the whole hour. It was a real challenge to get their attention. It s like, you re legal aid so I ll deal with real clients first My frustration was in trying to get the lawyer who was assigned to me to call me back. It was months What they ve done (my legal aid lawyers) I could put in a teacup. Some lawyers seem to be highly abusive of the system It seems like they don t want to settle the case it drags on and on, ad infinitum but they get paid. However there were some participants with a more favorable impression of legal aid services in Alberta, who felt they did get good service from their lawyer, or at least that some lawyers are good while others may not be. Several remarked that the biggest challenge is getting accepted for aid in the first place. There seems to be a tough love approach to screening It s like, you don t qualify, but once you are actually accepted, it changes. Once I was actually assigned a lawyer, and we sat down and talked within a week he got things done. It seems to me that it s really hit and miss. One lawyer might be really good, and the next one is horrible. Among those who had applied for legal aid but were refused, a commonly expressed frustration was with the lack of information that Legal Aid Alberta makes available to people on other avenues for support, or how to help themselves. Even some who had received aid agreed that if there were more counseling or information resources for people to help themselves, it would be good. Confusing. They don t really provide any way to help yourself. It s just you qualify or you don t, now get out of here. Even if you are denied, what are you going to do? They should provide some kind of information. There s no holding your hand through the process, that s for sure. 205

227 If they offered classes on what to do, how to do things yourself, I would be there and I would have it done like in no time. In the general public focus groups in both Edmonton and Calgary, there were participants who also had applied for or received legal aid, and who largely offered the same kind of views as already summarized. Most of the randomly recruited participants had no prior contact with Legal Aid Alberta though, and naturally had fewer top-of-mind impressions to share. Those who did seemed to focus on either the decrease in legal aid funding sources as recounted in the consultation guide, or on the strict financial eligibility criteria, which they saw as unreasonable. The thing that struck me the most (in the consultation guide) was that funding has been decreased by quite an extent. As a wealthy province, we should be an example of taking care of people when it s needed, but it doesn t look that way in legal aid. The income levels are not realistic. They should be higher. And they should take into account everyone s personal situation. Eligibility and services The focus groups then turned to some of the key question areas as outlined in the technical consultation guide, which all had received and/or reviewed on line prior to the sessions. As already noted under general perceptions of Legal Aid Alberta, there was consensus in all of the focus groups that the financial eligibility criteria as outlined in the guide are too strict and limiting, or at least that an applicant s overall financial situation should be assessed rather than income only. The financial eligibility guidelines are absurd. When you are paying $2,000 a month for rent, it s just kind of ridiculous. How would you pay it (legal bills),when you re paying rent, utilities and buying food? It s absurd. Those numbers (current income levels) are a bit crazy. You can t even get an apartment for $1,400 a month. 206

228 Even those who said they have no problem with an income test of some sort agreed that the screening criteria should look at more than income alone, and certainly at more than last year s income. They should look at everything case by case Not just what your income is, but what are your expenses? What s your family situation? Do you have dependents? Do you have health issues? There are lots of things that affect your ability to pay. As we ve just seen (because of the recession), one minute you might have great house and a great income, and the next, you could lose it all. It makes sense that it s means-based, but it should at least be evaluated on a case by case basis If you haven t been working for the last six months, what you made last year really isn t relevant anymore. Other than the focus on the income test, there was relatively little discussion in any of the groups regarding the evaluation of merit. To the extent there was discussion, most participants seemed comfortable with the need to examine likelihood of success in civil cases, for example, before agreeing to provide legal aid for clients. Participants in all sessions were next asked for their views on the current range of services offered through Legal Aid Alberta both mandated and discretionary. It seemed that many participants did not fully understand many of the services outlined in the consultation guide, but to the extent they did, the prevailing view was that all services are valuable and should be kept, including the discretionary ones. There were a couple of general public participants in Edmonton though who felt that only the mandated services were essential, and that if cost savings were required, some or all discretionary services could be eliminated. I think they should all be kept. They all seem to be pretty good services to me. Attracting particular support in the sessions was the Alberta Law Line, which many were not aware of, but took to be a widely accessible information line that could provide general advice and guidance perhaps even mitigating the need for a lawyer. I think the Law Line is really important to keep, as long as it s accessible to all. The Law Line I think is important. Just to be able to talk to someone and get answers is good. Sometimes that would be all people need. They should make the Law Line a 24/7 service, or at least extended hours, so workers can access it. 207

229 When asked if there are other services or service types that Legal Aid Alberta should be providing, a similar theme emerged of providing information resources and/or counseling services to people in need, to show them how to do what they can for themselves, or to direct them to the best resources (even if not legal). Maybe more information resources, like booklets or what have you. How to do it kinds of things. Counseling just to help you plan out your strategy, what you need to do, and where you can go for other help. Have a website that you can go to, to find information or to fill out forms. Service delivery options The consultation guide outlines a number of legal aid service delivery options, beginning with a certificate as a last resort option, in which a client would be referred to alternative ways to obtain a settlement like mediation, using a paralegal, or other resources before a legal aid certificate is granted. In all of the public focus groups, many participants had some difficulty grasping this concept fully, but those who did most often expressed support for it. Similarly, once the certificate as a last resort concept was explained, others also tended to support it. It would certainly help in family law and civil law, because it would be good sometimes to solve things through a mediator maybe, rather than right away going to court. It not only takes pressure off of the legal aid, but off of the whole court system. It s a great idea. It s like treating the whole issue, and not just the gaping wound. There were a few participants, though, who said in cases where an appearance in court (and hence, the need for a lawyer) is not in doubt, certificates should still be readily available to those who qualify. If they are still going to help you when you need it, then it s good. Some people should (still) be able to just get the certificate and get on with it if they know they are going to court. And most participants also stressed that the certificate as a last resort approach would only be effective if the clients continued to receive counseling and advice after being referred to alternative resources not just redirected and cut loose. It would work relatively well as long as there is a hand-holding approach not, here s a phone number, good-bye. They need to stay with you. They would, at least, need give you some direction on where to go. Asked for their views on the other service delivery models discussed in the consultation guide, few comments were offered in any session beyond a general expression of support for all of them, provided people can still get a lawyer when needed. 208

230 They all sound good but if we need a lawyer, we still need to get one. A few participants said they liked the concept of one-stop legal services centres. When prompted by the facilitator or by such remarks, others in the sessions were mostly supportive. They often said this option reflects suggestions that had already been made spontaneously for more counseling, support and direction to alternative services where appropriate. I like the idea of being able to get counseling on your case, the rules of court, legal procedures and that kind of thing. One-stop legal resource centres makes a lot of sense overall. If you don t need a lawyer, you just need counseling on immigration or something, you can go. But if you need a lawyer, you can still go. It sounds like a more holistic approach, which I really like. When participants in all sessions also were specifically prompted for reactions to the idea of legal clinics, or public defender offices, most of the reaction was positive because such clinics would provide the services of paralegals and preventative legal services, not only reactive services. Many felt this would help keep some cases out of court, while providing more resources for those cases that deserved to go to court. The more you can do to keep people out of court, the better. They need more legal clinics. When you need a lawyer, that s where you would go. But there were some who countered that legal clinics sounded less client-friendly than the one-stop legal services centres, and also, that they may incur more overhead and expenses that the current system of using private members of the bar to provide most legal aid counsel. The downside of that (legal clinics) would be the costs and the overhead. They sound a lot more expensive and a lot less friendly (than legal service centres). 209

231 LAA business practices The focus groups also explored Legal Aid Alberta s business practices, and whether there are changes that could be considered to help the organization do a better job of communicating and working with clients. As already noted in previous sections, a common suggestion that was reiterated was for more information and counseling resources to be made available to clients and those not eligible for aid. However, another suggestion that arose among those who had visited a Legal Aid office was for some sensitivity or communications skills training for staff. Recalling their perceptions of Legal Aid Alberta as having strict limitations and of applicants being treated very curtly and sometimes rudely, many participants said Legal Aid staff need to treat people with more respect. Don t paint everybody with the same brush You re immediately presumed guilty. No one goes out of their way to help you or to tell you how to get help. They really need to get some sensitivity training for their staff. Maybe some interpersonal communication skills, or some customer service training or something They are just way too grumpy. Other participants noted how difficult it can be to actually see or talk to someone in a legal aid office. Some said that unless an applicant arrives very early in the morning, the wait to see someone could take hours. This led to suggestions for more offices (in Calgary specifically), as well as for appointments or some other method of moving people through the system more efficiently. Maybe they should accept appointments, so that you don t have to go there and wait forever Or even take a number They definitely need more offices. The one they have now (in Calgary) is really inconvenient. There s no parking. They should have one in every quadrant of the city. Participants in all sessions were supportive of more roster lawyer quality assurance measures such as audits and case file reviews. Indeed, some in the clients and applicants sessions felt reviews are not done enough now, or are not done thoroughly. One suggested that the only reason her case had been reviewed is because she had complained loudly and long about the services she had received and the amounts billed. The only way my lawyer is going to be investigated is by me complaining. Peer reviews are good thing because it would ensure quality practices. A suggestion raised in the applicants and clients sessions in both Edmonton and Calgary was for much closer involvement of clients in audits of cases, to ensure that their input is included in the review. 210

232 There should be a requirement for a survey or an interview of legal aid clients on service, right after a case. Let them say how the lawyer performed or didn t. People who are involved or who get legal aid should be more involved in doing the assessments and determining whether lawyers are overpaid. I want to see the bill they ve submitted, and I will go through it line by line and tell them if that was really the case. Also raised was a suggestion for better screening of lawyers before they are accepted into the legal aid program to avoid problems in the first place. Another suggestion of ways to avoid performance problems is to try to attract good lawyers to the program with non-monetary rewards such as awards programs, or peer recognition initiatives and the like. Why not screen lawyers first, to make sure you get a better quality of lawyer? Are there other ways to attract good lawyers to do legal aid, rather than just the money? Maybe they could get better recognition for winning cases Or an awards program or something. Funding sources Finally, the focus groups considered sources of funding for legal aid in Alberta. As already noted, several participants had noted the dramatic decrease in revenue for legal aid as discussed in the consultation guide. Some wondered whether that decrease was spurring the legal aid plan review, or whether it foreshadowed cutbacks in services. When asked for their views on some alternative sources of funds for legal aid as discussed in the consultation guide, there was very little support for the idea of a provincial sales tax on legal services with many participants noting that sales taxes of any sort are not popular to propose in Alberta. But there were a couple of participants who said they would personally support a sales tax if it were limited to legal services and not a general one. That will never fly in Alberta, I m thinking. Alberta is pretty sales tax adverse. The concept of Legal Aid Alberta offering legal expense insurance plans to customers as a means of earning revenue was difficult for most (but not all) of the participants in all of the sessions to understand. Many thought the insurance would be compulsory, or that you could only get legal aid by buying such insurance, or had other misconceptions. Those who did understand the concept were sometimes supportive of it in principle, and other times felt it would not work precisely because of the misperceptions expressed by others in the groups. Some participants were more receptive of requiring a greater percentage of interest earned in lawyers trust accounts to be contributed to legal aid, as is done in Ontario. 211

233 When asked for any other ideas about funding sources for legal aid, a spontaneous suggestion emerged in both of the Calgary focus groups for some type of non-profit fundraising activities ranging from a home lottery type of approach to simply accepting donations. When raised, many other participants were supportive and felt fundraising for legal aid might be seen as a worthy cause by many citizens. Why not accept donations? Or do fundraising things, like lotteries and that kind of thing? Can people just donate? I would think a lot of people would. Legal aid for the needy. That s a good cause, I think. But others were not receptive, saying they personally would not want to support legal services for someone who is obviously guilty, for example. I don t want to donate to the defense of somebody who s done bad things, so that could be a roadblock. I know we don t want to paint everyone with the same brush, but some of the people getting legal aid aren t exactly model citizens, if you know what I mean, and I don t think I want my money to be supporting them. Other spontaneous suggestions for funding sources mentioned in the groups but not generally supported included requiring lawyers to do a certain amount of legal aid for free or for very low rates; requiring lawyers to do legal aid on a contingency basis where applicable; allocating a portion of criminal fines to legal aid; and some kind of national regulation of legal aid plans to ensure funding and operations are the same from province to province. 212

234 Participant Profiles Edmonton, Group One Legal Aid Users / Applicants First Name Gender Age Occupation Jason Male Unemployed Taha Male School Bus Driver Matt Male Construction worker Dave Male Unemployed Lori Female Unemployed Arlene Female 56 + Sales Associate Joan Female Homemaker Ed Male Student Joleen Female Animal Health Technician Kelly Female Graduate Student, U of A Edmonton, Group Two General Public First Name Gender Age Occupation Jordan Male Laborer Donna Female Information Management Justin Male Apprentice Electrician Morgan Female Student Shane Male Unemployed James Male Postal Worker Sean Male U of A Student, Cook Jack Male Casino Worker Trish Female Legal Secretary Judy Female Cosmetician Tammy Female Meter Reader, ATCO Calgary, Group One Legal Aid Users / Applicants First Name Gender Age Occupation Matt Male Unemployed Roger Male Iron Worker Suzanne Female Homemaker Andrea Female Self Employed Sales Peggy Female Security Officer Dalton Male Gas Attendant Carl Male Landscaper 213

235 Calgary, Group Two General Public First Name Gender Age Occupation Ryan Male Millwright Dave Male Technician / Oil & Gas Aryn Female Support / Oil & Gas Wendy Female Logistics, Computer Company Gail Female Receptionist Geoff Male Unemployed Darryl Male Warehouse Manager Swarnjit Female Accounts Receivable Clerk Focus Groups Discussion Guide Introductions Moderator, Marcomm/Trend Research, purpose and process Participants introduce themselves (name, occupation, any past use of legal aid or exposure to the legal system in Alberta, etc.) Warm-up; General Thoughts CONFIRM THAT ALL PARTICIPANTS HAVE REVIEWED THE CONSULTATION GUIDE. IF NECESSARY, DISTRIBUTE HARD COPIES AS NEEDED. Thinking of the background information that s presented in the guide, what are your general thoughts about Legal Aid Alberta, as it exists today? IF NECESSARY, PROBE FOR THOUGHTS ON: Quality Responsiveness Accessibility Benefits Eligibility & Services Who should be eligible to receive legal aid in Alberta? (IF NECESSARY, REFER THEM TO PAGE 8 OF GUIDE). Does the current approach to determining financial need and merit need to change? If so, how? What about the services provided by Legal Aid Alberta do they need to change? IF NO, why not? IF MORE, What would you like to see added? Why? 214

236 IF LESS, What services should be cut? IF NECESSARY, REFER THEM TO LISTS ON PAGES 10 AND 11). What do you think the impacts would be? Service Delivery Options The workbook talks about the various models used to deliver legal aid services in Canada and internationally, and it also outlines a number of other service delivery options. (IF NECESSARY, REFER TO PAGES 12 17). What are your thoughts about a certificate as a last resort approach? Certificate as a last resort opens the door for a number of operational changes. These are listed on pages Which of these changes would you support? Why do you favor them? Do you support the idea of legal clinics and/or a Public Defenders office approach? LAA Business Practices What process or communication changes do you think LAA should make to do a better job of being known to the public or working with its clients? Is there more that LAA can do to meet client needs more effectively? Should LAA introduce more lawyer quality assurance measures like auditing and case file reviews? Funding Sources What are your thoughts on the alternative funding sources available to LAA as listed in the guide? IF NECESSARY, REFER TO PAGES 23 AND 24 OF THE GUIDE. Do you have any other ideas regarding where LAA could access more revenue? Closing Any other comments that anyone would like to make about Legal Aid Alberta or the issues in general? Any questions about the process? Thank participants and close. Distribute honoraria. 215

237 ON-LINE SURVEY REPORT PUBLIC RESPONSE INTRODUCTION An important feature of the consultation process was to ensure that those interested in the Legal Aid Review had a reasonable opportunity to provide their thoughts, comments and suggestions. For this reason, the consultation process involved a number of input opportunities and methods. One of these methods was an on-line survey hosted on the Legal Aid Alberta website. This was posted on August 5, 2009 and closed (taken off-line) on August 28, A consultation guide was posted during the same time to provide interested individuals with background on the questions being asked. Those who visited the site were directed to review the document and provide their input by completing the survey. This report provides the results of the 59 people who completed the survey and do not work for LAA. Note: some percentages may not add up to 100% due to rounding. DN/NS = Don t Know/Not Sure SURVEY RESULTS Respondents Roster law yer 17% Client 3% Non-roster law yer 52% DK/NS 3% Public 8% Referring agency 17% 216

238 No 22% Are the Described Legal Problems Frequently Experienced? DK/NS 3% Yes 75% Legal Needs in Order of Importance to Me 1. Family law and relationship breakdown 2. Housing 3. Employment 4. Income assistance and health 5. Money/debt 6. Consumer 7. Estates Who Should be Eligible for Legal Aid? Portion of Population 2% A Combination 51% Predetermined Income Level 47% How Should Eligibility be Determined? Financial method 10% DK/NS 2% Combination 88% 217

239 LAA needs to do more to meet client needs. Strongly Strongly Agree Disagree DK/NS Agree Disagree 37% 42% 14% 5% 2% 79% 19% 2% How can LAA meet the needs of its legal aid clients more effectively and efficiently? Top three mentions. (combined with staff responses) 1. Educate clients about the legal process and what they can do for themselves. 2. Introduce more technology to improve awareness and access, and to streamline processes. 3. Expand services into areas of need not be served. LAA should increase its client base by raising the income threshold. Strongly Strongly Agree Disagree DK/NS Agree Disagree 20% 36% 31% 7% 7% 56% 38% 7% LAA should change to a quota system Strongly Strongly Agree Disagree DK/NS Agree Disagree 3% 3% 36% 36% 22% 6% 72% 22% Just Mandated Services 14% DK/NS 14% staff responses) Services Legal Aid Should Provide Mandated & Other Services 72% Non-mandated services in order of importance to Albertans 1. Family Law Office 2. All family law coverage not provide by Family Law Office 3. Duty counsel other than in criminal and youth courts 4. Central Alberta Law Office 5. Alberta Law Line 6. Legal Aid at Siksika First Nations 7. Non-family civil law coverage What non-mandated services would you like to see retained or added? Top three mentions. (combined with 218

240 1. Keep them all. 2. Increase service supports for family law matters. 3. Add duty counsel to help people in more non-family civil areas (e.g. landlord and tenancy hearings, attend at Masters and Justice Chambers). LAA should continue to use a mix of staff and private bar lawyers to deliver legal aid services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 39% 47% 8% 3% 2% 86% 11% 2% LAA should use a certificate as a last resort approach. Strongly Strongly Agree Disagree DK/NS Agree Disagree 15% 32% 22% 12% 19% 47% 34% 19% LAA should use mandatory mediation or settlement meetings. Strongly Strongly Agree Disagree DK/NS Agree Disagree 36% 41% 12% 7% 5% 77% 19% 5% LAA should use one-stop client legal services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 22% 46% 14% 7% 12% 68% 21% 12% LAA should unbundle its services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 17% 51% 10% 2% 20% 68% 12% 20% 219

241 LAA should use paralegals instead of lawyers whenever possible. Strongly Strongly Agree Disagree DK/NS Agree Disagree 22% 34% 17% 24% 3% 56% 41% 3% LAA should establish legal clinics. Strongly Strongly Agree Disagree DK/NS Agree Disagree 25% 49% 10% 7% 8% 74% 17% 8% LAA should give legal aid lawyers access to Family Resource Facilitators. Strongly Strongly Agree Disagree DK/NS Agree Disagree 37% 41% 8% 2% 12% 78% 10% 12% LAA should enter into more partnerships. Strongly Strongly Agree Disagree DK/NS Agree Disagree 31% 37% 14% 3% 15% 68% 17% 15% LAA should expand staffed legal services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 32% 42% 7% 10% 8% 74% 17% 8% LAA should establish a Public Defenders Office. Strongly Strongly Agree Disagree DK/NS Agree Disagree 14% 27% 25% 14% 20% 41% 39% 20% LAA should expand its staff lawyer offices. Strongly Strongly Agree Disagree DK/NS Agree Disagree 34% 42% 8% 10% 5% 76% 18% 5% 220

242 LAA should establish a triage process. Strongly Strongly Agree Disagree DK/NS Agree Disagree 22% 41% 10% 7% 20% 63% 17% 20% Service Delivery Options in Order of Importance to Me 1. Mandatory mediation or settlement meetings 2. Expanding staffed legal services 3. Establishing legal clinics 4. Unbundling services 5. Creating a staff lawyer office/public Defenders Office 6. Giving legal aid lawyers access to Family Resource Facilitators 7. Entering into more partnerships 8. Establishing a triage process 9. Creating one-stop client legal services centres 10. Using paralegals instead of lawyers whenever possible What other changes could LAA make to improve service delivery? Top three mentions. (combined with staff responses) 1. Streamline the process and procedures to reduce bureaucracy. 2. Increase public and client awareness and education. 3. Increase access through on-line applications and having a presence in more places in the province. 221

