About this Workbook This workbook is a consultation guide for partners in the justice system who deliver legal services to Albertans (judiciary, private bar, court services, etc) who are interested in providing input to Legal Aid Alberta (LAA), the Law Society of Alberta and Alberta Justice on changes to the Legal Aid Alberta Plan. Information and questions in this workbook are designed to help participants focus their thoughts and responses. Individuals and organizations who wish to submit a written response to the questions are asked to forward comments to the Legal Aid Alberta Review Project Team. E-mail: review@legalaid.ab.ca Mail: Attention: Jennifer Fowler, 400 Revillion Building, 10320-102 Ave, Edmonton Alberta, T5J 4A1 This workbook is on the web at www.legalaid.ab.ca Click on Legal Aid Alberta Review. If you have questions about the workbook or wish a hard copy sent to you, contact: Legal Aid Alberta at 780-427-8742 E-mail us at review@legalaid.ab.ca
Table of Contents Introduction: Review of Legal Aid Plan........................................2 Environmental Scan.......................................................3 How Legal Aid Works in Alberta..............................................4 Options for Discussion LEGAL NEEDS ISSUES................................................7 WHO SHOULD BE ELIGIBLE FOR LAA AND HOW DOES LAA DETERMINE ELIGIBILITY...8 WHAT LEGAL SERVICES SHOULD BE PROVIDED............................10 HOW SHOULD LEGAL AID SERVICES BE DELIVERED?........................12 CHANGES TO LAA BUSINESS PRACTICES.................................19 LAWYER COMPENSATION ISSUES......................................22 OTHER SOURCES OF REVENUE OR SUPPORT IN KIND FOR LAA.................24 1
Review