243 LAA should expand its family law representation services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 39% 37% 10% 2% 12% 76% 12% 12% Impacts of expanding family law representation services. Top three mentions. (combined with staff responses) 1. Quicker resolution of cases. 2. Reduced wait times for clients. 3. Increased capacity to serve more people. LAA should expand its staff duty council services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 29% 42% 10% 7% 12% 71% 17% 12% Impacts of expanding staff duty counsel services. Top three mentions. (combined with staff responses) 1. More timely assistance and guidance for unrepresented people. 2. Improved efficiency/fewer delays for the courts. 3. Quicker resolution of cases. Does Legal Aid Need to do a Better Job Communicating with Clients and Partners? DK/NS 15% No 10% Yes 75% What LAA process or communication changes with clients and partners would you like to see? Top three mentions. (combined with staff responses) 222

244 1. Increased communications, liaison and partnerships with other service providers and allied organizations. 2. More client information flow between LAA and other programs/agencies. 3. Better communication and education of clients regarding application, certificates and process. What opportunities are there for LAA to better use the resources of other agencies to meet its clients needs? Top three mentions. (combined with staff responses) 1. Establish a referral policy and process within LAA that refers people who cannot be served by LAA to another helping agency. 2. Develop referral partnerships with community resource centres, social service agencies and other organizations. 3. Do cross-training with other service providers. How can LAA improve its application process? Top three mentions. (combined with staff responses) 1. Allow on-line applications. 2. Identify more off-site locations where applications can be done. 3. When needed, help people fill out applications. Reducing LAA lawyer interaction would be helpful to LAA, lawyers and clients. Strongly Strongly Agree Disagree DK/NS Agree Disagree 5% 10% 44% 12% 29% 15% 56% 29% LAA should determine quality assurance of lawyers through auditing and case file review. Strongly Strongly Agree Disagree DK/NS Agree Disagree 27% 44% 7% 8% 14% 71% 15% 14% 223

245 LAA should seek a greater percentage of revenue from the Alberta Law Foundation. Strongly Strongly Agree Disagree DK/NS Agree Disagree 37% 37% 7% 3% 15% 74% 10% 15% LAA should be funded by a provincial sales tax on legal services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 8% 31% 19% 31% 12% 39% 50% 12% LAA should administer insurance schemes. Strongly Strongly Agree Disagree DK/NS Agree Disagree 8% 19% 22% 14% 37% 27% 36% 37% 224

246 On-line Survey & Written Comments Staff INTRODUCTION An important feature of the consultation process was to ensure that those interested in the Legal Aid Review had a reasonable opportunity to provide their thoughts, comments and suggestions. For this reason, the consultation process involved a number of input opportunities and methods. LAA staff were given the opportunity to provide input through the on-line survey and by submitting comments. This report provides the results of the 75 LAA staff that completed the survey and the 10 staff members who submitted comments by . The opinions provided by were consistent with the on-line staff survey results. They are incorporated here and in the combined open ended responses provided in the previous section. Note: some percentages may not add up to 100% due to rounding. DN/NS = Don t Know/Not Sure SURVEY RESULTS Are the Described Legal Problems Frequently Experienced? Legal Needs in Order of Importance to Me No 8% DK/NS 3% Yes 89% 1. Family law and relationship breakdown 2. Housing 3. Income assistance and health 4. Employment 5. Money / debt 6. Consumer 7. Estates 225

247 Who Should be Eligible for Legal Aid? DN/NS 2% Predetermined Income Level 51% Portion of Population 3% A Combination 44% How Should Eligibility be Determined? Financial method 11% Combination 82% DK/NS 3% Substantive Method 4% 226

248 LAA needs to do more to meet client needs. Strongly Strongly Agree Disagree DK/NS Agree Disagree 27% 49% 16% 3% 5% 76% 19% 5% LAA should increase its client base by raising the income threshold. Strongly Strongly Agree Disagree DK/NS Agree Disagree 23% 56% 16% 0% 5% 79% 16% 5% LAA should change to a quota system Strongly Strongly Agree Disagree DK/NS Agree Disagree 3% 5% 43% 31% 19% 8% 74% 19% Services Legal Aid Should Provide Non-mandated services in order of importance to Albertans Just Mandated Services 5% DK/NS 8% Mandated & Other Services 87% 1. Family Law Office 2. All family law coverage not provide by Family Law Office 3. Duty counsel other than in criminal and youth courts 4. Central Alberta Law Office 5. Legal Aid at Siksika First Nations 6. Non-family civil law coverage 7. Alberta Law Line 227

249 LAA should continue to use a mix of staff and private bar lawyers to deliver legal aid services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 33% 59% 4% 1% 3% 92% 5% 3% LAA should use a certificate as a last resort approach. Strongly Strongly Agree Disagree DK/NS Agree Disagree 11% 39% 25% 7% 19% 50% 32% 3% LAA should use mandatory mediation or settlement meetings. Strongly Strongly Agree Disagree DK/NS Agree Disagree 39% 48% 11% 0% 3% 87% 11% 3% LAA should use one-stop client legal services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 24% 51% 7% 0% 19% 75% 7% 19% LAA should unbundle its services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 21% 47% 13% 4% 15% 68% 17% 15% LAA should use paralegals instead of lawyers whenever possible. Strongly Strongly Agree Disagree DK/NS Agree Disagree 16% 43% 23% 9% 9% 59% 32% 9% 228

250 LAA should establish legal clinics. Strongly Strongly Agree Disagree DK/NS Agree Disagree 25% 48% 11% 3% 13% 73% 14% 13% LAA should give legal aid lawyers access to Family Resource Facilitators. Strongly Strongly Agree Disagree DK/NS Agree Disagree 45% 41% 3% 0% 11% 86% 3% 11% LAA should enter into more partnerships. Strongly Strongly Agree Disagree DK/NS Agree Disagree 31% 56% 1% 0% 12% 87% 1% 12% LAA should expand staffed legal services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 31% 53% 3% 1% 12% 84% 4% 12% LAA should establish a Public Defenders Office. Strongly Strongly Agree Disagree DK/NS Agree Disagree 16% 32% 20% 9% 23% 48% 29% 23% LAA should expand its staff lawyer offices. Strongly Strongly Agree Disagree DK/NS Agree Disagree 19% 56% 11% 1% 13% 75% 12% 13% LAA should establish a triage process. Strongly Strongly Agree Disagree DK/NS Agree Disagree 24% 48% 4% 1% 23% 72% 5% 23% 229

251 Service Delivery Options in Order of Importance to Me 1. Giving legal aid lawyers access to Family Resource Facilitators 2. Establishing a triage process 3. Mandatory mediation or settlement meetings 4. Creating one-stop client legal services centres 5. Establishing legal clinics 6. Expanding staffed legal services 7. Entering into more partnerships 8. Creating a Staff Lawyer Office / Public Defenders Office 9. Unbundling services 10. Using paralegals instead of lawyers whenever possible LAA should expand its family law representation services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 28% 51% 13% 3% 5% 79% 16% 5% LAA should expand its staff duty council services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 27% 52% 8% 0% 13% 79% 8% 13% Does Legal Aid Need to do a Better Job Communicating with Clients and Partners? DK/NS 15% No 12% Yes 73% 230

252 Reducing LAA lawyer interaction would be helpful to LAA, lawyers and clients. Strongly Strongly Agree Disagree DK/NS Agree Disagree 3% 16% 33% 16% 32% 19% 49% 32% LAA should determine quality assurance of lawyers through auditing and case file review. Strongly Strongly Agree Disagree DK/NS Agree Disagree 23% 53% 11% 4% 9% 76% 15% 9% LAA should seek a greater percentage of revenue from the Alberta Law Foundation. Strongly Strongly Agree Disagree DK/NS Agree Disagree 43% 40% 4% 0% 13% 83% 4% 13% LAA should be funded by a provincial sales tax on legal services. Strongly Strongly Agree Disagree DK/NS Agree Disagree 13% 27% 20% 19% 21% 40% 39% 21% LAA should administer insurance schemes. Strongly Strongly Agree Disagree DK/NS Agree Disagree 3% 11% 28% 5% 53% 14% 33% 53% 231

253 On-line Survey Questions 1. First, please tell us who you are. Are you currently a (please check one): Current or former legal aid client Legal aid roster lawyer Non-roster lawyer, paralegal or justice system worker Member of an legal aid referring agency Member of the public Other 2. Do you agree that the legal problems most frequently experienced by low-income person are (not in priority order) consumer, money/debt, housing, employment, family law and relationship breakdown, income assistance and health, and estates? a. Yes b. No c. Not sure/don t know 3. Please rank the following legal need in order of importance to you. Consumer Money/debt Housing Employment Family law and relationship breakdown Income assistance and health Estates 4. Do you agree or disagree that LAA needs to do more to meet client needs? 5. How can LAA meet the needs of its legal aid clients more effectively and efficiently? 6. Who should be eligible for legal aid in Alberta? a. Those at or under a predetermined income level b. A portion of the population, regardless of income c. A combination of a & b. d. Don t know/not sure 232

254 7. How should eligibility for legal aid in Alberta be determined? a. Substantive method b. Financial method c. A combination of a & b. d. Don t know/not sure 8. Do you agree or disagree with the following statements? a. LAA should increase its client base by raising the income threshold b. LAA should change to a quota system 9. LAA currently provides the following list of non-mandated services. What do you think the order of importance of these services is to Albertans? a. Alberta Law Line, including its partnership with Legal Information Centre services; b. Central Alberta Law Office, except for youth duty counsel (likely provided in a different fashion); c. Family Law Office, except for child welfare and children s counsel for high conflict children s custody and/or access disputes d. Legal Aid at Siksika First Nations, except for duty counsel at criminal and youth courts e. Duty counsel other than in criminal and youth court f. All family law coverage not provided by the Family Law Office g. All non-family civil law coverage 10. Which of the following services should LAA provide: a. Just mandated services (skip to question 12) b. Mandated services plus other services. c. Don t know/ not sure 11. What non-mandated services you would like to see retained or added? 233

255 12. Do you agree or disagree with the following statements? a. LAA should continue to use a mix of staff and private bar lawyers to deliver legal aid services b. LAA should use a certificate as a last resort approach c. LAA should use mandatory mediation or settlement meetings d. LAA should use one-stop client legal services centres e. LAA should unbundle its services f. LAA should use paralegals instead of lawyers whenever possible g. LAA should establish legal clinics h. LAA should give legal aid lawyers access to Family Resource Facilitators i. LAA should enter into more partnerships j. LAA should expand staffed legal services k. LAA should establish a Public Defenders Office l. LAA should expand its staff lawyer offices m. LAA should establish a triage process 13. Please rank the following in order of importance: a. Mandatory mediation or settlement meetings b. One-stop client legal services centres c. Unbundling services d. Using paralegals instead of lawyers whenever possible. e. Establishing legal clinics f. Giving legal aid lawyers access to Family Resource Facilitators g. Entering into more partnerships h. Expanding staffed legal services i. Creating a Staff Lawyer Office/Public Defenders Office j. Establishing a triage process 14. Do you agree or disagree with the following statements? a. LAA should expand its family law representation services b. LAA should expand its staff duty counsel services 15. What would be the impact on you or your organization of expanding family law representation services? 16. What would be the impact on you or your organization of expanding staff duty counsel services? 17. What other changes could LAA make to improve service delivery? 234

256 18. LAA needs to do a better job of communicating with clients and partners like referring agencies. a. Yes b. No (skip to question 20) c. Don t know/ not sure 19. What LAA process or communication changes with clients and partners would you like to see? 20. What opportunities are there for LAA to better use the resources of other agencies to meet its clients needs? 21. How can LAA improve its application process? 22. Do you agree or disagree with the following statements? a. Reducing LAA lawyer interaction would be helpful to LAA, lawyers and clients b. LAA should determine quality assurance of lawyers through auditing and case file reviews 23. Do you agree or disagree with the following statements? a. LAA should seek a greater percentage of revenue from the Alberta Legal Foundation b. LAA should be funded by a provincial sales tax on legal services c. LAA should administer insurance schemes 235

257 Appendix F FEG Comparison - Canadian Legal Aid Plans PROVINCE Alberta British Columbia Saskatchewan Manitoba Ontario FINANCIAL ELIGIBILITY (FEG) Net income and family size: 1 $21,000 2 $26,000 3 $37,000 4 $40,000 5 $43, $46,000 Net income and family size: 1 $16,800 2 $23,400 3 $30,000 4 $36,600 5 $43,200 6 $49,920 7+$56,580 Net income and family size: Single - $11,820; Couple - $13,800; Family & 1 child - $14,700; Family & 2 children - $17,000; Family & 3 - $20,100 Gross income and family size: 1 $14,000- $23,000 2 $23,000- $27,000 3 $27,000-31,000 4 $31,000- $37,000 5 $34,000-$40,000 6 $37,000-$43,000 New FEGs coming; will be based on gross income; currently ASSETS CONSIDERED Yes; if there are assets that can be sold or liquidated to pay legal fees, coverage is not granted Similar to Alberta Assets considered Considered Considered FAMILY DEFINITION Applicant, dependent children, spouse, common law partner Applicant, dependent children, spouse, common law partner Applicant, dependent children, spouse, common law partner Applicant, dependent children, spouse, common law partner Applicant, dependent children, spouse, INCLUSIONS FOR INCOME All income sources of Applicant, Spouse, Common law partner All income sources of Applicant, Spouse, Common law partner of more than two years Exceptions: Child Tax credit and family allowances; GST; student loans for tuition and books; children s income All income from all family members All income except child tax benefit, day care, maintenance All income REPAYMENT If financially able, repayment is expected in all cases Contributio n of $0- $100 maximum Repayment agreement if finances improve Not required Only if in the upper income amounts for each family size BASIS FOR SETTING FEGs Social Assistance levels Low-income cutoff 236

258 PROVINCE Quebec New Brunswick Nova Scotia P.E.I. Nfld. FINANCIAL ELIGIBILITY (FEG) complicated test for determining net disposable income Gross income: -Single: $8,870- $12,640 -Adult, 1 child: $$12,500-17,813 -Adult, 2 child: $15,500-21,375 -Spouse, no child: $12,500-$17,813 -Spouse, 1 child: $ 15,000-21,375 -Spouse, 2 child: $17,500-$24,938 Does not have FEGs; case by case determination Based on Social Assistance levels Net income on case by case basis; Guideline for family size: 1 $14,178 2 $17,720 3 $22,037 4 $26,677 Does not have FEGs; case by case determination ASSETS CONSIDERED Considered Considered in making case by case determination Considered Considered in making case by case determination FAMILY DEFINITION common law partner Applicant, dependent children, spouse, common law partner, if contributing to household Applicant, dependent children, spouse, common law partner Applicant, dependent children, spouse, common law partner Applicant, dependent children, spouse, common law partner INCLUSIONS FOR INCOME All income except: child tax benefit, family allowance, student bursary, tax rebates All income except Child Tax Benefit All income All income REPAYMENT Repayment only if in the upper end of income range Generally no repayment Some collection if finances change Some collection if able to pay BASIS FOR SETTING FEGs Social Assistance levels 237

259 Appendix G Expanded Duty Counsel Excerpt from Currie, A., Legal Aid Delivery Models in Canada: Past Experience and Future Direction (Justice Canada: Ottawa, 1999) pp [Footnotes from original article not included] A novel concept in duty counsel service which reflects the complex mixed model approach is expanded duty counsel. This idea was piloted in criminal legal aid service in Manitoba from 1994 to Following the implementation of an automatic charging policy for domestic violence in Manitoba, and the establishment of a specialized domestic violence court in Winnipeg, Legal Aid Manitoba experienced a dramatic increase in legal aid applications in this area. The cost of these additional cases was substantial. In 1994 the legal aid plan implemented the expanded duty counsel project, mainly in response to that situation. Expanded duty counsel was implemented in the domestic violence court and in the over-night custody court. One year later, the expanded duty counsel program was implemented for the non-custody docket. All clients encountered at first appearance receive service, regardless of financial eligibility. The main feature of expanded duty counsel is continuity; continuity of lawyers assigned to the same court for an extensive period of time, and continuity of the relationship between the lawyer and the client which allows the lawyer to retain a client first encountered in first appearance court. Expanded duty counsel might well be called a disposition model of duty counsel. The basic objective is for the duty counsel lawyer to dispose of as many simple cases as workload permits, as early as possible in the criminal justice process. This approach to service delivery rests on the assumption that a large proportion of criminal cases are quite simple. There are no complex points of law. The facts of the case are straightforward. If the duty counsel lawyer determines that there is a defense and that the case should go to trial, and if the accused person is financially eligible, the case will be transferred to a regular staff lawyer or a certificate will be issued to a private bar lawyer. However, if the duty counsel lawyer feels that the charge will result in a guilty plea or a stay of proceedings, (s)he will retain the case and attempt to resolve it in the best interest of the client. Usually this involves negotiation with the Crown Attorney. Expanded duty counsel lawyers retain cases that they feel can be resolved without a trial. However, depending on their workload, and on the number of days per week that they had to be in first appearance court, the expanded duty counsel lawyers can handle a small number of brief day or half day trials. The evaluation of the pilot project concluded that Legal Aid Manitoba achieved substantial cost savings by having the expanded duty counsel program dispose of cases, compared with the likely cost of private bar or regular staff lawyer service, with no compromise in quality of service. The expanded duty counsel cases were assessed for coverage and financial eligibility, and were divided into certificate and certificate non-equivalent cases. Three indicators of seriousness and complexity; prior offenses, other related charges, and breach of a judicial order were determined in order to assess the degree of case complexity and seriousness. These were compared with the costs of staff lawyer and private bar cases for the same offenses. Overall the data showed that expanded duty counsel cases cost considerably less than either staff lawyer or private bar cases involving the same offenses. Such comparisons were very crude, however, 238

260 because comparability was difficult to achieve. The private bar and staff lawyer cases would have included some more complex cases that the expanded duty counsel lawyers would not have dealt with. As well, the lawyers in the expanded duty counsel project may have handled cases differently than roughly identical cases would have been handled by private bar lawyers. It was, nonetheless, concluded that the expanded duty counsel service was cost effective. Expanded duty counsel became a major component of the criminal legal aid delivery system in Manitoba following the pilot project phase. In April 1997 expanded duty counsel was adopted province-wide. The impact of adopting expanded duty counsel province-wide has not been assessed. The management information system at Legal Aid Manitoba has not yet been restructured to capture a full range of data on expanded duty counsel. However, data for criminal and youth legal aid, for both staff lawyers and private bar lawyers, show that expanded duty counsel is removing many cases from the full service certificate stream, and increasing the average cost per case for full staff lawyer and private bar certificate service. The table below shows the changes in the volumes and average costs of cases since expanded duty counsel was extended province-wide. Table IX Volumes and Average Costs of Adult Criminal and Young Offender Legal Aid, Manitoba & Type of Service Volume of Cases Average Cost Per Case Private Bar Adult Criminal 6175 $ $ % +41% Per cent Change Young Offender 1439 $ $ % +35% Per cent Change Staff Lawyer Adult Criminal $ $ Per cent Change -17% +26% Young Offender $ $ Per cent Change -40% +27% Source: Legal Aid Manitoba management information system 239

261 The volume of cases has declined and the average cost has increased in each category following the implementation of the expanded duty counsel program province-wide. This has occurred as expanded duty counsel has disposed of the simpler cases at the early stages of the criminal justice process before transfer to the certificate stream or to a staff lawyer for full service is required. This clearly shows how expanded duty counsel has become a separate delivery mode, and a main component of the legal Aid Manitoba service delivery system along with the staff lawyer and private bar delivery modes. In 1995 Legal Aid Manitoba opened an Urban Aboriginal Legal Aid Clinic in Winnipeg. The clinic had fewer clients than expected during the first year of operation. This was probably because the expanded duty counsel program was removing many cases from the system, and thus from the specialized clinic. This points out how elements of a complex mixed model can come into conflict, and points to the necessity for integration of the components of a complex mixed model. A staff lawyer clinic designed specifically to serve a special needs clientele is, in itself, an illustration of the complex mixed model approach. Duty counsel services in some other jurisdictions appear to operate in a similar fashion to expanded duty counsel. In the North West Territories, staff lawyers servicing circuit courts in remote villages tend to blend duty counsel and trial work as circumstances require. Legal aid lawyers are reported to routinely resolve cases at the duty counsel stages of proceedings. A presumed eligibility system operates which ignores financial eligibility requirements unless a matter is sufficiently complex to require a legal aid certificate. Legal Aid New Brunswick reports that approximately thirty-five per cent of all duty counsel contacts result in completed or disposed matters. No formal study of duty counsel services has been carried out in that province. The nature of the matters resolved by duty counsel is not known. Duty counsel in New Brunswick is provided by private bar lawyers. It is not clear what similarities there might be between the New Brunswick and Manitoba duty counsel services. Expanded duty counsel is a new approach to legal aid delivery that is designed to deal with that relatively large proportion of the overall case load that are of minimal complexity. These simple matters can be resolved competently by expanded duty counsel lawyers, retaining clients for a week or two until a second appearance, with a minimal amount of time, and at much lower cost than if certificates were issued to private lawyers for the same cases. Costeffectiveness of the overall delivery system is achieved by utilizing this particular delivery mode targeted at the resolution of relatively simple legal aid cases at the early stages of the justice process. More complex cases are dealt with by private bar or staff lawyers. 240

262 Appendix H Staff Law Offices and Clinics: an Overview LAA and its stakeholders must develop a common terminology in order to have meaningful discussions around the use of staff offices as opposed to legal clinics. A staff law office is one which provides primarily one-on-one legal services to a client, by lawyers who are employees of a legal aid plan. These services may include advice, limited scope services, alternative dispute resolution, settlement advocacy and court or tribunal advocacy. The lawyers may be assisted by non-lawyers and social work staff. They may target client groups (refugees) or areas of law (family law), or may be more generalist or deal with clusters of legal issues. On the other hand, legal clinics may be used to provide a full range of legal services, both reactive and preventative, that best address specific legal problem areas. These services include one-on-one legal services to an individual client or to client groups, such as may be provided in a staff law office. The staff are employees. Legal services may be provided by both lawyers and non-lawyers; will be designed to respond holistically to the client s legal needs; and focus on reducing future interaction with the legal system. Case issues and trends will be monitored to determine where best to provide preventative legal services such as public legal information and education, client or community development, and law reform activities. Law reform activities may include test case litigation, presentation of briefs, and policy advocacy. There appear to be a number of situations where service delivery methods have been labelled as clinics, 59 although not all of them would fit the description above. For example: Legal Aid Ontario s community legal clinics These law offices provide legal services primarily in those areas of non-family civil law most frequently required by low income persons (e.g. income support, employment, housing, debt, consumer, human rights, immigration). They are staffed by lawyers and non-lawyers, called Community Legal Workers. Some clinics provide summary advice services over the telephone. At most 59 Information on the definition of clinics may be found at the Ontario Project for Inter Clinic Community Organizing (OPPICO) site: The role of legal clinics, along with community agencies and policy groups, is to offer practical support, such as legal representation, meeting space, administrative assistance, research and access to political and media networks ( See also, Lenny Abromowicz, The Critical Characteristics of Community Legal Aid Clinics in Ontario in (Fall 2004) 19 Journal of Law and Social Policy

263 clinics, both lawyers and community legal workers provide advice, brief services and representation of clients before courts and tribunals although non-lawyers do not appear in all courts nor handle matters in all areas of law. Staff in community legal clinics also provide services which are aimed at a client s broader legal needs or systemic needs. These services include public legal education, client/client group development, and test case/law reform activities. Community legal clinics largely do not rely on volunteers to provide legal services. While they are independent non-profit bodies with boards of directors, they are funded by legal aid and must comply with specific requirements and conditions to maintain annual funding. Their clients must meet financial eligibility guidelines, a certificate for services is not required. Pro bono clinics These law offices provide legal services primarily through the volunteer services of members of the private bar. The pro bono lawyers provide advice to clients during set clinic hours and may also take on client matters for more involved legal service provision. Most pro bono clinics also have one or two staff lawyers and/or non-lawyers who provide ongoing services to a subset of clients. In addition, some staffed pro bono clinics provide services such as public legal education, client/client group development, and test case/law reform activities. 60 Student clinics These legal service providers are normally affiliated with a law school. Law students provide advice, representation and/or preventive services, under the supervision of senior students and/or lawyers. Other social services students, such as social work students, may also work at the clinic. There appear to be two main types of student clinics: non-credit clinics, where students volunteer for a limited number of hours each week (except where they may be hired to provide some services over the summer); and credit clinics, 60 Pro Bono Law Alberta runs the Woman s Centre Legal Advice Clinic, with weekly clinics held on Tuesday evenings in Calgary. The focus of these clinics is more on the target group thana specific area of law. Further information can be found at Another pro bono service is the Family Law Project, a branch of Student Legal Services in Edmonton. They offer a Do- Your-Own- Divorce Clinic four times a year. Further information can be found at 242

264 where students work either full-or part-time at the clinic during one or more school terms and are given credit for one course or a full term of courses. 61 Advice clinics Any legal service provider, staff office, clinic or private bar firm, may hold what are usually called advice clinics either for the public or for a specified target group on specific or general areas of law. These may be one-off events or may be held at regular, advertised times to provide summary advice and referrals. 61 Student Legal Services (SLS) in Edmonton provide representation and advice to those fitting within their financial eligibility guidelines in three areas of law: criminal, civil, and family. SLS is a non-profit, student run organization operated by volunteer law students. More information can be found at Student Legal Assistance is the corresponding program at Calgary Law School ( It would seem that most if not all law schools, offer such programs. 243

265 Appendix I Staff Office Comparison Canadian Legal Aid Plans I. Percentage of Service Delivery Province Staff Offices Private Bar Alberta 10% 90% Newfoundland 100% 0% Prince Edward Island 92% 8% Saskatchewan 91% 9% Yukon 89% 11% Nova Scotia 74% 26% Nunavut 65% 35% New Brunswick 55% 45% Quebec 46% 54% Manitoba 41% 59% Northwest Territories 30% 70% Ontario 15% 85% British Columbia 2% 98% II. Types of Staff Offices Alberta Province Criminal Duty Counsel Youth only Family Immig.- refugee Info & advice lines Civil Mixed/Other No office yes yes yes 1 British Columbia yes Manitoba yes yes yes 2 Newfoundland 3 Nova Scotia 4 Ontario yes yes yes yes 5 Saskatchewan yes yes Yukon 6 1 Central Alberta Law Office and Legal Aid at Siksika Nation which handle cases in a number of areas of law 2 also have a Public Interest Law Centre and Collaborative Law Project; many staff offices provide a combination of criminal, family, poverty and child protection services 3 all services are delivered through staff 4 delivers services through 16 community law offices and one sub-office 5 Also have community legal clinics 6 provides services through lawyers in four offices and three law clinics 244

266 Appendix J Criminal Staff Offices Pros and Cons Jurisdiction and Source England, The Public Defender in England and Wales: A Flawed Experiment (2007) Scotland, Evaluating the Scottish Public Defense Service (in 2003) New Zealand, Final Report on the Evaluation of the PDS Project (2008) Ontario, Analysis of Cost Effectiveness of Criminal Law Offices in Ontario (2008) Manitoba, A Review of Manitoba Legal Aid (2004) Canada, Legal Aid Delivery Models in Canada - Past Experience and Future Directions (1999) PROs CONs Other Quality maintained or improved (well-structured files); greater use of guilty pleas, fewer changes of plea, and fewer substantive hearings; as well, greater likelihood of the charges being dropped. Insignificant qualitative difference found in conviction rates between staff offices and private bar; quicker and higher plea rate for staff offices; and an opportunity to explore alternative methods. Quality maintained; greater use of guilty pleas, fewer changes of plea, and fewer substantive hearings; as well, mentoring and training opportunities for junior staff. Efficient case-management; good quality service; reduced the number of selfrepresented litigants; the achieved resolutions were fairer to the clients; and most felt that the offices did not adversely affect the private bar. Quality maintained; fills gaps in services; provides specialized services Staff lawyers spend less time per case; tend to plead clients guilty more often; possess similar conviction proportions; and draw fewer jail terms for their clients. Not cost-efficient (start-up costs & overhead); Client recruitment problems; difficult to maintain quality-control across the offices (e.g. pinpointing and implementing necessary changes across the various offices) Initially more costly than private bar; negative private bar response leading to few cases; types of cases dealt with by staff office skewed to particular areas e.g. bail; and dependent on public perception and political climate surrounding initiatives PDSO model not intrinsically more efficient, but dependent on # and composition of cases and # and experience of lawyers Not cost-efficient (e.g. start-up costs & overhead); Client recruitment problems (choice of counsel issues); illustration of NZ con Private bar support missing for criminal, making it difficult to expand; family more expensive Dealt mainly with less serious matters; Only one out of 6 offices had definite long-term plans to remain open There are now 4 public defense offices. Since 2004,pilot handled an average of 2,398 cases/year (24% of the total criminal legal aid caseload); Deals mainly with category 1 cases The Barrie office was the top performer - 2 lawyers (rather than 3) with more experience Opened a number of staff offices since The ability of legal aid plans to develop more cost effective delivery approaches, or develop alternative delivery models is hindered by the politics of the delivery model debate 245

267 Appendix K - An Overview of Social Return on Investment The Social Return on Investment (SROI) approach was developed in 1999 in the United States by REDF (The Roberts Enterprise Development Fund), a venture philanthropic organization. It is built upon The Logic Model, used extensively by non-profit organizations and government, over the past few decades SROI s Impact Map is effectively an extension of the Logic Model 62. The main differences are that SROI: monetarizes inputs, outputs and outcomes using financial values, where available, and financial proxies, where it is not (e.g. the value of improved self-esteem); and tells the story of change through both quantitative and qualitative data, as well as case studies. SROI has spread around the world with extensive work being done by the U.K. government. It is an approach that is still developing and, like most social science evaluation tools, does not yet have accreditation. What is SROI: SROI is about value, rather than money. It measures social value, the change that is created when resources, inputs, processes or policies are combined to generate improvements in the lives of individuals or society as a whole. 63 There are three prominent models for SROI 64 : 62 Note: The Logic Model has been the standard used in Alberta by non-profit and government programs to develop outcomes and evaluate effectiveness since at least the late 1980s. Examples of recent use of the logic model in Alberta and elsewhere in Canada include: 2005 City of Edmonton Logic Model Access to Recreation Strategy for Low-Income Edmontonians (2005); Edmonton Drug Treatment Court Logic Model (2008); 2007 ESCC program Logic Model (2007); Healthy Mother Healthy Baby Program Logic Model (2008); Edmonton Mennonite Centre for Newcomers, featured in Canadian CED ; and Canadian Outcomes Research Institute Program Logic 63 Jay Emerson et al, SROI: Exploring Aspects of Value Creation (Harvard Business School, 2001), p. 1. This early article assumes that SROI measures just socio-economic value which is not quite as far along the spectrum of economic to social value. The current view seems to be that it measures social value which has three aspects economic, environmental and social. 64 Harji, Karim. Social Return on Investment. (Carleton Centre for Community Innovation: Ottawa, 2008) at p. 3. Online accessed August

268 The Roberts Enterprise Development Fund (REDF): identifies direct, demonstrable cost savings and revenue contributions associated with an individual s employment in a social purpose enterprise ; The new Economics foundation (nef): built on the work of REDF, and refined... to make it applicable to a wider range of organization. The NEF approach is more holistic, incorporating a broader range of stakeholder interests, as well as strategies to align corporate and non-profit interests. [note: nef is a U.K. based organization, founded in 1986] Social Capital Partners (SCP): A Toronto-based social venture capital organization uses a simplified REDF SROI model and employs a Sustainable Livelihoods Framework to assess the role of social enterprise in employment creation. The more current materials reviewed relating to non-profits and government follow the nef model, where what is measured is change in ways that are relevant to the people or organizations that experience or contribute to it. Most of the discussion below is based on the nef model. The use of SROI encourages a more participative and longer-term approach with an emphasis on triple bottom line measurement social, economic and environmental. SROI measures the monetized value of benefits relative to the costs of achieving those benefits... a ratio of the net present value of benefits to the net present value of the investment 65 But, it is significantly more than the number. It is a story about change, on which to base decisions, that includes case studies and qualitative, quantitative and financial information. 66 Stakeholder engagement is key to the process. SROI takes time; it is resource-intensive, requiring significant financial and human capital investments. 67 A values discussion with stakeholders needs to occur at multiple points. The impact map or theory of change that shows the relationship between inputs (what resources are used), 65 City of Edmonton/nef. Social Return on Investment: key questions and answers at p. 4. Online: accessed August Cabinet Office, Government of the United Kingdom, A Guide to Social Return on Investment (2009, London), p Emerson, p

269 the activities that produce outputs (the products of the activities) and the outcomes (the observable change in attitude or behaviour) and their indicators need to be developed. Data must be gathered for inputs, outputs and outcomes, both quantitative, qualitative and case studies. Everything must be monetarized by data or financial proxies. The impact of the change must be determined by eliminating what would have happened anyway. Finally, the ratio must be calculated and the story with quantitative and qualitative date, told. These processes can take several months, unless the organization already produces good outcome data or has a system of social accounting in place. I would suggest that those organizations already using the Logic Model for program planning and evaluation would find it a much easier process. Good record keeping is essential to completing an SROI. The Impact Map is key (see sample in SROI UK Guide 2009.pdf, pp ). As well, the SROI report needs to show the process, assumptions, decisions and reasons for decisions along the way in order to tell the story. Types of SROI: There are two types of SROI: evaluative and forecasted. Evaluative SROI is the most common. It is retrospective and based on analysis of actual outcomes that have taken place and for which data is available. Forecasted SROI predicts how much social value will be created if the activities meet their intended outcomes and provides a framework for capturing outcomes. It can also be used where the project is already in operation but there is only very limited outcomes data available. It is suggested that first-time users start with a forecasted SROI to ensure you have the right data collection systems in place to perform a full analysis in the future. 68 As well, first time users should start simply with one project in their organization, rather than the whole organization. It is important to get training or help and divide the SROI analysis amongst a number of people in the organization, e.g. one for the calculations, another for organizing stakeholder engagement, etc. Principles of SROI: Stakeholder engagement/involvement Understanding what changes 68 Cabinet Office, p

270 Valuing the things that matter Only including what is material Not over-claiming Transparency Verifying the results Six stages for doing SROI: 1. Establishing scope and identifying key stakeholders: setting boundaries and who will be involved. 2. Mapping outcomes: developing the impact map which shows the relationship between inputs, outputs and outcomes; this is called the theory of change or logic model 69 ; identify and value inputs; clarify outputs; describe outcomes. 3. Evidencing outcomes and giving them a value: did change happen and if so, what kind? Need to develop outcome indicators; collect outcomes data; establish how long outcomes last; put a value on the outcome, which may include proxies (see a sample table for collecting outcomes data and for proxies in SROI UK Guide 2009.pdf, p. 41 and 49). 4. Establishing impact: impact is the change that would occur once change that would have happened anyway or is a result of other factors is eliminated; makes the SROI more credible; examples are: deadweight (%age of change that would have happened anyway), displacement (the problem moves somewhere else), attribution (%age of change caused by others), and drop-off (how long the change will last). 5. Calculating the SROI: adding the benefits, subtracting the negatives and comparing to the investment made; involves projecting in the future, calculating the net present value (a controversial area subject to much research and discussion), calculating the ratio and sensitivity testing 6. Reporting, using and embedding: sharing findings with stakeholders, embedding good outcomes and verifying the report Strengths: 69 Cabinet Office, p

271 Emphasis on engagement with stakeholders opens up conversations; aid communication with internal stakeholders, especially those responsible for finances and resource allocation; to speak the language of economists or people opposed to the work you do Triple bottom line focus economic, environmental and social value Accountability and transparency provides both numbers and story to support them Useful in change management can provide feedback on effectiveness Cost and time effectiveness focuses on critical impacts Can raise profile and improve case for further funding Weaknesses: Difficulty of the analysis resource intensive Over-emphasis on the ratio ratio is a strength and a potential weakness; easy to see the ratio as an end in itself and ignore the wider story; can be problematic if used to compare organizations Lack of external accreditation some see this as a weakness; suggest to have results independently verified by an organization such as nef Difficulty of monetizing soft outcomes e.g. Increased self-esteem, improved family relationships; need financial proxy ( a value close to the desired indicator for which there is no actual data available ); may make SROI subjective and imprecise although can test underlying assumptions Less useful when a strategic planning process has already been undertaken and implemented or when is only being taken to prove the value of a service without opportunity for changing the way things are done for the future NOTE: not useful for comparing organizations 250

272 Appendix L Tariff Comparison Canadian Legal Aid Plans Province Hourly Rate Block Fees Alberta $84.00 For selected items British Columbia Tiered Rate Based on Years of Call: For selected items Less than 4, $ to less than 10, $ or more, $92.29 Saskatchewan $80.00 For selected items Manitoba $80.00 For selected items Ontario Tiered Rate Based on Years of Call: Being piloted for four $77.56 Less than 4 common criminal $ to less than 10 matters $ or more Nova Scotia Tiered Rate Based on Years of Call and None exceptional nature of offence: $60.00 Less than 5 $ or more $ or more AND matters with mandatory life sentences New Brunswick Tiered Rate Based on Years of Call and None Type of action: $58.00 all Civil and Court-Ordered Counsel, regardless of years of call $ Criminal, less than 2 years $64.00 Criminal, 2 to less than 5 $70.00 Criminal, 5 or more Prince Edward Island Tiered Rate Based on years of call and None exceptional nature of offence: $70.00 less than 4 $80.00 more than 4 $ or more, for matters with mandatory life sentences Newfoundland/Labrador Tiered Rate Based on years of call and None exceptional nature of offence: $45.00 less than 5 $55.00 more than 5 $ or more for matters with mandatory life sentences 251

273 Appendix M Governance of Legal Aid Plans Country/Plan: Canada Alberta British Columbia Manitoba New Brunswick Newfoundland/Labrador North-west Territories Nova Scotia Nunavut Ontario Prince Edward Island Quebec Saskatchewan Yukon Organization Type Non-profit society Non-profit society established by legislation Non-departmental, government body Independent commission Corporation established by legislation Independent commission Non-profit corporation established by legislation Government program Independent commission Independent commission Non-profit society established by legislation Country/Plan: International Australia Hong Kong Ireland New Zealand Scotland South Africa United Kingdom Organization Type Eight independent legal aid commissions Government department Independent board set up as a statutory body by legislation Crown entity governed by a Board appointed by the Minister of Justice Non-departmental, public body responsible to the Scottish Government Independent statutory body governed by a Board on nonexecutive members Non-departmental, government board of independent commissioners 252

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291 15. Background and Context Papers Background/Context Paper 1 Identifying and Prioritizing the Legal Needs of Low-Income Albertans I. Identifying Legal Needs This section of the paper will identify the legal needs of Albertans by reviewing the major research from Alberta, Canada and other Commonwealth countries. The factors that impact the formation and identification of legal needs will also be identified, including how legal needs cluster and trigger. Finally, research relating to why disputes either transform into legal problems or fail to emerge at all will be highlighted. While few studies of legal needs existed in Canada prior to the 1990s, early studies here and in other countries approached the challenge of identifying needs from a professional or system access to justice perspective. These studies were largely based on the perceptions of stakeholders, such as lawyers, judges, non-profit legal services and court staff ( normative need 70 ). Waiting lists were used to justify findings of unmet needs, while the types of matters that came to the courthouse or legal aid door were used to identify legal needs ( expressed need 71 ). What this approach failed to address were those needs that did not, for whatever reason, find their way into the court system or were self-screened by individuals who did not think they could get assistance for their problems. It has been suggested that studies of legal needs cannot be isolated from social issues and that legal need is a continuum that is affected by the various stages of the legal problem or the legal system. 72 Some legal needs studies have focused on defining legal needs through a specific population group (e.g. women, the disabled, prisoners or immigrants). Using this approach, legal needs are identified in relation to the specific problems these groups face when accessing legal 70 Liz Curran and Mary Anne Noone, "The Challenge of Defining Unmet Legal Need, in (2007) 21 Journal of Law and Social Policy Ibid. at Ibid. at

292 services. That approach is more closely related to identifying barriers to accessing legal services, as opposed to actual legal needs. As a result, such studies will be highlighted in the part of this Review that explores service delivery options. Over the past 15 years, legal needs are increasingly being identified by asking individuals about the legal issues in their everyday lives the justiciable problems of everyday life. Justiciable problems are defined as a problem that has a legal aspect, whether or not the person experiencing the problem is aware of the legal aspect and whether or not the person engages any part of the legal system in an effort to resolve it. 73 This new approach has been driven by the lack of empirical evidence underlying the professional access to justice approach to needs identification. It also examines the consequences of unmet legal needs, not just from the perspective of lawyers and courts, but on the individual and society as a whole. Using this approach, early studies showed that at least 24% of specific populations around the globe had experienced legal problems: 24% in Scotland, 74 34% to 37% in England 75 and Wales, 76 47% to 52% of low and moderate income persons in the United States of America, 77 and lastly 51%in New Zealand. 78 The ubiquity of legal problems, compounded by lack of access to the justice system, results in the development of further legal and social issues. While these studies have primarily identified civil legal needs, criminal legal needs are also identified. Most of the research, regardless of jurisdiction, has produced quite similar findings. What follows is an overview of the major studies of legal needs in Alberta, Canada and the UK studies, most of which use this approach. A. Alberta Studies: 73 Ab Currie, Justiciable Problems and Access to Justice in Canada (paper presented at the Osgoode Hall Roundtable on Legal Aid, Toronto, 2007), p Hazel Glenn and Alan Paterson. Paths to Justice Scotland: What People in Scotland Do and Think About Going to Law. Oxford:Hart Publishing, Cited in Canada. Department of Justice. Research and Statistics Division. Ab Currie. A National Survey of the Civil Justice Problems of Low and Moderate Income Canadians: Incidence and Patterns (April 2005). 76 Glenn, Hazel. Paths to Justice: What People Do and Think About Going to Law. Oxford: Hart Publishing, American Bar Association. Legal Needs and Civil Justice: A Survey of Americans (ABA: Chicago, 1994). 78 Cited by Ab Currie, A National Survey of the Civil Justice Problems..., see note 71 at

293 Ongoing, Alberta Legal Services Mapping Project: The Canadian Forum has undertaken this multi-year project, which is designed to gain a better understanding of what legal needs Albertans have, the extent to which these needs are currently being met and how access to legal services can be improved 79. The Project will create a province-wide "map" of legal services including information, education, legal advice, legal representation and/or other supports or assistance related to legal problems. The interim report on Calgary legal needs and services is due to be released in June, , Legal Aid Alberta (LAA) Needs Assessment 80 : In 2007, LAA hired Prairie Research Associates, Inc. (PRA) to determine whether LAA is meeting the legal needs of low income Albertans and to assist LAA in improving programming. PRA s findings were based upon: information obtained during meetings with stakeholders and focus groups in the 11 LAA Regional offices; a general population telephone survey anchored on postal codes with low to medium incomes (63% had household incomes of less than $50,000); a mail survey of community and government agencies whose clientele included low income Albertans; and a review of LAA data on usage and costs of its different programs and services. The report found that LAA typically issues the most certificates for two types of legal matters: family and criminal law. Other issues faced by low-income Albertans include the following: landlord/tenant disputes, government benefits coverage, employment disputes, and immigration/visa issues. 81 Common legal concerns or problems were 82 : Common legal concerns or problems Community and government organizations (n = 131) Experienced by your Underserved population Income < $50,000 (n = 402) Experienced by people you know clients None -- 14% Family Law 85% 53% Criminal law 60% 26% Problems receiving government benefits 60% 29% 79 Canadian Forum on Civil Justice. Alberta Legal Services Mapping Project Charter. (Edmonton: Canadian Forum on Civil Justice, 2008) 80 PRA Inc., Legal Aid Alberta Needs Assessment Final Report (Edmonton: Legal Aid Alberta, 2007). 81 Ibid. at Ibid. at 24, Table

294 Common legal concerns or problems Community and government organizations (n = 131) Experienced by your Underserved population Income < $50,000 (n = 402) Experienced by people you know clients Landlord and tenant/housing disputes 51% 30% Legal issues with employment 41% 19% Immigration matters 31% 18% Bankruptcy and debt actions 31% 16% Legal issues with buying goods or 20% 11% services Wills and estates 2% -- Guardianship/trusteeship 2% -- Other 8% 5% Don t know/no response 1% 1% Note: Respondents could provide more than one answer. Totals sum to more than 100%. These findings were confirmed by participants in focus groups and respondents in the underserved population survey. 2007, Alberta Self-Represented Litigants Mapping Project Final Report 83 : This project focused specifically on the needs of self-represented litigants in the civil court system. The report noted that SRLs involved in a civil court case, other than a family law matter, have the fewest service resources. Even within the Provincial Court (Civil Division), people required assistance in understanding the process. Some of the areas of need that the courts and service providers identified included: wills, estates, guardianship and trustee matters; 84 followed by landlord and tenant issues. 2006, Social, Economic and Health Problems Associated with a Lack of Access to the Courts 85 : In this report, the key social, economic and health problems suffered by individuals were linked to particular areas of law. The areas of law that generated the most of 83 Mary Stratton, Alberta Self-represented Litigants Mapping Project Final Report (Edmonton: Canadian Forum on Civil Justice, 2007). 84 The overlooked needs of seniors were also raised in one of the Alberta CJSP focus groups. It is interesting to note that both the BCSHIC and the Alberta Law Line report low use of their services among people over 60 years of age. The reasons for this need further exploration. 85 Mary Stratton and Travis Anderson, Social, Economic and Health Problems Associated with a Lack of Access to the Courts (Edmonton: Canadian Forum on Civil Justice, 2006). 273

295 these problems were: family law (custody, access and maintenance, child protection) and criminal law (assaults, police involvement). The key problems which resulted were: financial, mental health, physical health and safety and security problems. 1998, The Legal Needs of Low-Income Edmontonians: A Proposal for a Needs Assessment 86 : This proposal noted the lack of information and surveys of legal needs in Canada at the time. Recourse was made to American surveys of legal problems among lowincome persons which identified the most common (without ranking them) as: landlord and tenant; receipt of government benefits; accident and motor vehicle insurance; personal injury; unsafe working conditions, criminal charges and income maintenance, including child support payments. 1989, The Report of the Task Force on Legal Aid (Alberta) 87 : This brief report suggested that criminal and family coverage continue at Legal Aid Alberta. It also recommended civil legal aid coverage in the following areas (not ranked): testamentary matters; Public Health Act appeals; civil rights; arbitration; incorporation of non-profit organizations; administrative tribunals; duty counsel for civil matters, where warranted; and other non-civil where warranted. Merit was a suggested requirement in some areas. B. Major Canadian Studies: Ongoing, the Law Society of Upper Canada s Civil Legal Needs Project 88 : The Law Society of Upper Canada has approved the launch of a Civil Legal Needs Project which will attempt to identify the legal needs of low and middle income persons. It will assess both the legal and social component of that need. Although the perspectives of the legal community and social service providers will be included, the focus will be on the public identifying their justiciable problems. It is anticipated that this will uncover trends in civil legal problems 86 The Edmonton Social Planning Council, The Legal Needs of Low-Income Edmontonians: A Proposal for a Needs Assessment (Edmonton: Edmonton Social Planning Council, 1998) 87 The Attorney General of Alberta, et al., The Report of the Task Force on Legal Aid (Edmonton: Government of Alberta, 1989.) 88 Law Society of Upper Canada, Report to Convocation of the Access to Justice Committee: Ontario Civil Legal Needs Project (Toronto: LSUC, 2008) 274

296 that may not be treated or classified as such. 89 The methodology will be similar to that of the Department of Justice s 2006 and 2007 studies referred to below. 2009, Lives of Trouble: Criminal Offending and the Problems of Everyday Life 90 : This paper explores how criminal offending is embedded in a complex set of problems including the family law and civil justice problems of everyday life, long standing social problems and mental and physical health issues. 91 The study did not look at the most marginalized offenders (e.g. the homeless or those with serious mental health or abuse issues) but at more mainstream offenders. Two previous Canadian surveys have shown that, for a sizable proportion of the population, troubles do not occur in isolation. 92 Problems tend to cluster in patterns, where specific legal problems trigger other legal problems, as well as health-related and social problems. A problem that remains unattended can and will grow into other related problems. By attending to the first problem, it is likely that later problems can be prevented. In the two studies, 46.6% (2006) and 54% (2008) of those surveyed experienced one or more justiciable problems within the three-year period. Criminal offenders had a larger number of problems than others, in that 86.9% of them experienced one or more justiciable problems. Offenders also had larger problem clusters with 73.2% experience three or more justiciable civil problems, compared to 46% for the overall sample. Problems were grouped into 16 types, with the most common being consumer (29.4%), neighbourhood problems (20.6%), debt (19.8%), employment (16.5%), wills and powers of attorney (6.3%), relationship breakdown (4.1%), threat of legal action (2.9%), personal injury (2.7%), discrimination (2.1%), social benefits (2.1%) and housing (2%) 93 : The offender group experienced a much higher percentages of debt, housing and employment problems. 89 Ibid. at Ab Currie, Lives of Trouble: Criminal Offending and the Problems of Everyday Life (Ottawa: Department of Justice Canada, 2009) 91 Ab Currie, Lives of Trouble, p Cited here are Ab Currie, (2006) A National Survey of the Civil Justice Problems of Law and Moderate Income Canadians, (2006) 13 International Journal of the Legal Profession, No. 3) and Ab Currie, (2008) The Legal Problems of Everyday Life, paper presented at the International Legal Aid Conference, Antwerp. 93 Ab Currie, Lives of Trouble, p

297 Other research has shown that the consequences of these problems is more severe for lowincomes persons. This study confirms other research showing that justiciable problems occur in groups rather than singly; and that persons who have higher levels of civil justice and social problems are more likely to be involved with the criminal justice system. The research suggested a possible causal connection between the pre-existing civil justice problems around employment, debt and housing and the criminal offending behaviour. It posits the need to place more emphasis on problem solving justice and less of an exclusive emphasis on adversarial justice. As well, the need to resolve civil justice problems which may trigger criminal justice problems and result in the formation of a cluster flows from this research. 2008, Legal Problems Faced in Everyday Lives of British Columbians 94 : This IPSOS Reid survey was undertaken on behalf of the Legal Services Society in British Columbia. It surveyed 1,189 persons and found that 83% experienced legal problems. Young persons were significantly more likely to have experienced legal problems. The most frequent legal problems were found to be: consumer (51%); money/debt (46%); housing/land (36%); employment (35%); family relationship (32%); personal injury (29%); welfare/social assistance (24%); wills & power of attorney (19%); discrimination (16%); police incidents (15%); legal action (15%); hospital treatment/release (15%); and immigration (8%). It is interesting to note that both family and welfare/social assistance legal problems have a higher incidence than found in some other surveys of everyday legal problems. 2008, Civil Legal Needs Research Report 95 : This research also examined British Columbian s experience with legal problems in the course of their daily lives. Many were identified as being difficult to resolve and having serious consequences. Consumer, debt and employment problems were the most frequent, followed by family, estates and trusts, and personal injury matters. Low income persons tended to experience more problems than the average, especially in the areas of debt, family law, housing, income assistance and mental 94 Ipsos Reid, Legal Problems Faced in Everyday Lives of British Columbians (Vancouver: Legal Services Society, 2008) 95 Carol McEwon, Civil Legal Needs Research Report (Vancouver: The Law Foundation of British Columbia, 2008) 276

298 health. When these problems remain unresolved due to lack of legal assistance, they experience more serious consequences and further problems were triggered. 2008, The Incidence of Justiciable Problems in Civil Matters in Canada: Three National Surveys in 2004, 2006 and : The three surveys were designed to allow people to selfreport problems with a legal aspect that were serious and difficult to resolve. While there is some inherent subjectivity in this approach, it also allows for a broad enough reach that all problems can be captured, whether or not they would normally be brought to the justice system for resolution. The percentage of people reporting justiciable problems reached a low of 44.6% in 2006 and a high of 49.6% in The three most prevalent problems areas in all three surveys were consumer, employment and debt matters, followed by housing, wills and powers of attorney, and personal injury. Neighbourhood problems were added to the list of 80 problem areas in 2008 and garnered 19.5%. 2007, Justiciable Problems and Access to Justice in Canada 97 : This paper also reviewed the findings of the 2004 and 2006 national surveys of justiciable problems and people s responses to justiciable problems. Most people do not obtain assistance for their problems although almost half wished they had and felt that assistance would have resulted in a better outcome. The main reasons why people did not take action to resolve their problems were because they did not know: their rights; that anything could be done to resolve the problem; and/or where to go to get help. Certain groups were more likely to have taken no action because of accessibility barriers, including persons with incomes of less than $25,000, Aboriginal persons, and those with less than a high school education. Even though most of those who did take action on their own were older and middle income persons, they also felt that assistance would have produced better outcomes. Both surveys identified problems that tend to cluster in specific patterns, being: Relationship breakdown, other family law problems, consumer, debt and threat of legal action; Personal injury, debt, employment; and 96 Ab Currie,The Incidence of Justiciable Problems in Civil Matters in Canada: Three National Surveys in 2004, 2006 and 2008 (Ottawa: Department of Justice Canada, 2008). 97 Ab Currie, Justiciable Problems and Access to Justice in Canada, note

299 Consumer, debt and threat of legal action. The 2004 survey identified relationship breakdown as a trigger for employment and social assistance problems. Finally, the research showed that justiciable problems trigger social and health problems including emotional and physical problems, safety and security issues, drug or alcohol consumption, and violence. 2007, Civil Justice Problems and the Disability and Health Status of Canadians 98 : This paper, based upon the 2004 and 2006 national surveys of justiciable problems, explores how civil justice problems may be related to disability and health issues. In almost every type of matter (other than involvement with police), those with a disability or those receiving disability pensions were more likely to report civil justice problems. The prevalence of problems also changed in that, debt became the number one problem, followed by social assistance and disability pension matters, consumer matters, employment, personal injury, housing, wills and power of attorney, relationship breakdown and discrimination. These individuals also had a high number of multiple or inter-locking problems. There was a greater likelihood that their justiciable problems would become worse. 2005, Canadian Survey of Justice Problems 99 : This was the first national survey of justice problems faced by low- and moderate-income Canadians. A sample of 4,501 respondents, from ten provinces, was interviewed by telephone. 100 The income of individuals was obliged to be at or below $35,000: that of families was under $50, Money/debt (27.4%), consumer (19.2%), employment (17.4%) and housing (5.4%) were the most frequently reported civil problems. This research also identified the factors that will lead to problems remaining unresolved: the youth of the person with the problem; low income; and being a member of a visible minority. Some unresolved problems become worse over time with the highest proportion of these being in the area of social assistance (social benefits), disability 98 Ab Currie, Civil Justice Problems and the Disability and Health Status of Canadians, in (2007) 21 Journal of Law and Social Policy Ab Currie, A National Survey of the Civil Justice Problems of Low and Moderate Income Canadians: Incidence and Patterns (Ottawa: Department of Justice Canada, 2005). 100 Cited by Ab Currie, see note 73 at See note 73 at

300 pensions and housing. The study also showed that those on social assistance are most likely to have three or more problems, particularly if they are single parents. Family law problems ranked 13 th on the list but are seen as higher priorities because of the long-term consequences of family breakdown for both adults and children. As well, the research showed that a variety of problems, a cluster, tends to result from family breakdown: child protection matters; the need for legal representation for a child; the threat or fear of child abduction; money and debt issues; consumer problems; employment issues and social assistance. It is suggested that legal assistance early after family law problems occur may prevent these clusters from being triggered. 2005, Poverty Law Needs Assessment and Gap/Overlap Analysis Report 102 : The Law Foundation of British Columbia report the following as the top five areas of legal need, excluding family and criminal law (which was to be reviewed by another process): welfare, housing, debt, worker s compensation, and government benefits including Canada Pension Plan/Old Age Pension. 103 Other legal problems involved disability issues; health law and estates; income tax and human rights. Although family and criminal were to be looked at separately, it was nevertheless noted that an increasing demand for assistance with family law matters had been identified and that many applicants were debilitated by these issues , The Legal Needs of Low-income Ontarians 105 : This research was undertaken as part of the Government of Ontario s 1997 review of Legal Aid Ontario. The Report notes the lack of empirical data on legal needs and the need for other research. The Review took the position that legal aid plans should be designed around needs, not around service delivery models. It acknowledged that not all legal needs must be met by legal representation at court or tribunal; that legal information, legal advice and representation or advocacy designed to obtain early resolution or settlement may be all that is required. 102 The Law Foundation of British Columbia, Poverty Law Needs Assessment and Gap/Overlap Analysis Report (Vancouver: Law Foundation of British Columbia, 2005) 103 See note 77 at See note 77 at Government of Ontario, Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services. (Toronto: Government of Ontario, 1997), pp

301 While low-income persons do have the types of personal legal problems shared by other individuals (e.g. car accidents, custody disputes, children who come into conflict with the law), they experience other problems which are often the result of the ongoing involvement of the state in their lives. Therefore, the legal needs of low income persons include: criminal law matters from arrest and bail, through to disclosure and pre-trial matters, trial and sentencing; family law matters are often intertwined with other resulting civil problems, such as housing, income maintenance or immigration sponsorship. Separation, divorce, custody, access and support are all issues which can be confusing, complex and which can arise in a number of court settings. Domestic violence and child welfare matters may also be connected. civil and administrative law matters the Report cited research that has shown that low income persons have more need for civil law services than do persons with average incomes. These types of matters include housing (landlord and tenant), income support or government benefits issues, workers compensation, discrimination issues, immigration, employment. The consequences in personal injury and medical malpractice cases are more severe when low-income persons do not have a lawyer. C. Major research from other Commonwealth Countries: 2007, The Social, Economic and Health Consequences of Civil Justice Problems 106 : This paper uses data from the 2004 English and Welsh Civil and Social Justice Survey to discern how 18 types of civil law problems impact people s lives. While the findings do not suggest that the same adverse consequences follow from every type of legal matter, they do confirm that some form of adverse consequence flows from most legal problems. Physical illness usually followed accidents, clinical negligence and domestic violence, while stress more often than not resulted from relationship breakdown and family issues. Some issues caused more worry and difficulty than others: Those who had experienced problems concerning 106 Pascoe Pleasance, et al., Mounting Problems: Further Evidence of the Social, Economic and Health Consequences of Civil Justice Problems in Pascoe Pleasance & Alexy Buck & Nigel Balmer, ed., Transforming Lives: Law and Social Process (UK: The Stationary Office, 2007)

302 immigration, homelessness, domestic violence, children and problems ancillary to relationship breakdown were in the gravest position. 107 However, regardless of the category of problem, the study showed that all legal problems would often end in a cluster of negative consequences, which in turn have an unfavourable impact on the economy. Adverse health consequences in particular resulted in direct costs via demands made on the National Health Service where respondents reported that they visited healthcare professionals consequent to their civil justice problems. 108 To offset this undesirable result, the writers advocate for integrated legal advice and wider public services to mitigate the impact of civil justice problems as much as possible. 2007, New Zealand s 2006 National Survey of Unmet Legal Needs and Access to Services 109 : The prevalence of problems (28.7%) was significantly lower for people in New Zealand than in other countries. The ordering was also somewhat different: consumer-related (10.4%); money/debt (8.1%), welfare benefits (6.7%); housing or land (5.8%); employment (5.4%), and family/relationship breakdown (4.8%). In some cases, one problem triggered another. For instance, employment problems were cited as one of the triggers for debt and personal injury as a trigger for welfare benefits. 2007, Civil Justice in England and Wales 110 : This research identifies the tendency of socio-economic problems to cluster. Four primary types of clusters are identified: Family: domestic violence, divorce and relationship breakdown problems; Homelessness: renting, homelessness, welfare benefits, problems with the police; Economic: consumer, money/debt, employment, neighbour problems; and Discrimination and clinical negligence. The research also shows that persons who were uninformed about their rights suffered greater negative consequences and that certain segments of the population are more likely to suffer from multiple problems (e.g. minority groups). 107 Ibid. at Ibid. at Robyn Nicholas, New Zealand s 2006 National Survey of Unmet Legal Needs and Access to Services: Implications for Information and Education (paper presented at the International Legal Aid Group conference, 2007). 110 Pascoe Pleasence, Nigel Balmer and Tania Tam, Civil Justice in England and Wales: Report of the 2006 English and Welsh Civil and Social Justice Survey (London: Legal Services Commission, 2007). 281

303 Of the over 3,000 persons surveyed in 2006 and the over 5,000 in 2004, 36% and 33% respectively had experienced one or more difficult justiciable problems. Consumer problems, problems with neighbour, money/debt, employment, personal injury and housing were the most frequently reported justiciable problems in both surveys. Immigration and mental health issues were the least frequent but it was noted that the latter legal problems had particularly severe, negative consequences. There was an increase in consumer, neighbourhood and welfare benefits problems between 2004 and 2006 while personal injury problems decreased. Specific groups were more likely to have justiciable problems, e.g. single parents. D. Justiciable problems, clusters and triggers: The similarities in findings around legal needs are striking. A major feature of justiciable problems research revolves around how legal problems cluster in specific groupings and how a particular legal problem may trigger others. Problem clusters arise because clients problems are multi-dimensional and are a combination of legal and non-legal issues. They are complex enough that they draw on more than legal techniques for resolution. 111 Additionally, clusters have triggers, a single issue that creates more problems. If the original problem or trigger was successfully addressed, the subsequent problems can be avoided. This will reduce the legal need and the resulting social and economic costs. Research has identified specific types or areas of clusters. 112 For example, there are advice needs clusters in the areas of neighbourhood issues, goods and services issues, housing issues, employment issues, relationships/mixed issues, and welfare benefits issues. 113 Cluster problems can make it more difficult for clients to have their legal needs appropriately identified. 114 First, they may be referred multiple times to different agencies, as different aspects of their needs are focused upon based on that agency s mandate. Referral fatigue may result - at each point of referral, the client may choose to not pursue the issue with another provider. Problems thereby go unresolved and, in turn, trigger more problems. Second, problems that appear to be separate may need to be examined together and addressed together Moorhead, Clusters at Ibid at Ibid. 114 Ibid. at Ibid. 282

304 This is known as intersectionality. Third, cluster problems may not be apparent as clients may not present their multiple problems for two key reasons: 116 They may not see the connection between the problem for which they are seeking help and the trigger problem; or They may present only one problem due to a belief that the agency will only deal with one type of problem or fear of stigma. The problems surrounding social benefits were found to trigger a variety of problems including debt, illness/disability, problems with current or former partners, employment difficulties, and housing problems. 117 The research set out above shows that Canada has a high prevalence of unresolved justiciable problems which tend to multiply, have identifiable triggers and cluster in definite patterns. Persons uninformed about their legal rights suffer greater negative consequences. Some groups are more likely to suffer from multiple problems. Research in other jurisdictions has come to similar conclusions and suggests that justiciable problems should be dealt with through an integrated model that places them within the context of causes and consequences. Given the trigger and cluster phenomena, early intervention could save costs to legal aid, health/social welfare systems, as well as improving a client s quality of life. E. A Caveat: The Transformation and Non-emergence of Disputes: One of the inherent shortcomings in asking people to self-identify their legal problems is that people do not always know they have a legal problem. As a result, legal needs may be underrepresented, particularly in those areas outside of criminal and family where people are less knowledgeable or inclined to see their problem as legal. Problems transform into disputes, which are then capable of resolution, through a process of understanding one has suffered an injurious experience; that it is being caused by someone 116 Ibid. at Ibid. at

305 and can be rectified; and by asking for redress ( naming, blaming and claiming 118 ). Lack of knowledge about legal rights and remedies could prevent this transformation from occurring. There is specific developing research relating to the non-emergence of disputes in the area of social benefits which may strengthen the argument that legal problems in these areas will be under-reported and under-represented in legal needs surveys. The vast majority of social benefits applicants do not challenge adverse decisions either at internal review or external appeals to tribunals. 119 While the naming, claiming and blaming model may account for some of this non-emergence, others reasons have been identified, including: ignorance of rights and procedures; cost; ignorance of the right or availability of review or appeal; the complexity of the appeal process and absence of appropriate help; physical barriers to access; a belief that the agency has no discretion; and applicant fatigue, which is exacerbated by the number of stages of review and/or appeal, greater delay and complexity. 120 Research has shown that legal representation at the informal dispute resolution stages makes a difference in the outcome and results in more success for applicants. 121 F. Summary: Legal needs research over the past 15 years has focused on identifying the legal problems of everyday life, people s justiciable problems. It has done so to address the previous lack of empirically-based information about legal needs and to ensure that legal needs which, for whatever reason, do not enter the legal system are identified. The main studies from Alberta, Canada and the Commonwealth countries have made similar findings: that people frequently have legal problems in their lives; that they are more numerous and the consequences are more severe for specific groups such as low income persons or those with disabilities; that legal problems cluster in specific patterns and are triggered in specific ways; legal problems area interconnected with social problems; and that unresolved problems lead to other legal, social or 118 W. Felstiner, R. Abel, and R., Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming... in Macfarlane, Julie, Dispute Resolution: Readings and Case Studies (2 nd Ed). (Toronto, 2003), p David Cowan and Simon Halliday, et al., The Appeal of Internal Review: Law, Administrative Justice and the (non-)emergence of Disputes, (Oxford: Hart Publishing, 2003), p. 1 and Michael Adler and Jackie Gulland, Tribunals Users Experiences, Perceptions and Expectations: A Literature Review, (London: Council on Tribunals, 2003). See also Cowan, note 50, pp Cowan, note 50, pp

306 health problems. The legal problems most frequently experienced by low income persons are consumer, money/debt, housing, employment, family law and relationship breakdown, income assistance and health and estates. Criminal offenders have more civil justice problems than nonoffenders and those civil justice problems may be triggers for the criminal problems. Research relating to clusters and triggers has found that early intervention can reduce the likelihood of multiple problems being triggered and reduce the need and cost of legal services. Finally, some areas of legal need, such as social benefits issues, are under-represented in studies of legal needs. II. Prioritizing Legal Needs This section of the paper will highlight the considerations that could be taken into account when setting priorities for legal aid services. These include: rights to counsel based upon the Canadian Charter of Rights and Freedoms; legislative mandates and other legal agreements to provide legal services in particular areas; and how current research could assist in adopting a desired outcomes. Traditionally, Canadian legal aid plans first service delivery priorities are based on Charter, legal and contractual guarantees to representation. The courts have determined, in complex criminal cases and in child welfare, cases that governments have an obligation under the Canadian Charter of Rights and Freedoms to fund or provide a lawyer for an individual, where he or she is unable to pay for one. 122 It should be noted that these cases have not provided an overarching right to counsel in any criminal or child welfare matter. Right to counsel exists where a fair hearing would not otherwise be possible. So far, that protection has not been extended to other areas of civil law. As well, the courts have also found that persons detained by police have a right to immediate access to legal advice by telephone. 123 This has resulted in the service known as Brydges Duty Counsel, which is provided by Canadian legal aid plans. 122 See New Brunswick (Minister of Health and Community Services v. G.(J.), [1999] 3 S.C.R R. v. Brydges [1990] 1 S.C.R

307 There are other statutory rights to government-funded legal assistance, notably the right to legal advice and representation within the Youth Criminal Justice Act 124 and certain sections of the Criminal Code (e.g. persons with mental disorders who are unfit to stand trial and some criminal appeals). The Federal Government has also placed specific obligations on Provincial Governments, with respect to legal aid, through the Federal Provincial Contribution Agreement. The Federal Government contributes toward the cost of criminal, youth and immigration/refugee legal aid. As a result, provinces enter into an agreement with their respective legal aid plans to ensure that the services for which the Federal Government is making contribution are provided through the plans. In Alberta, these requirements are set out in the Governance Agreement between the Ministry of Justice, the Law Society of Alberta and the Legal Aid Society of Alberta. LAA is specifically required to provide the following, within its available resources: Brydges Duty Counsel services; Counsel in provincial prosecutions under the Criminal Code of Canada for certain persons pursuant to sections 278, and of the Code (record requests; cross-examination of persons under 18 years of age and fitness hearings); Counsel for children in high conflict private custody and/or access matters where it is necessary to protect the best interests of the child; Services that comply with the federal/provincial cost-sharing agreement; and Operate the Youth Criminal Defence Office and the Family Law Office. 125 LAA is also required to pay for court appointed counsel for youth and adult persons. Finally, some legal aid plans, such as Ontario, have specific legislation setting out their mandated areas of service. 126 Where legal aid plans provide services over and above these required services, they often identify the criteria to be used for prioritizing those additional services. The Report of the Ontario Legal Aid Review suggests out eight themes which are important for this purpose: 124 Youth Criminal Justice Act, S.C. 2002, c. 1 Y-1.5, section Legal Aid Alberta Governance Agreement, 2006, s See for instance, section 13 of the Legal Aid Services Act, 1998 (S.O. 1998, Chapter 26) which requires Legal Aid Ontario to provide services criminal law, family law, clinic law (i.e. certain areas of non-family civil) and mental health law. 286

308 Undertaking consultations and environmental scanning of needs; Responding to a broad range of needs; Employing strategic oversight at the system-wide level coupled with responsiveness to local conditions; The limitations of using the negative liberty test [for criminal law] in setting service priorities, as it can leave other equally deserving legal needs unaddressed; Integrating delivery model issues with the priority setting process; Focusing the priority setting debate on client impact; Using resources strategically to facilitate access to justice; and Subjecting priority setting to revision in light of experience in an evolving social and legal environment. 127 The Report notes that a lack of legal services can affect the short- and long-term emotional, financial and physical well-being of clients and their families. Often, the legal services required to be provided by legal aid plans under Charter, statutory and contractual requirements consume most, if not all, of a plan s resources. However, the benefits of alternative service delivery methods and new knowledge around the manifestation and impact of unmet legal needs suggests that governments and plans may need to look at additional criteria for setting service delivery priorities. B. Should legal aid plans aim for desired outcomes and if so, whose? The Australian Attorney-General s Department recently evaluated the Australian legal aid commissions Family Dispute Resolution Services 128. The evaluation found that the family law services provided (and the way in which they are provided) focused on the best outcomes for children. They also found that by using non-litigation approaches, the service provided a timely, less adversarial and lower-cost way of resolving family disputes. As the screening and intake procedures became more sophisticated, two other positive outcomes occurred: better and more 127 Report of the Ontario Legal Aid Review, pp KPMG. Family Dispute Resolution Services in Legal Aid Commissions: Evaluation Report. (Canberra: Attorney-General s Department, 2008) 287

309 meaningful referrals to other service providers; and the early identification of cases involving family violence or child protection issues. The commissions themselves benefited from some significant cost reductions, as well. It is anticipated that an increase in the provision of these services may also reduce the current backlog of family law cases experienced in the Family Court of Australia and the Federal Magistrates Court. What does this mean for how legal aid plans set priorities? Should legal aid plans look at achieving best outcomes for clients? If so, how are best outcomes to be defined for a criminal law client? For youth offenders, it has long been recognized that the best outcome is to keep young people out of the criminal justice system and help them overcome the underlying socio-economic factors which have led to their involvement with it in the first place. This holistic philosophy is the foundation for programs like the Youth Criminal Defence Office. Does this apply to adult offenders? Some research suggests it does 129. For a civil law client, the best possible outcome may vary, to some extent, with the legal issue. Is the best outcome that parents learn to communicate positively with each other so that they can work together in the interest of the children, without resort to the justice system? Or, that a misunderstanding with a government official is clarified early on so the problem does not become more serious and put a family s income, other benefits or ability to remain in this country in jeopardy? Again, some research suggests points in this direction 130. The research highlighted under Question 1 also cannot answer the question as to whether legal aid plans can or should look at specific ways to address legal needs that cluster or are prone to specific triggers. However, many of the studies do suggest that early intervention, to avoid triggers and additional clusters, could reduce legal services costs and possibly free up resources for to service additional needs. D. Summary: Some services, particularly in the areas of criminal law, child welfare and immigration, must be provided by legal aid plans due to Charter-based guarantees or legal or contractual imperatives. It has been suggested that, where plans are setting criteria for prioritizing services, 129 Ab Currie, Lives of Trouble. 130 See KPMG and Cowan. 288

310 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 See Report of the Ontario Legal Aid Review. 289

311 Background/Context Paper 2 Unbundled Legal Services Brief Services Civil justice reform is being spurred by several factors: the increasingly high costs of litigation, the delay faced by many and also the obstacle of procedural complexity as they try to access the justice system. These aspects have combined to create what Chief Justice McLachlin has described as an epidemic of lack of representation. 132 The price of legal services has skyrocketed to the point that it is impossible for many people to afford, and while legal aid plans try to provide help, their funding is not without limits. Although some litigants are happy to represent themselves, the procedural rules of Court and evidence act as a barrier that prevents many from attempting to undertake litigation on their own. A recently proposed solution is that of limited, unbundled, specific task or discrete services. The theory is that akin to choosing desserts a la carte, one may choose legal services that way as well. Rather than retaining a lawyer for the full duration of the matter as is traditionally done, a lawyer would be retained only for that which the client would like help with. For example, a lawyer may be retained only for drafting a document, appearing in court to argue a particularly difficult argument, or to provide procedural guidance. Unbundled services provide a mid-way option between the two extremes of full service representation and no representation. Yet many lawyers are reluctant to provide limited scope services; their hesitancy stemming mostly from concerns about how their specific task services will be received by their peers and the courts. Would the courts be pleased by their efforts to meet unmet legal needs? Or, would the courts chastise them for providing discrete rather than full pro bono services? Research shows that these fears are mainly centered on two topics: drafting assistance and limited court appearances. As of 2005, 13 states in the United States had already adopted unbundling practices. At the time, the New York State Bar Association was in the process of determining whether or not to join the ranks of those providing recognized discrete legal services. Their report indicated that 132 Doug Munro, ed., Report of the Unbundling of Legal Services Task Force Limited Retainers: Professionalism and Practice, (The Law Society of British Columbia, 2008), at page

312 each of New York s poor households experienced an average of 2.37 unmet civil legal needs annually, a total of approximately 2.5 million legal problems for which no lawyer was available. 133 Few solutions were proffered on how to fix the problem aside from a call for more free legal aid and more pro bono representation by lawyers: it was felt neither solution was truly viable nor sustainable. As Klempner notes, It is this reality that calls for examination of nontraditional models of legal representation that might make the justice system available to those who cannot now effectively use it. 134 Nevertheless, with regards to limited appearances, there exists a concern that the level of competence needed for unbundled limited appearances cannot be met due to the inherent difficulty in trying to understand a file from the middle with little to no time to prepare for appearances. The matter of drafting or ghostwriting a document for a client presents other dilemmas as well. The New York City Bar Ethics Committee found in 1987 that ghostwriting inappropriately affords a party the deferential or preferential treatment customarily given other pro se litigants. 135 Courts are more lenient on self-represented clients when it comes to drafting or procedural rules than on those with lawyers, since there is a lower expectation of accuracy and familiarity with the legal system. As a result, there is the fear that a pro se litigant will gain an unfair advantage. One proposed solution is that the lawyer must always indicate that they have drafted the document, even if they will not be attending court. This proposal has led to lawyers fearing unforeseeable liability and the day that a court will demand their attendance to explain a document, despite their not being retained to do anything more than drafting. Engaging in files partway through the court process is a tricky endeavour even at the best of times. Thus, not surprisingly, the risk of being called upon to explain elements of a document or file to the court on short notice and without a retainer makes specific task representation less attractive. At the other end of the spectrum, however, some states feel that these are very much surmountable obstacles. For example, not only does California allow ghostwriting, but also no 133 Rochelle Klempner, Unbundled Legal Services in Litigated Matters in New York State: A Proposal to Test the Efficacy through Law School Clinics, presented May 9, 2005 at Partners in Justice: A Colloquium on Developing Collaborations Among Courts, Law School Programs and the Practicing Bar. 134 Klempner, Klempner,

313 stipulations are made on the lawyer to identify him or herself. This decision was based on a report by the State Bar of California which stated that California s family law facilitators, domestic violence advocates, family law clinics, law school clinics, and other programs and private attorneys serving low-income persons regularly draft pleadings on behalf of litigants. 136 At the same time, it is important to note that California did not discount New York s dread of unfair advantages intrinsic with ghostwriting. Rather, California felt that it was a problem which could be overcome with experienced and trained professionals. The report stated that family law courts have allowed ghostwriting for many years and found that judges reported that it is generally possible to determine from the appearance of a pleading whether an attorney was involved in drafting. 137 Still, in California and elsewhere, judges have in some instances demanded the drafting attorney appear in court, despite their singular role as ghostwriter, 138 and in other cases, have even chastised them for their limited scope representation. 139 The Law Society of British Columbia (LSBC) has recently begun to contemplate the implementation of unbundled services as well. In April of 2008, the Law Society of British Columbia published the Report of the Unbundling of Legal Services Task Force, Limited 136 Klempner, Klempner, 13 citing Judicial Council of California, Report on Limited Legal Assistance With Recommendations for California at (accessed on July 28, 2009). 138 Mary Helen McNeal, Unbundling and Law School Clinics: Where s the Pedagogy?, 7 Clinical L. Rev. 341, 353 (2001). 139 Klempner, at At footnote 70, Klempner provides amples support by way of case law and civil procedures rules : See In re Merriam, 250 B.R. 724, 732 (D. Colo. 2000) (requiring a ghostwriting attorney to sign a bankruptcy petition); Ricotta v. California, 4 F. Supp. 2d 961, 987 (S.D. Cal. 1998) (condemning, but not charging with contempt, attorneys who helped pro se litigants with materials they knew would be used in Court); Clarke v. United States, 955 F. Supp. 593, 598 (E.D. Va. 1997) (finding that ghostwritten pleadings are a deliberate evasion by the attorney of Rule 11 of the Federal Rules of Civil Procedure); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F. Supp. 1075, (E.D. Va. 1997) (finding ghostwritten pleadings inconsistent with procedural, ethical, and substantive rules of the court); Wesley v. Don Stein Buick, Inc., 987 F. Supp. 884, 887 (D. Kan. 1997) (granting a motion to compel disclosure of whether the ostensibly pro se party was receiving behind the scenes lawyering); Somerset Pharm., Inc. v. Kimball, 168 F.R.D. 69, 72 (M.D. Fla. 1996) (finding that ghostwriting taints the legal process); Johnson v. Bd. Of County Comm rs, 868 F. Supp. 1226, 1232 (D. Colo. 1994) (holding that ghostwriting may subject lawyers to contempt charges), aff d on other grounds, 85 F. 3d 489 (10 th Cir. 1996); Klein v. H.N. Whitney, Goadby & Co., 341 F. Supp. 699, (S.D.N.Y. 1971) (Condemning a pro se litigant s surreptitious enjoyment of the benefits of an attorney); Klein v. Spear, Leeds & Kellogg, 309 F. Supp. 341, (S.D.N.Y. 1970) (stating that ghostwriting smacks of gross unfairness ). 292

314 Retainers: Professionalism and Practice. 140 The report addressed some of the concerns raised by the New York report. With regards to drafting, LSBC did not think it would be improper to ghostwrite documents: Unless otherwise required by law or a court, the discretion to divulge the identity of the lawyer who provided drafting assistance should lie with the client. 141 It was also recommended that the Rules of Court be amended to make it easier for lawyers to draft or assist in drafting documents without having to appear in person. 142 Indeed, it was regarded as necessary that new rules be drafted for lawyers providing limited scope services to go and off the record in an expedited manner, thereby communicating the scope of the of that lawyer s involvement to the court, the court registry and interested parties. 143 As well, it was suggested that rules surrounding conflicts of interest be relaxed so that the lawyer did not have do as diligent a search when looking for conflict, (although, a known conflict would obviously preclude them from acting). 144 The report also briefly considered what services might be appropriate for unbundling, but refrained from providing set references. Instead, it was simply suggested that if a lawyer had doubts as to whether or not they could deliver the professional services by a limited retainer in a competent and ethical manner, then they should decline the retainer. 145 On the other hand, The Civil Justice Network in Baltimore determined that the following would be suitable services to deliver in a discrete manner: legal advice, including office visits, telephone calls, fax, mail, and ; advice about availability of alternative means to resolving the dispute, including mediation and arbitration, evaluation of clients self-diagnosis of the case and advising client about legal rights, guidance and procedural information for filing or serving documents; 140 Doug Munro, Report of the Unbundling of Legal Services Task Force, Limited Retainers: Professionalism and Practice. The Law Society of British Columbia, April 4, 2008 at website: (accessed on July 28, 2009). 141 Munro, Munro, Munro, Munro, Munro,

315 reviewing correspondence and court documents; preparing and/or suggesting documents to be prepared; factual investigation contacting witnesses, public record searches, indepth interview of client; legal research and analysis; discovery, interrogations, depositions, requests for document production; planning for negotiations, including simulated role playing with the client; planning for court appearances made by client, including simulated role playing with the client; backup and trouble-shooting during the trial; referring client to other counsel and to other experts; counselling client about possible appeal; procedural assistance with appeal and assisting with substantive legal argumentation in appeal; provide preventative planning and/or schedule legal check-ups Other services as needed by the client. 146 In the end, whether or not specific services are deemed to be suitable for unbundling or not, all specific task representation should be subject to the test of lawyer competency. From November 2006 to March 2007, New York City implemented a pilot project, Lawyer for the Day, to test the efficacy of discrete representation with regards to landlord tenant disputes in their Housing Court. 147 A volunteer attorney covers one or two cases with minimal information beforehand. She or he meets the client for the first time at the courthouse on the morning of the appearance. A retainer for the day is signed, which the lawyer files and the client 146 Further information on the Civil Justice Network may be found on their website: (accessed on July 29, 2009). 147 New York City Bar, Volunteer Lawyer for a Day Project Report at page 1: Over a four-month period, from November 15 through March 6, 2007, twenty-one volunteer attorneys represented 50 litigants during sixteen morning court appearances in their nonpayment eviction proceedings. Online:, accessed 29 July

316 is represented in the hearing. Whether or not the file is finished at the end of the day, representation is finished by the end of the day. 148 A report published in February of 2008 details their findings from their follow-up of 50 cases. After speaking with the clients, it was clear that the findings were very positive. An astounding 94% of clients indicated they found the limited representation extremely helpful, especially in terms of learning about their rights and defences. 149 They also reported general satisfaction at finally feeling they were heard when represented by a lawyer. 150 New York and British Columbia are merely two of many jurisdictions contemplating discrete services in light of the fact that justice is becoming increasingly difficult for people to access. A survey by the Maryland Legal Assistance Network in 2003 discerned that all 50 states have at some point in time considered discrete services, albeit their responses to the ethical concerns, procedural issues, and practice fears were widely varied. 151 Society as a whole has become increasingly litigious as people more frequently turn to the courts for restitution and resolution than ever before. Inadvertently, the rush to seek courtroom justice has created byproducts such as inundated courts, unreasonable delays, and inflated legal retainers. Undoubtedly, these barriers must be addressed, and thus far, the general consensus appears to be that few answers are as viable in the long term as unbundling. 148 Note: In 2006, New York s population was 19,306,183 according to Wikipedia at (accessed on July 29, 2009). 149 New York City Bar, Volunteer Lawyer for a Day Project Report. Page New York City Bar, Page Maryland Legal Assistance Network, Informal National Survey of Ethical Opinions Related to Discrete Task Lawyering, Updated November 2003, accessed at (accessed on July 29, 2009). 295

317 Background/Context Paper 3 Unbundled Legal Services Enhanced Duty Counsel Duty counsel is a term for lawyers who make day of representations for unrepresented (those who would like a lawyer, but have not yet found one) and self-represented (those who are opting to not have a lawyer) accused with court appearances. In essence, duty counsel aid people with appearances that can be quickly dealt with in court. The following is a list of functions a duty lawyer may, though is not limited to, performing: adjournments, bail, child welfare motions, mental health reviews, entry of guilty pleas, sentencing for uncomplicated criminal matters, seeking withdrawal of charges, and entering consent agreements in family matters. Some legal aid plans such as Alberta have lawyers who are dedicated duty counsel, meaning that they work specifically in a particular area of law; for example, Legal Aid Alberta has child welfare, family, drug treatment court, domestic criminal and youth criminal duty counsel. These lawyers are employed to make appearances solely in those courts and as a result, develop an expertise. Other jurisdictions, like Legal Aid Ontario, also have tenant and mental health duty counsel in addition to the ones previously mentioned. 152 The main reason most duty counsel do not take on longer and more complex legal tasks such as trials, depositions, interrogations or drafting is because they simply do not have the time to do so. Running a full day trial for one person may mean twenty or fifty other people go without aid for the day. Some jurisdictions are trying pilot programs to provide enhanced duty counsel services: providing more assistance than traditional duty counsel, but not as much as full representation. British Columbia had tried such a program for a 12 month period between November 1, 2002 and October 31, The report, Evaluation of the Expanded Family Duty Counsel Project (Robson Street Court House), was published March 31, The primary objective of the pilot was described as follows: 152 Although Alberta automatically provides legal representation to those involuntarily detained under the Mental Health Act, the lawyers providing the representation are not dedicated in the same sense as duty counsel in other areas of law. Rather, mental health files are assigned to whichever roster lawyer wishes to take on the file. 153 Focus Consultants, Evaluation of the Expanded Family Duty Counsel Project (Robson Street Court House) Final Report for Legal Services Society of B.C. (31 March 2004) at (accessed on July 30, 2009). 296

318 In the expanded duty counsel model the client is more assisted than they are fully represented, but the assistance goes beyond the traditional duty counsel model that (1) if financially eligible, the client may return more than once for assistance (non-financially eligible clients are limited to 45 minutes of summary advice); (2) the project maintains a client file; (3) there may be continuity of representation; (4) counsel can assist a client in drafting documents; and (5) counsel can assist the client in case conferences. 154 They further indicated: In addition to duty counsel, the service involves an advice counsel component. Whereas clients meet with duty counsel spontaneously because both are in court, clients see advice counsel by appointment. If they do not qualify financially, they are still entitled to 45 minutes of summary advice and assistance over several visits, to a total of three hours Client[s] are given a sheet which explains activities that advice or duty counsel can or cannot do for them. If the client qualifies financially for the service, the advice and/or duty counsel can help them with all matters in Family Court (including cases involving the Family Maintenance Enforcement Program, the Family Maintenance Program and the Ministry of Children and Family Development) by: Giving clients advice about their legal rights, obligations and Family court procedures; Reviewing and helping them prepare Family Court documents; Helping them negotiate and settle issues on a temporary or final basis; Helping them prepare or review consent orders or family agreements that can be filed in Family Court; Attending court with them to request an adjournment or to get a consent order or an ex parte (emergency) restraining order; 154 Focus Consultants, ibid., Focus Consultants, ibid,

319 Helping them with simple uncontested hearings about custody, access and support; and Attending case conferences with them. 156 Even if clients did not qualify financially for the enhanced services, counsel can still provide them with up to 45 minutes of general advice about the law and how to complete court documents. Counsel can also attend court to request an adjournment and advise the client about what other resources are available. When asked in a survey about the pros and cons of the structure of the EFDCP, the advantages were noted to be: Having an intake assistant she was seen as greatly contributing to efficiency by screening clients, helping them to start filling out paperwork, determining potential conflict situations and setting appointments, ascertaining preliminary details about the client s problem, referring clients back to a FJC if they hadn t been to one yet, and maintaining files. Inclusion of an advice counsel component, which allows multiple client visits and adequate court preparation time. Co-housing with FJCs this is noted in the previous section. Having more than one lawyer present on most days (to avoid conflict situations). Having third counsel on Wednesdays (a heavy list day) to allow more time with clients. Having a five day per week program that allows for greater client accessibility, and an ability of the project to respond to urgent client needs quickly. Having a filing system (which allows for continuity of service for clients). Strong support from the bench for the project. 157 The limitations noted by some, though not all respondents were as follows: Too many counsel some respondents felt that a smaller number of lawyers serving the project (e.g. four or five) would allow for more continuity for clients and less potential for confusion around conflict situations. One respondent noted that switching lawyers can 156 Focus Consultants, ibid., Focus Consultants, ibid.,

320 be difficult for clients with family problems, as they are already under considerable emotional strain. Completing the client information form and file documentation was seen as being especially cumbersome and awkward by some counsel in duty counsel mode. Some counsel felt they were under-utilized if there was little walk-in traffic in court. Some counsel felt that the lack of a legal aid resource adjacent to the project was a limitation that often resulted in an adjournment for several weeks for some matters that could be handled expeditiously. Most FJCs were doubtful that the majority of clients could actually represent themselves in court, and still felt that direct assistance by duty counsel in court was essential. Several FJCs felt that the referral process between EFDCP counsel and the FJCs should be more reciprocal than it is at present. They felt that this was in part due to the fact that some counsel do not seriously assess the client s situation with a view to possible return to the FJC. 158 Overall, although some things may be improved upon, many clients rated the BC extended duty counsel service as quite satisfactory as Table 16 exemplifies below. 159 On a scale of 1 to 7, (with 7 indicating very effective ), all the average ratings for the different categories of assessment were above 5.0. Enhanced duty counsel services are also being piloted in Ontario. Ontario Legal Aid already has a regular duty counsel program that services all provincial courts for criminal and family matters. Although a financial test exists even for regular services, it is not widely adhered to. At a bare minimum, everyone is provided with legal information and referrals; however, more often than not, people receive the advice they are seeking regardless of their financial status. For instance, duty counsel in criminal courts provide summary legal advice and representation for adjournments, bail, guilty pleas, and sentencing. A typical day for a duty lawyer in the family courts might consist of adjournments, negotiation agreements, simple motions, conferences before judges, and child welfare matters other than trial. 158 Focus Consultants, ibid., Focus Consultants, ibid, 23, Table

321 The enhanced duty counsel pilot project commenced in 2000 in three areas of Ontario: London, Hamilton, and Oshawa. 160 The difference between the regular and enhanced duty counsel services is the latter s ability to offer continuity. An administrative support person works from the office inside the courthouse where extended duty counsel services are provided. With this person s aid, lawyers can open files for the clients, check for conflicts, and also do some follow up. There is a record for each client, indicating date of last appearance and what took place when and where. Services such as the filling out of support applications and simple filing of court papers are also available. While expanded duty counsel cannot perform tasks that take longer than an hour, client outcomes are nonetheless more quickly attained with this system rather than the certificate model. When there is a record of events, it takes less time for the lawyer to understand the file and there is opportunity for rapport to build between the lawyer and the client. 160 This information was provided by Mr. Carmelo Runco, District Area Director of Legal Aid Ontario on August 7, According to the 2006 census: London, Ontario has a metropolitan area population of 457,720 and a city proper population of 352,395; Hamilton s metropolitan area had a population of 692,911 and a population of 504,559; and Oshawa a population of 141,

322 Legal Aid Alberta Review

323 Background/Context Paper 4 Accessible Legal Services The phrase naming, blaming, claiming in the context of dispute resolution emerged in the early 1980s. 161 The phrase summarizes the underlying process that occurs before a dispute can reach a resolution. Firstly, not all disputes are known so the focus is on disputes that can be identified, analyzed and evaluated. Secondly, the capacity of people to tolerate substantial distress and injustice is not fully acknowledged. 162 What is known is that tolerance may represent a failure to perceive that one has been injured. 163 Assuming the dispute is known and that injustice is not tolerated, individuals go through a 3-step process: 1. Naming: The injured party recognizes that a wrong has been done to them and so deciphers the issue. At this point, the party also decides whether to avoid conflict and not pursue the matter further or to take further action. 2. Blaming: The injured party identifies the party responsible for the injury (or the party responsible for creating the issue). At this stage, the party decides whether to involve persons or organizations outside the dispute itself. 3. Claiming: The injured party has not only informed the party responsible for the injury, but is also asking for a remedy to the wrongdoing. If this step is not taken, the dispute remains an unperceived injurious experience. 164 Each step involves a transformation in recognition, either of the injury, the grievance, or the possible solution. Blaming and claiming involves the additional act of communicating the issue to the responsible party and/or the solution provider (i.e. the responsible party, a tribunal, or a court). The old adage that bad things occur in threes provides insight into the conclusion: problems rarely exist in isolation. Studies support the theory that when complications arise in 161 W. Felstiner, R. Abel, and A. Sarat in The Emergence and Transformation of Disputes: Naming, Blaming, Claiming... ( ), 15 Law and Society Review 631, at [Felstiner]. In 2003, Julie Macfarlane explores the concept in the context of conflict analysis. See Julie MacFarlane, Dispute Resolution: Readings and Case Studies, 2d ed. (Toronto: Edmond Montgomery Publications Limited, 2003) c. 1 at 1-3 [MacFarlane]. 162 MacFarlane at MacFarlane at MacFarlane. 302

324 life, one follows another. For instance, a sudden job loss turns into a housing issue of rental arrears, which then turns into criminal charges arising out of an act of desperation like a forging a check to the landlord. Maxims may have identified this snowball effect, but have not to date provided a solution. Fortunately, research especially from the United Kingdom has provided some insights. Namely, certain events can trigger a group or cluster of problems that remains unresolved until a person learns how to recognize the issue and seek redress for it through the process of naming, claiming and blaming. The originating event or issue that begins a chain reaction of problems is known as the trigger. The job loss mentioned above is, for example, the trigger. If the original trigger is successfully addressed, then the subsequent problems would also be avoided; thus, reducing legal need and the resulting social and economic cost. 165 Referring back to the previous example, if the person had known that they were entitled to notice of dismissal or payment in lieu of notice, the end result would likely have been avoided. They would have been able to either arrange for a contingency plan ahead of time, or else would have been paid and had the funds to pay the rent. Perhaps it is not surprising then that certain clusters tend to occur more frequently in certain areas than others. 166 Most commonly, issues arose with regards to disputes in neighbourhoods, goods and services, housing, employment, relationships, and welfare benefits issues. 167 In dealing with cluster problems, there are several factors that may affect the whether or not the client is able to resolve the issue. 168 First is referral fatigue as the client tries to find someone to provide him with the most suitable aid. Referrals can happen several times and at each point of referral the client may choose to not pursue the issue with another provider; thus, problems go unresolved and trigger more problems. 169 A second factor that may affect the determination of legal needs is intersectionality. Problems that appear separate need to be examined and addressed together. 170 However, clients may not present their multiple problems 165 Moorhead, Clusters, at Moorhead, Clusters, at Ibid. 168 Ibid. 169 Ibid. 170 Moorhead, Clusters, at

325 for two key reasons. 171 They may not realize what the trigger problem was/is due to the length of time since trigger and its relation to the issue they are presenting for advice. 172 Additionally, clients may seek help with only one problem due to fear of stigma at having so many problems, or feeling that their advisor can only deal with one type of problem. 173 After examining triggers in a Scottish study, it was found that problems were often triggered by the general difficulties of living on benefits, such as poverty, debt load, and complexity of the benefit system. 174 To better address cluster and triggers problems, comprehensive advice service has been recommended: An advice service which successfully deal[s] with these trigger problems might reduce overall levels of legal needs, reduce the social and economic costs of justiciable problems and more effectively improve the lives of hundreds of thousands of clients. He further suggests that a holistic service provision approach be taken. This approach can analyse multiple issues, placing triggers and clusters into context and as well, minimize referral fatigue by ensuring that as much as possible is resolved as soon as possible. 175 It must be recognized that one of the inherent shortcomings in asking people to selfidentify their legal problems is that people do not always know they have a legal problem. As a result, legal needs may be underrepresented, particularly in those areas outside of criminal and family where people are less knowledgeable or inclined to see their problem as legal. Indisputably, teaching clients to recognize not only the multidimensional aspects of their problems, but also to identify the triggers is important to aid in the prevention of the matter(s) happening again. Simply knowing that clusters are related, and usually arises out of an initial event may be the key to reversing the old adage that bad things must occur in threes. Once issues have arisen, however, resolution is often predicated upon the transformation of disputes from naming to blaming and finally to claiming. 171 Moorhead, Clusters, at Ibid. 173 Ibid. 174 Moorhead, Clusters, at Moorhead, Clusters, at

326 Background/Context Paper 5 Paralegals Paralegal, a term in widespread use, is a broadly understood profession even amongst common-law countries. For example, in Australia they have been variously called paralegals, legal assistants, law clerks, articled clerks, police prosecutors and certain court clerks - depending to some extent upon their role. 176 In England and Wales, however, it is more likely that a paralegal will be called a legal executive or clerk, and in the US, the terms paralegal and legal assistant are completely interchangeable. And yet, unlike a legal practitioner, it is not possible to point with certainty to qualifications, market position or function to provide a definition and determine the parameters of the paraprofession. 177 This paper will briefly characterize the function of paralegals in Canada, from their role in Alberta to their roles in other provincial jurisdictions, and will then explore their usage in a number of international jurisdictions. A paralegal is, according to the Canadian Association of Paralegals, a professional who is qualified through education, training or work experience, who is employed or whose services have been retained by a legal professional, law firm, governmental agency, private or public corporation or other entity in a capacity or function which involves the performance, under the supervision of a legal professional, of substantive legal work, which may include administrative or managerial duties, requiring sufficient knowledge of legal concepts. 178 The Alberta Association of Professional Paralegals states that their duties are at all times subject to the supervision of their Principal, and they cannot represent [themselves] to a client or any person as a lawyer. 179 In other words, they cannot counsel or advise their clients, but only relay the counsel and advice of their Principal and expressly identify it as such. Notably, where the rules of court permit agents to attend clients in court (e.g. traffic court), paralegals are not specifically 176 Jill Irene Cowley, A Comparative Study of Paralegalism in Australia, the United States of America and England and Wales (Thesis, Southern Cross University, 2004), p Ibid. 178 Canadian Association of Paralegals, About CAP, online: accessed July Alberta Association of Professional pralegals, About Us Code of Ethics, online: accessed July

327 excluded from these proceedings; however, they are presumably restricted in a fashion similar to law students in their capacity before the court. 180 Presently, there is no uniform certification and regulation of paralegals in Alberta, which has a variety of implications. For example, Albertan paralegals are not required to take a set curriculum or meet specified standards. 181 Moreover, they are not required to hold insurance, and should something go awry, there is no recourse for review, complaint, or discipline of a paralegal s conduct. 182 Paralegals in British Columbia are in a similar position to their Albertan counterparts. For some years, the Law Society of British Columbia had a task force on paralegals, and issued a couple reports considering regulation for paralegals and the expansion of their roles. 183 However, that task force has since been disbanded, and nothing came of those suggestions. Presently, there are no circumstances in which paralegals in British Columbia can give legal advice to clients. The profession has undergone the most significant changes in Ontario, where paralegals were regulated as of May , by way of the 2006 passing of the Access to Justice Act. They can now represent individuals in Small Claims Court, the Ontario Court of Justice under the Provincial Offences Act, on summary conviction offences where the maximum penalty does not exceed six months imprisonment, and before administrative tribunals, including the Financial Services Commission of Ontario. As well, a licensed paralegal, over the course of their representation of clients in the above proceedings, is permitted to do the following: give legal advice concerning legal interests, rights or responsibilities with respect to a proceeding or the subject matter of a proceeding; draft or assist with drafting documents for use in a proceeding; and negotiate on behalf of a person who is a party to a proceeding According to the Alberta Rules of Court, rr. 5.2 to 5.4., persons who can appear before the courts are self, lawyer, or agent. It is unclear whether the courts are exercising reluctance in their discretion to determine agents that appear before them, or whether paralegals on the whole choose to refrain from court proceedings, or both. 181 Law Society of Alberta, Unauthorized Practice of Law FAQs, online: accessed July Ibid. 183 See Law Society of British Columbia, Preliminary Report from the Paralegal Task Force (June 2002) online at and Report to Benchers on Delegation and Qualification of Paralegals (April 2006) online at Law Society of Upper Canada, Paralegal Questions and Answers Who needs a licence? and What is the permitted scope of practice for paralegals? online 306

328 Turning to international jurisdictions, it is worth considering the usage of paralegals in South Africa, Belgium, the UK, Australia, and the United States. Paralegals play a prominent role in South African advice offices, of which some are in partnership with the South Africa Legal Aid Board. Once paralegals have identified themselves as a paralegals and not lawyers, they can take up cases, open files, endeavour to resolve cases, and/or refer cases to a lawyer or assistance agency if necessary. 185 In Belgium, it appears that while paralegals are not allow to provide extensive legal aid or representation in court, they are permitted to give legal advice, and do so as employees of the Legal services Counters. 186 England and Wales, unlike many countries, have no offence specific to the unauthorised practice of law. 187 This is to say that anything can be done provided that it is not specifically prohibited or impermissible without sanction, whereas in America (and to some extent in Canada) nothing can be done unless it is specifically authorised. 188 UK solicitors have a monopoly on, for example, litigation, rights of audience in the main courts, certain aspects of a conveyancing transaction, and the extraction of a Grant of Representation. 189 Paralegals, however, have the right to conduct general legal business and also have absolute rights of audience in the Small Claims Court and in the majority of Tribunals. 190 Moreover, provided that they are representing their solicitor or qualified litigator employer, paralegals can have rights of audience on most interim application hearings and hearings in Chambers and in family case applications including hearings in chambers in both the High Court and the County Court other than reserved family proceedings. 191 In a legal aid context, paralegals provide advice and brief services in Citizens Advice Bureaux, as well as representation at tribunals. As well, there is widespread use of Accredited Representatives for advising clients at police stations Paralegal Advice and Education Training Unit, Paralegal Skills and Opening an Advice Centre (South Africa) online at National Report: Belgium (Paper presented to ILAG, Cardiff University, 2007). 187 The national Association of Licensed pralegals, About Us what is the difference between solicitors and pralegals? (United Kingdom) online: Ibid. 189 Ibid. 190 Ibid. 191 Ibid. 192 Carolyn Regan, CEO, Legal Services Commission (United Kingdom) (Electronic mail - 6/11/2009). 307

329 Each of Australia s six states and two territories has a separate legal aid commission, which permits varying roles for paralegals. The Legal Services Commission of South Australia offer legal advice appointments to persons on most legal matters, and employs both experienced paralegals and lawyers as their legal advice advisors. 193 Paralegals in Western Australia can, under the supervision of lawyers, provide minor assistance to clients. This entails providing advice, completing brief services, negotiating on the client s behalf, and prepping the client for self-representation). 194 The Northern Territory Legal Aid Commission s legal information line is staffed by paralegals. 195 In New South Wales, paralegals can become licensed conveyancers through the Office of Fair Trading. 196 In the area of adjudication, paralegals working as New South Wales administrative officers of the lowest court (often called Chamber Magistrates) conduct Pre-Hearing Conferences of certain civil matters, such as claims for compensation for damage to motor vehicles from at-fault motorists. They also conduct coronial enquiries, where they seek to find out the manner and cause of death of a person, where the circumstances of the death are unknown or inexplicable. 197 Paralegals throughout Australia also work in community legal clinics, where they help out with Alternative Dispute Resolution, and the provision of advice when permitted by jurisdictions. 198 As well, where rules of court permit (in, for example, Small Claims Court) agents to attend and advocate for clients, paralegals are not specifically excluded from these proceedings. This is true for boards (e.g. the Veterans Review Board) and tribunals (e.g. Social Security Appeals Tribunals) as well Legal Services Commission of South Australia, Legal Advice online: Legal Aid Western Australia, Annual Report 2007/08 at pp. 10 and 64, online: North Territory legal Aid commission, Annual Report (December 2008) at 34, online: Australian Institute of Conveyancers, New south Wales Division, Becoming a Conveyancer, online: Cowley (2004) p Ibid at 91: Still, the line between the giving of advice versus information is not always clearly defined, as suggested by a quote in Cowley: Increasingly paralegals are being used to provide advice [in Australia]. In most states there is a statutory bar on non-lawyers charging a fee for the provision of legal advice. Accordingly this advice is called legal information which consists more of explaining legal options and processes without the additional recommendation of the rightness or the wrongness of a case or giving specific advice as to the best course of action (91). 199 Ibid at

330 Lastly, although paralegals in the United States are prohibited from representing clients in courts, which form part of the judicial branch (excluding pro se or self-representation), they are permitted to appear in front of some agencies that are part of the executive branch. 200 Circumstances exist wherein the delineation between authorised and unauthorised practice of law has been blurred because [t]he federal government has intervened in a few aspects of [UPL] to permit non-lawyer performance of legal services in some clearly ascertainable situations, including the right to represent clients before certain federal [and state] administrative agencies. 201 These agencies include the following: the Benefits Review Board, Supplemental Security Income, and the Federal Mine Safety & Health Review Commission. In conclusion, the jurisdictions canvassed above suggest that North American paralegals are generally more restricted in their practices than their peers elsewhere. It is also clear, however, from points raised earlier, that comparing the use of paralegals across jurisdictions is complicated by the fact that the definition of the practice of law or even of legal advice change according to jurisdiction. Paralegals in Canada and the United States work within defined parameters that, with few exceptions, do not permit them to practice law. The functions permitted to paralegals in Ontario are most in line with those in the international jurisdictions, where the provision of legal advice (in some form or another) by paralegals appears common enough, and where their increased intersection with the practice of law is permitted in varying degree by legislation. 200 Ibid at Ibid, p. 45. Note that Cowley attributes this quote to Quentin Johnstone but does not specify the article from which it originates. 309

331 Background/Context Paper 6 Lawyer Compensation I. Tariff In the legal context, tariffs refer to the rate at which a contract lawyer is paid. Legal Aid organizations normally pay lawyers directly instead of having lawyers try and collect from clients. In Alberta, tariffs also refer to the documents that describe fees, rates and guidelines to follow when billing clients of legal aid. 202 The legal duties of lawyers who work at/with legal aid organizations fall into several categories (e.g. duty counsel, staff counsel, roster counsel) and thus provide a variety of services. 203 Similarly, how lawyers are compensated differs, but payment largely falls into three areas: Salary: Salaried legal aid lawyers are those lawyers who are paid at a set rate, whether based on year of call, experience, matter type or complexity. These lawyers may or may not be affiliated with a staff office. For example, duty counsel is not usually affiliated with a staff office, but is on salary and is affiliated with the legal aid organization. On the other hand, staff counsel is affiliated with a particular part of the organization and is on salary, a situation akin to in-house counsel. In Alberta, the organization has elements of the above: duty counsel not affiliated with a staff office (i.e. general duty counsel at the courthouse), duty counsel affiliated with a staff office (i.e. counsel with YCDO or FLO), and staff counsel throughout the organization but affiliated with specific branches. Block Tendering: When contracting legal work to private practitioners outside a legal aid organization, there must be a process of determining which potential external providers will deliver the service. Block tendering is one solution where legal aid organizations invite external providers to bid on services that require counsel. This is widely used by the Legal Services Commission, the division responsible for the legal aid scheme in England and Wales. 202 Legal Aid Alberta, Client Guide (April 2009), pp. 10 and 12, online at (July 2009). 203 The current tariff rate for Legal Aid Alberta roster lawyers is $84. As of April 2002,, the national hourly rate was $74 and was a combination of hourly rates and block fess, but the tariff made no distinction by lawyers years of experience (see Canadian Centre for Justice Statistics, Legal Aid in Canada: Description of Operations, Catalogue no XIB (March 2001) at 12. There is no current comparison of legal aid rates. 310

332 Certificate: As noted above, tariff can refer to the billing document for clients of roster lawyers. The document includes the time counsel spent on a given file for telephone calls, s, meetings, court appearances, document preparation and research, the use of experts, courier fees, postage fees, and photocopying fees. Payment to roster lawyers can be fixed-fee, hourly, or outcome-dependent. o Fixed-fees refer to a system that has a specific monetary amount assigned to a service, a matter type, or a time limit. o Hourly rates tend to fall into two categories: billing at an hourly rate dependent upon the lawyer s experience or call to the bar, and billing at an hourly rate based on the category associated with the client s offence (where each category has an hourly rate of remuneration). o Outcome-dependent rates is billing that coincides with how the matter was resolved, for example by providing an incentive for early resolution. The rates mentioned are also referred to as tiered rates where lawyers are paid according to a particular tier (years of experience, hours of work, or complexity or type of matter). Although tiered rates are incremental and proportionate to the level of experience or work involved, there is usually an established maximum rate that a roster lawyer can bill. For example, Ontario has pass legislation that prevents a lawyer from being paid more than 2,350 hours of service in a given year unless specifically authorized by the president of Legal Aid Ontario. 204 At Legal Aid Alberta, a complex case review committee hears requests for discretionary increases to a billed rate where a particular matter requires more than the usual tariff. Another check and balance is the auditing of tariffs to ensure accurate billing by roster lawyers. Although most Canadian legal aid lawyers are on a salary or certificate basis, there are 2 forms of compensation that are used in other national legal aid systems: Legal Insurance: Legal insurance protects clients by providing them with the financial resources to enforce their legal rights. The primary advantage to legal insurance is that it 204 For more information on the legal aid tariff and billing in Ontario, see Legal Aid Ontario, Information for Lawyers Resources, online: 311

333 can be tailored to the client s needs, and be purchased before or after a legal situation arises. Canada currently has 5.5 million policies in place, with the majority of policy holders working in the auto industry. Self-Funding: A legal aid design that requires low-income earners above a specified level to pay a proportion of the costs associated with their matter. This group of clients is not able to retain private counsel, but is able to make some financial contribution unlike those clients who have lower incomes. The additional income helps legal aid fund those who are unable not pay. Hong Kong uses self-funding as a supplement to the main legal aid scheme. 205 There are advantages and disadvantages to each form of compensation. A common difficulty with the fixed / tiered rate is the inherent inefficiency that accompanies the work. The payment scheme is most beneficial to roster lawyers who lengthen the time it takes to complete their files, which works to the detriment of the legal aid client. Tariffs must sufficiently compensate roster lawyers and the billing process must be fairly simple so as not to provide disincentives to potential or existing roster lawyers; however, the quality of the legal services provided and the client s interests are equally important. II. Independent Prosecutors There is evidently a difference in compensation between what private practitioners earn while retained by private clients and what they earn while retained by legal aid because legal aid clients are entitled to reduced legal rates. The reason for the difference in compensation between legal aid roster criminal lawyers and independent prosecutors is less clear. Independent prosecutors are criminal lawyers that are retained by the government to provide legal services that would otherwise be provided by crown prosecutors absent a conflict or an appearance of bias. 206 Despite the provincial government being one of two main funders of Legal Aid Alberta, independent prosecutors retained by the government are not paid an analogous rate to legal aid 205 In Hong Kong, government counsel and legal aid counsel are paid the same rate for their services. In 2009, counsel was paid at $468/hour and senior counsel was paid $687/hour. This figure was reported by the Principal Assistant Secretary for Home Affairs and found in the Panel on Administration of Justice and Legal Services minutes for June 2009 concerning the criminal legal aid fee system (LC Paper No. CB(2)2341/08-09 at page 9). 206 Federal legislation allows the government to retain services of private sector lawyers (Director of Public Prosecutions Act, S.C. 2006, c. 9, s. 7). 312

334 roster lawyers. In 2007, Manitoba completed an inter-jurisdictional review of the appointment of independent counsel. 207 The following is a summary of the review: Many Canadian jurisdictions do not have written policies on independent prosecutors, and those jurisdictions that do have policies have not always made them readily accessible to the public Public Prosecution Service of Canada (the federal department responsible for providing prosecution-related legal advice to law enforcement agencies and for prosecuting offences under federal jurisdiction ) has no written policy and determines the appointment of an independent prosecutor on a case-by-case basis. In the past, counsel from other regional offices and other prosecution services have prosecuted to improve the independence of the PPSC. As indicated above, the federal government does have legislative authority to retain the services of private sector lawyers. British Columbia and Manitoba developed clear policy guidelines for the appointment of a special (independent) prosecutor when government conflicts exist. Alberta has no written policy, but the practice is described in the Manitoba report as follows: 208 i) if a police officer is investigated for an offence, the completed investigative file is sent to another city within Alberta. Typically, if an Edmonton police officer is investigated, the Calgary Crown office will get the file and vice versa. That office will review the file and make recommendations. If charges are laid, that office will prosecute it. Similar reciprocal arrangements are in place in the regional offices. Very occasionally, one of Alberta s Special Prosecutions crowns might be assigned to prosecute the case, but that is unusual. ii) if an Alberta Justice employee or judge is investigated or perhaps is a material witness in a case, the file may be sent to a prosecution service in another province. The decision is made by the Assistant Deputy Minister on a case-bycase basis. Factors considered may include the need for public confidence in the decision and the reluctance of staff prosecutors to comment on the credibility of someone they know or have worked with. 207 Ruth Krindle, Appointment of Independent Counsel-Review (Manitoba Department of Justice, 2007). The review excluded the jurisdictions of Prince Edward Island and Québec because no information was provided from these jurisdictions at the time the report was written. 208 Krindle, pp

335 Generally, the Ministry pays outside counsel fees in the range of $3.5 million to $4 million and the hourly range of fees varies from $90 to $250 an hour. 209 The rates are negotiated independently with the firm and depend upon the nature of the work and the seniority of counsel. 210 British Columbia has an extensive, written policy and a clear aim for transparency. The policy is available online at The policy is separated into statements concerning peace officers, crowns, ad hoc counsel, and special prosecutor. Ad hoc counsel are required to have demonstrated competence, high ethical standards, sound judgment, a good work ethic, previous ad hoc duty experience, and are expected to follow branch policies relevant. Special prosecutors are appointed by the Assistant Deputy Attorney General for matters concerning re cabinet ministers, senior public officials, Ministry officials, senior police officers, and persons in close proximity to any of these government employees where there is a real/perceived improper influence in prosecutorial decision-making. There is an approval process for the appointment, and any direction given to the special prosecutor must be in writing and published in the Gazette. 211 Manitoba is another jurisdiction that has a written policy and aims for transparency. The policy (as of January 2005) is available online at The test for hiring an independent prosecutor is when a reasonable person perceives that the accused may receive differential treatment because of their relationship with the ministry of justice. In other words, where there are inappropriate public perceptions and 209 Alberta, Legislative Assembly, Standing Committee on Public Safety and Services, Department of Justice and Attorney General Consideration of Main Estimates in Official Reports of Debates (Hansard), No (22 April 2009) at PS-109 and PS-110 [Committee Report]. Discussions with Alberta Justice revealed that within the above range the hourly rate for independent prosecutors is currently $90 to $120 per hour based on experience, with firm caps on total billings. 210 Committee Report, ibid. 211 Interestingly the publication requirement is part of provincial legislation that specifically allows the Assistant Deputy Attorney General of the Criminal Justice Branch to hire special prosecutors (Crown Counsel Act, R.S.B.C. 1996, c. 87, s. 7). The Victims of Crime Act, R.S.B.C. 1996, c. 478, s. 12, prevents the ombudsman from investigating the appropriateness of a decision by a special prosecutor concerning the prosecution of an offence. The Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, Schedule 1, includes special prosecutor in the definition of service provider. There is no other Canadian legislation specifically referring to independent or special prosecutors. Despite the legislation and policies in place, in the last few years there has been a significant difference in the hourly government contract rate, ranging from $175 to $385 (see for example, Andrew MacLeod Company Caught in Ontario Scandal Also Had BC Contracts The Tyee (10 June 2009). 314

336 issues of public confidence, prosecution by independent counsel is required. In addition, policy directives exist on when the need for independent counsel would arise, alternative approaches to appointment and criteria for selection. Decisions are made by the Director of Regional Prosecutions and Education. The terms of reference are in writing and available to the public upon request. Independent Counsel is guided by the prosecution policies of general application in the Department of Justice. Lastly, decisions made by independent counsel are final and binding; any over-ruling is made by the Minister, is public, and leaves the Minister accountable. New Brunswick crowns will not prosecute an officer in the same area. Newfoundland and Labrador has a succinct written policy (as of October 2005), but the policy simply states that Prosecutions of police officers, lawyers and court officials are to be brought to the attention of the DPP and a decision will be made on the assignment of counsel. Nova Scotia has a policy allowing the appointment of outside counsel for some prosecution against lawyers and conflict situations Ontario has no formal written policy. 212 Normally the Justice Prosecutions Branch of the Crown Law Criminal Office prosecutes cases against police officers, crowns, judges, lawyers, and clerks, but sometimes prosecutions are local from neighbouring Ontario jurisdictions. It is rare to hire out-of-ministry prosecutors, but possible after considering factors based on appearance of justice criteria, including how well-known the person is. Saskatchewan has a brief written policy and a practice directive concerning peace officers. An issues arising are referred to Head Office, which is a group of 6 senior public prosecution lawyers along with the director and executive director. The group does all the appellate work, provides opinions on police and conflict matters and high-risk offenders, and provides education updates for the crowns, as well as completing policy work from a prosecutions perspective. The director determines charges against crown prosecutors and 212 The Ontario Court of Appeal also had the opportunity to consider the rate of compensation for independent prosecutors in R. v. Figueroa, (2003) 64 O.R. (3d) 321 (C.A.), where it was determined that the court and not the Crown should set the fees for appointed special prosecutors in contempt proceedings arising from criminal prosecution, and that the rate should not be lower than the usual rate of $250 if both Crown and the special prosecutor are required to perform equally important functions. The Ontario case has not been cited by the Alberta courts. 315

337 typically a prosecutor from another Saskatchewan regional office is used as the independent counsel. III. Analysis The disparity through Canada is not confined to the rate of compensation for contracted legal service providers; there is also inconsistency in legal aid coverage across the country as well as large variance in the hourly rate of private practitioners. 213 For example, the national average cost for an uncontested divorce is $1,620 and the rate seems to decrease for larger firms. The fees charged in western Canada tend to be higher than those in eastern Canada; the Albertan average cost for an uncontested divorce is $2,560 and the second highest in the country of those provinces who took part in the survey. Although general hourly rates charged by lawyers called to the bar in 2008 were lower than their counterparts who were admitted in 1998, the rate charged by lawyers admitted in 2003 in Alberta and British Columbia rose before decreasing by More research into the underlying reasons causing the difference in fees between eastern and western Canada would be helpful. It would be particularly useful to know the cause is in part due to the differences in the court process (affecting the clients costs) or the cost of living (affecting the lawyers costs). As exemplified above, there are several methods of compensating lawyers and each method depends on the type of service the lawyer is providing. While there is some flexibility, balancing a transparent compensation method with quality of service remains problematic. Where the compensation method is directly proportional to the length of file or the amount of litigation, it encourages prolonged matters and court involvement because this leads to more billing and increases fees on legal aid files. Moreover, inevitably more certificates are generated to increase the time allotted to a particular file or even to resolve the matter using more legal resources. Similarly, if lawyer compensation is based on process, then less focus is afforded to the suitability of the approach and the client s needs. In the same vein, the court s resources are needlessly used. 213 Kirsten McMahon, The Going Rate Canadian Lawyer Legal Fees Survey (July 2008), online: < accessed on August 27,

338 Compensation methods do not normally recognize the labour-intensive work necessary for more complex cases and often legal aid lawyers (whether staff or roster) are not sufficiently compensated for their time and expertise. The constant complications in dealing with legal aid files coupled with the dissatisfaction of compensation impacts the efficiency of the legal aid system, client needs and lawyers willingness to engage with the legal aid process. 214 The working relationship between legal aid organizations and roster lawyers is exacerbated by the negative perception held by the public and the legal profession. Compensation then becomes even more important to attract quality staff and roster lawyers. Despite the continued increase in the need for legal aid services, higher hourly rates are not a complete solution, but it is a start. 215 On the one hand, legal aid rates need to go up to prevent lawyers from being forced to stop helping legal aid clients because the rates are too far below market rates. 216 On the other hand, rates cannot increase to the point where clients are being turned away because the adjusted financial eligibility guidelines and recoveries process are overly restrictive. 217 Clients must be able to afford the legal services just as lawyers cannot be crippled by providing such services. 218 Increased funding will help alleviate the inadequate compensation; however, additional changes can be made to create a more sustainable system. The following are some examples: establishing average costs for basic legal work (e.g. fees for initial consultations of a legal matter that provides an overview of the issues and potential options for resolution) expanding the type of civil legal work (e.g. simple incorporation or IP registration, basic wills, personal directives and powers of attorneys) 214 A growing number of Ontario lawyers have decided to boycott legal aid primarily because of inadequate compensation. See for example, Tracey Tyler, Legal aid boycott hits native communities The Star (18 June 2009), online: < accessed on June 19, Ontario Criminal Lawyers Association, Submissions of the Criminal lawyers Association to the Legal Aid Review (2007), online: < accessed August 27, Janet Leiper Justice for All: A Growing Imbalance Legal Aid Ontario Newsroom (8 June 2006), online: < accessed August 27, The main thrust of the article is that poverty cannot be a barrier to justice and the failure to recognize the importance of legal aid services. The article also touches on the 3 major pressures facing Legal Aid Ontario: increased demand for services, more people being turned away because of overly restrictive financial eligibility criteria and legal aid rates below market rates forcing lawyers to stop helping legal aid clients. These pressures are equally applicable to Legal Aid Alberta. 217 Ibid. 218 Ibid. 317

339 establishing tariff objectives that allow for flexible guidelines and recognize the variance in fee structure in private practice e.g. criminal lawyers charge block fees, civil lawyers charge hourly fees e.g. complicated legal areas require increased coverage by LAA to equalize access to justice producing an effective mentoring program that rewards more experienced lawyers and guides more junior lawyers attracting quality lawyers by advertising in law schools and increasing hourly rate to make some legal aid work profitable (or in the least so lawyers are not operating at a loss) creating competitive rates for roster lawyers and minimizing the discrepancy between roster lawyers and provincial independent prosecutors restructuring the billing arrangement so that compensation does not encourage inefficiency reviewing compensation rate and financial eligibility guidelines (FEGs) regularly for changes in the market (e.g. high unemployment), in the court process (e.g. minimum costs for fees and disbursements), and in inflation providing appropriate services to meet clients needs (tailoring services to meet client needs and the use of unbundled legal services) improving the recoveries process by increasing the client pool to include some middle income persons and charging some fees that help to pay for those falling within FEGs improving the substantive eligibility requirements e.g. first-time criminal charges are not currently covered by Legal Aid Alberta, but should be because it is a turning point when the accused may receive a criminal record and determines the course of the person s life in the future e.g. compensation rate could be adjusted accordingly if roster lawyers interested in helping otherwise matters can be handled by staff lawyers Legal Aid is supposed to increase access to justice by helping clients obtain a lawyer and legal assistance. Unfortunately, legal aid rates are becoming a disincentive for professionals to partake in public-interest work and a hindrance for members of the public who are in need of legal aid services. The solution is two-fold: the rate of compensation and the quality of legal aid 318

340 services. There is no doubt that more can be accomplished with current resources. For example, by utilizing staff differently, the excess funds could be redirected to help pay increased compensation to roster lawyers. In order to do so, it is imperative that administrative inefficiencies be eliminated and that the legal aid organizations become transparent and accountable to clients and staff. The incentive is to provide equal treatment to low-income clients as that provided to others. Poverty should not continue to be a barrier to justice. 319

341 Background/Context Paper 7 Quality As humanity transforms itself into increasingly litigious societies, access to justice remains a pressing concern. Legal Aid organizations worldwide are pondering ways to ensure that the quality of aid provided remains consistently high as demand grows almost exponentially. What standards should be expected and how are providers encouraged to maintain these standards? This paper will address these issues by drawing on examples of practices implemented by various Legal Aid plans across the globe. Specifically, the best practices of the United Kingdom, New Zealand, Ireland, South Africa, and various states in Australia will be closely examined to see how they maintain quality assurance. The United Kingdom When the administration of Legal Aid was transferred from the Legal Aid Board to the Legal Services Commission in 1999, the United Kingdom s Justice Minister instructed the Board to not only concern itself with existing targets and indicators of performance, but also to look at legal aid practice itself from the perspective of its performance. 219 The board responded with several initiatives. The first initiative was to develop preferred suppliers - concept borrowed from industry. Rather than obtaining services from someone new each time, working with a particular group(s) at each instance would cultivate a better relationship, thus beneficial to the setting and maintaining of standards. The second initiative was to set down guidelines on how to bring up the standards. The Legal Services Commission (LSC) published Active Defence, a guide that emphasizes proactive versus reactive criminal defence, and Criminal Defence: A Good Practice Guide in the Criminal Courts. In essence, the books advise on how to properly conduct a file: keep proper records, note the physical and mental state of clients, the general conduct of the police, what information is given by client, representations made by the lawyer and reasons for making those representations, advice given and reason, etc. 219 Roger Smith, Quality and Criminal Legal Aid in England and Wales in Justice (November 21, 2003) at p. 1, online: accessed on August 20,

342 The third initiative was to introduce accreditation. The scheme involves the close assessment of a lawyer to see if their work is of a certain standard at either of two stages. Stage one concerns those appearing at the police station or in the lower magistrate courts. Each lawyer who wishes to become accredited at Stage One must present a portfolio of five cases in which the candidate has personally advised and assisted a client at the police station when no other solicitor or representative was present. 220 The portfolio is then assessed by an approved assessor. As well, the candidate must pass a critical incidents test where a video of an interrogation is played and said lawyer must indicate how and why he or she would intervene. For Stage Two, a similar accreditation process exists, but it requires the review of twenty cases followed by an interview and an advocacy assessment. The fourth project was the implementation of various standards for firms and individuals known as the Quality Assurance for Advocates Pilot in For example, the award bestowed upon worthy firms is known as the Specialist Quality Mark. This recognition is bestowed upon those whose practices meet certain standards set by the Legal Services Commission and implies that the office demonstrates both quality and efficiency. The requirements are that the firm shows effective business plans, seamless service, financial control, good people management, quality control measures (file review, etc.), and is able to meet client needs. In order to receive this mark, the firm is assessed by a commission sanctioned official. The Legal Services Commission, as had the Legal Aid Board, has a statutory right to inspect legal aid files which overrides professional privilege. The auditor selects a small random sample of files and gives them a score. The firm passes the audit only if every file scores above the pass mark. A larger sample may be requested if some files pass and others fail. 221 The Commission is also planning on ways to evaluate prospective firms in an off-guard manner by sending staff incognito into firms to explore how they are treated. 222 Due to the implementation of standards, the number of solicitor firms involved with Legal Aid is much 220 Smith at Smith at Smith at

343 lower; few want to undergo the rigorous process of certification. 223 Overall, the Commission feels that peer review has been the best method to provide quality assurance. Quality marks also exist in a general category to reward those providing general help with cases, a quality mark for the bar, and one for family mediation. New Zealand and Ireland Following the United Kingdom s example, New Zealand and Ireland have also taken strides to ensure quality in their delivery of services. In New Zealand, better and more extensive training for duty counsel, as well as peer review of files have been put into practice. An experienced practitioner reviews files of each lawyer according to certain criteria. 224 In 2007/2008, random sampling was also initiated. The audits were conducted by five experienced lawyers and then where appropriate, matters would be drawn to that particular lawyer s attention. 225 As of 2007, in Ireland, in-house solicitors have instigated a systematic file review procedure. 226 Like the United Kingdom, New Zealand and Ireland have arrived at the consensus that file review is a relatively low-cost investment for big qualitative returns. South Africa South Africa has also put into action a number of measures to achieve quality control that involves aspects of training, monitoring and communication. Training is done in a prescribed manner and lawyers are provided with practitioner checklists as a best practice guide. With regards to monitoring, supervisory staff attends both at the offices and the courtroom to ensure that the lawyers skill sets are adequate. Consultation notes are reviewed by the supervisors and regional audit teams too. Each lawyer is independently assessed, taking into consideration the feedback provided by judicial offices who have dealt with that lawyer (judges and magistrates, etc.). Communication not only involves speaking with the lawyers about their files, but also speaking with clients to learn more about their needs and gaps in the system. When it was 223 Smith at 9: As of 31 st March 2003, there were 2,900 offices supplying services for the Criminal Defence Service. 224 Legal Services Agency, Annual Report 2007/08 (New Zealand, 2008) at 3 and New Zealand Annual Report 2008 at Legal Aid Board, Annual Report 2007 (Ireland, 2007) at

344 discovered that many felt their files were unreasonably delayed, time benchmarks were put into place. South Africa has clearly undertaken many steps to be proactive and responsive to client concerns. 227 Australia In Australia, when it comes to delivering quality services, the focus has been on communication with the client. Guidelines for client interactions were made available to lawyers detailing information like: proper introduction of the lawyer s role to the client, acting in a courteous manner, when to use an interpreter, culturally appropriate practices to be aware of, using plain language, and ensuring confidentiality. For example, sensitivity training towards Aboriginal families has also increased. As well, preferred suppliers and in house practitioner files are reviewed to ensure that they meet file management standards. Finally, Australia has also tried to increase the types and number of services provided to clients on an annual basis. Canada In an effort to raise the bar on quality, Legal Aid Ontario s Quality Service Office (QSO) implemented eight sets of panel standards between 2003 and As well, QSO introduced a mentoring program in the fall of 2006, pairing young lawyers with seasoned practitioners. A Practical Tips guide was also developed and provided. These pamphlets shared best practices by highly experienced practitioners in refugee law and consent and are continuing in other areas of law. 228 No matter the type of law, lawyers must also submit an annual self-report attesting to their on-going compliance with the required standards. 229 Also in , the Ontario Quality Service Office developed the Common measurements tool to collect data on the satisfaction levels of certificate clients, clinic clients, lawyers, duty counsel and clinics. 230 Ontario s Criminal law office also engages in peer review; staff counsels files 227 For details on changes implemented to South Africa s Legal Aid Board, see Legal Aid Board, Annual Report 2007/2008 (South Africa, 2008). 228 Legal Aid Ontario, Quality Service Office, The Quality Report , (September 2007) [Quality Report]. 229 Quality Report, at Quality Report, at

345 are checked by a senior private practitioner who has been trained by LAO with regards to the criteria each file is marked on. Drawbacks Alan Paterson and Avrom Sherr do point out that all approaches to review have their difficulties. 231 Direct observation might appear the simplest and most straightforward, but it presents a range of practical and logistical problems. Court lawyers frequently experience continuations or postponements of hearings or trials. If a peer reviewer has been assigned to review that lawyer on a particular day, there may be nothing to assess because each of his or her cases has been postponed. If the observation is of a lawyer/client interview then there may be problems of intrusiveness or client consent. Indirect observation may be impractical since all parties, including the state may not agree to video or audio-taping of the courts or the lawyer s office. 232 With regards to observation by officers of the court, Paterson and Sherr noted: Judges, perhaps the most obvious third parties, have shown little enthusiasm to date for systemic involvement in the assessment of individual court lawyers. Perhaps this is because they fear that it might destabilize the delicate balance of understandings between the bench and the bar which they consider to be important for the smooth operation of the courtroom. Or perhaps they are aware that making judgments of this nature is fraught with difficulties when they need to adjudicate also on clients and the cases before them. 233 Their research indicated that most often, regardless of jurisdiction, the following aspects of performance were routinely marked: accuracy, appropriateness and timeliness of advice; client care (taking adequate instructions and providing initial information 231 Alan Paterson and Avrom Sherr. Peer Review and Quality Assurance: The Emergence of Peer Review in the Legal Profession, (Paper presented at the ILAG conference, Antwerp, 2007), online: (accessed on August 24, 2009). 232 Paterson and Sherr, Paterson and Sherr,

346 concerning future actions including client meetings); adequate, appropriate and timely fact gathering; adherence to the requirements of professional responsibility; appropriate strategy formation and execution; and adequate staff supervision and case management; and recording of all of the above. 234 Ultimately, it was concluded that peer review is the best option to ensure quality: The experience of the peer review studies in England and Scotland done to date suggests that peer review based on files, an agreed set of criteria and trained reviewers can deliver an effective quality assurance programme in the UK Paterson and Sherr, Paterson and Sherr,

347 Background/Context Paper 8 Efficiency There is a longing in each of us to invest in things that matter. Peter Block A primary goal of businesses is to remain efficient, and therefore, cost effective. Studies have shown that there are several things which may impede efficiency, both in terms of time and productivity: worker motivation, management communication, technology, and the volume of administrative tasks. With so many factors impacting efficiency, at first glance it may seem overwhelming, but fortunately, all of the above is within a business control. Worker Motivation Completion of a whole and identifiable piece of work... It is more meaningful to assemble a complete toaster than to solder electrical connections on toaster after toaster. J. Richard Hackman and Greg Oldman Worker motivation has an impact on efficiency. When people are motivated, they work harder, faster, and longer. Unmotivated workers, however, tend to do the bare minimum and leave the minute the clock strikes the end of the work day. How can workers be kept motivated? Studies show it is important to recognize that intrinsic rewards are just as important extrinsic ones when it comes to worker motivation. Most people are quite familiar with the extrinsic rewards such as bonuses, salary raises, extra vacation time, but are unfamiliar with non-tangible motivators. Kenneth Thomas refers to a well-known, rational model of decision-making, describing it as going beyond rational economic assumptions. Herb Simon, the Nobel prize-winning economist, described the rational model of decision making as follows. When people make choices, they first identify their alternatives. They then consider the likely outcomes of each alternative and the desirability ( utility ) of those outcomes. Finally, they choose the alternative that 326

348 would leave to the most desirable outcome. In simpler terms, the assumption is that people choose behaviours based on their anticipated consequences. 236 However, Thomas asks his readers to consider the following points about intrinsic motivations that go beyond rational-economic thinking: a) people care about more than money and selfinterest at work, b) intrinsic motivation involves rewards you are getting right now, c) intrinsic rewards are about emotions, d) doing the right thing makes people feel good. The next question is how do we address these intrinsic motivators? Thomas reminds us not to forget about the purpose behind work, which has been pushed into the background since the industrial revolution, and is only now starting to emerge again. Thomas proposes that the theory behind Let s start with centralized, hierarchical control. Because uncertainties were relatively manageable, managers could take on the responsibility for handling them... Managers essentially took over the decision making involved in handling uncertainties in order to achieve the task purpose. They became the keepers of the purpose.... Worker judgment itself was seen as a source of uncertainty that needed to be controlled, so these rules and procedures were also used to systematically eliminate choice from jobs. 237 In today s world, research shows that a job without purpose is essentially meaningless. People s morale suffer in these situations, it deteriorates without purpose and so in such jobs, workers view the work week as a kind of necessary evil (or devil s bargain) forty to sixty hours a week of meaningless labour in exchange for economic survival. 238 Thomas suggests that there are four intrinsic rewards that improve a worker s productivity and morale: a sense of meaningfulness, a sense of choice, a sense of competence, and a sense of progress. A sense of meaningfulness is the opportunity you feel to pursue a worthy task purpose. The feeling of meaningfulness is the feeling that you are on a path that is worth your time and energy that you are on 236 Thomas, Kenneth. Intrinsic Motivation at Work: Building Energy & Commitment. San Francisco: Berrett- Koehler Publishers, Inc., Thomas, Thomas,

349 a valuable mission, that your purpose matters in the larger scheme of things. A sense of choice is the opportunity you feel to select task activities that make sense to you and to perform them in ways that seem appropriate. The feeling of choice is the feeling of being fee to choose of being able to use your own judgment and act out of your own understanding of the task. A sense of competence is the accomplishment you feel in skillfully performing task activities you have chosen. The feeling of competence involves the sense that you are doing good, high-quality work on a task. A sense of progress is the accomplishment you feel in achieving the task purpose. The feeling of progress involves the sense that the task is moving forward, that your activities are really accomplishing something. 239 It is the manager s job then to promote these rewards and to ensure that each employee s experience in the workplace is a positive one. To instill meaningfulness, a manager must clearly identify passions and make certain that the work environment is non-cynical, as well as provide an exciting vision with regards to relevant tasks. A sense of choice allows employers to feel and believe that their views and insights matter. Without choice, people feel constrained and pushed by other people and forces that are driving the train. 240 Managers should delegate some authority in a clear and informative manner, trusting the worker to do their best, and also allowing them room to make mistakes. Allowing workers the right to experiment, adapt, and be innovative encourages them to self-manage and take pride in their work. To foster this growth, however, a manager must actively support team members rights to make intelligent 239 Thomas, Thomas,

350 mistakes. 241 Active support will also build self-esteem and competence in the team. Thomas claims that the key is for leaders to provide positive feedback, skill recognition, high (though non-comparative) standards, challenges, and the opportunity to learn. Progress is also a great motivator, as no one likes to feel as though they are in a rut. A collaborative climate that celebrates milestones, provides access to clients, and recognizes improvement is fundamental to a sense of progress. This is not to say that extrinsic needs do not play a factor. Undoubtedly, a good salary and benefit package is a large part of retention. When extrinsic needs have been met; however, it is intrinsic needs that push the employee to give it a little extra. When workers are motivated intrinsically, they become self-managers. Mangers no longer need to micromanage out of fear of low quality output, and workers will stop seeking other jobs, which in turn will free up both parties time for projects. Work will be done faster and at a higher level. Turnover rates will drastically decline. In conclusion, with the proper intrinsic motivators in place, the overall health of the business and its employees will flourish. Management Communication You do not lead by hitting people over the head that s assault, not leadership. Dwight D. Eisenhower. While the principles behind intrinsic rewards are sound, it is necessary to keep in perspective that people are individualistic and communicate differently. As Caitlin Crawshaw noted in The Edmonton Journal: Your personality type affects everything from how you organize your desk to whether you volunteer to speak at departmental meetings. 242 By extension, understanding how peers perceive the world and make decisions can also help depersonalize any conflicts or issues that have arisen, helping to smooth over trouble areas. 243 Barbara Moses article When someone you work with just doesn t get it also emphasizes communication, especially in difficult situations. In her article about dealing with those 241 Thomas, Crawshaw, Caitlin Put your personality to work for you The Edmonton Journal (August 29, 2009) section K, p Crawshaw, ibid. 329

351 poisoning the workplace, she advises: Be mindful of how you express yourself when giving feedback. 244 Technology Come let us reason together. - Anonymous One of the benefits of living in today s fast-paced world is that technology helps us keep pace with everyday life. Nathan Stewart, Vice President of DSS, is responsible for customer relations and frequently finds himself in the field providing IT services to clients. He soon realized that things were not operating as efficiently as they should be. He needed remote access to files to be informed about each client s system and also found that he was spending at least 8 hours a month on transcribing information into the accounting program. With the help of Window s Mobile, Nathan can now access files wherever he is and has streamlined the accounting process: I enter my time into the calendar feature of Outlook, then simply copy and paste this data into our accounting application...i m saving the full day each month. 245 The computer field is not the only one benefitting from innovative technologies. The healthcare field has also reported positive results, although at the same time indicating that further implementation would increase benefits. Although many technologies are available to enhance nursing productivity and eliminate waste and redundancy, they are not applied consistently across or even within health care organizations...deficiencies of note include a general lack of automation, duplication of effort, a dependence on manual documentation, minimal use of decision support capability, and lack of timely access to data and information at the point of care. 246 With the implementation of copy-forward file capability, for example, it could mean not only the reduction of work for nurses, but also the elimination of a pesky routine. A major irritant of 244 Moses, Barbara When someone you work with just doesn t get it Globe and Mail (August 19, 2009) B Microsoft IT Firm Trims Administrative Time, Boosts Efficiency with Synchronized Mobile Solution at (accessed on August 31, 2009). 246 Sensmeier, Joyce, Robin Raiford, Sheryle Taylor, et al. Improved Operation Efficiency through Elimination of Waste and Redundancy, Nursing Outlook, 2003 volume 51, Number 3 at S

352 patients and wasted time for nurses are the questions asked by multiple clinicians during one episode of care. 247 With an automated version of charting where nurses have the option to update the charts as events progress, much of the repetitive questioning can be reduced. Volume of Administrative Tasks If you don t know what the end result is supposed to look like, you can t get there. Vince Lombardi Reducing administrative tasks is another way to increase efficiency. Streamlining administrative protocols frees up time to attend to other work. Medical News Today reported on May 15, 2009 that overall the costs of [physicians] interacting with insurance plans is $31 billion annually and 6.9 percent of all U.S. expenditures for physician and clinician services. 248 The article further elaborates: The survey of physician practices across the U.S. inquired about time spent by all practice staff on specific activities, including prior authorization, pharmaceutical formularies, claims and billing, credentialing, contracting, and collecting and reporting quality data. This national survey is the first to ask directly about time spent by non-physician staff on interaction with health plans, and the first to provide data by the type of interaction, type of staff, specialty, and practice size. On average, physicians spent three hours a week or nearly three weeks on these activities while nursing staff spent more than 23 weeks per physician per year, and clerical staff spent 44 weeks per physician per year interacting with health plans. More than three in four respondents said the costs of interacting with health plans have increased over the past two years. In the findings above, some workers are spending more than half the year dealing with administrative duties alone. Indisputably, things need to change. 247 Sensmeier et al, S Medical News Today Physicians Spend the Equivalent of Nearly Three Work Weeks on Health Plan Interactions May 15, 2009 at (accessed on August 31, 2009). The site does not give an author, but cites Mary Mahon, Commonwealth Fund as a source. 331

353 In 2002, Prairie Research Associates (PRA) carried out an evaluation of Legal Aid Ontario s (LAO) Family Expanded Duty Counsel (EDC) Pilot Project. The evaluation had three objectives: to compare the cost, time effectiveness, and quality among the three EDC offices in the cities of Oshawa, London, and Hamilton. They found that the Hamilton model was operating at closest to full capacity with respect to the number of clients assisted per day: 7.3 compared to 4.4 in London and 4.6 in Oshawa. 249 Duty counsel in Hamilton are unique in spending a majority of their time on client-related tasks; at the other two offices, the opposite is true. Having more than one staff duty counsel seems to create inefficiencies in the use of staff time, at least given the volume of clients at the pilot project sites; staff in London and Oshawa devote more than 60 percent of their time to administrative functions. 250 [emphasis added] On the other hand, London retains almost 60 percent of all client files, whereas Hamilton and Oshawa refer the majority of their clients to Legal Aid for a certificate. 251 Some Final Thoughts Clearly, many factors play a part in determining the efficiency of an organization. By addressing worker motivation, management communication, technology, and the volume of administrative tasks, companies could dramatically affect their output. However, it is imperative to remember that while efficiency is important, it should not and cannot become a cult unto itself. We must not sacrifice quality for quantity. Janice Gross Stein took a look at efficiency and accountability in the Post-industrial age and found that while the former was lauded, the latter has been all but forgotten. Efficiency, or cost-effectiveness, has become an end in itself, a value often more important than others. But elevating efficiency, turning it into an end, misuses language, and this has profound consequences for the way we as citizens conceive 249 PRA Inc. Evaluation of the Family Law Expanded Duty Counsel Pilot Projects: Final Report October 3, 2002 at iv. 250 PRA, iii iv. 251 PRA, iii iv. 332

354 of public life. When we define efficiency as an end, divorced from its larger purpose, it becomes nothing less than a cult. 252 She reminds that we cannot forget the purpose behind the tasks that we are engaging in, and as a matter of fact, perhaps it is purpose that should be prioritized. The government of Ontario recently released a report by a task force that was established to evaluate the administrative operations of the province s postsecondary institutions. The report concluded that universities in the province are those in Canada in who spend the least on administration as a proportion of their operating expenses. Universities in Ontario, the report concluded, were generally efficient. Efficient at what, I wondered. The report gave no data on the quality of education these universities provided. It did not ask how well education was being delivered to students in comparison with the costs of administration, so that students and citizens in Ontario could make some determination of costeffectiveness. It did not ask the questions, Efficient at what? For whom? Rather, it valued low central administration costs as an end in itself and defined this as efficiency. 253 Consequently, while there is value in being efficient, highly productive, quick, etc., companies must not lose sight of what should be the main goal: better delivery of quality services. 252 Stein, Janet Gross. The Cult of Efficiency. Toronto: House of Anansi Press, 2001 at Stein, p

355 Background/Context Paper 9 Alberta s Courts and Tribunals Alberta s legal system encompasses courts, tribunals and alternative dispute resolution mechanisms. Alberta has three levels of courts: the Provincial Courts with Criminal, Civil, Family and Youth Divisions; the Court of Queen s Bench; and the Court of Appeal. In addition, certain types of legal matters must go to one of the Federal Courts. The courts are set out in the following diagram: To Appeal Supreme Court of Canada To Appeal To Appeal Court of Appeal of Alberta Federal Court of Appeal Court Martial Appeal Court To Appeal Judicial Dispute Resolution (JDR) Tax Court of Canada Federal Court of Canada Military Courts CourtofQueen's Bench of Alberta Federal Administrative Tribunals Criminal To Appeal Civil Family & Youth - hears matters re federal law, immigration, and public service employment Provincial Court Of Alberta Criminal Civil Family Traffic Provincial Administrative Tribunals Most legal matters experienced by low-income Albertans are resolved in the Provincial Courts or at administrative tribunals, although some are also brought to the Court of Queen s 334

356 Bench. The types of matters heard by the various Provincial Courts and the court structure is set out below: Supreme Court of Canada Court of Appeal ** Traffic Regulatory Docket and Trials (271, 272, 273) Municipal and Bylaw (273) Court of Queen's Bench ** Civil *Mediation Small Claims Court ** Provincial Court ** Family *Mediation Child Welfare Docket Interjurisdictional Support Orders (ISO) * denotes courts service ** Criminal Bail Hearing Office Docket Out of Custody (264) Docket in custody (265) ** main courts include applicable services not otherwise specified Domestic Violence (265) Drug Treatment (265) Federal Drug (267) Summary Disposition (268) Youth Docket (444) The types of matters heard by the Court of Queen s Bench and the court structure is set out below: 335

357 Supreme Court of Canada Court of Appeal Dependent Adult Divorce ** Family Includes AM & PM Chambers ** Court of Queen's Bench ** Civil * Mediation * Judicial Dispute Resolution (JDR) Truancy Surrogacy Bankrupty Includes Master & Justice Chambers sitting in AM & PM Docket (criminal ** Criminal appearance court & Bail PC appeals) Arraignments Emergency Protection Order (EPO) Review Hearings Provincial Court * denotes courts service ** main courts include applicable services not otherwise specified Administrative tribunals are not part of the Ministry of Justice, nor are they administered through any one government department. As a result, each has its own structure and process. Some of the main tribunals with which low-income Albertans may be involved are set out in the following diagram: 336

358 Canada Pension Plan (CPP) Citizens Appeal Panel (CAP Employment) Employment Insurance (EI) Immigration and Refugee Board (IRB) Administrative Tribunals Human Rights Commission Residential Tenancy Dispute Resolution Service (RTDRS) Special Needs Tribunal (Alberta School Act) Workers Compensation Board (WCB) Prison Tribunals (Federal) 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 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 since the 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 Legal Aid Alberta, 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 337

359 of lawyers although the place of paralegals in Alberta legal services provision has yet to be fully explored. 338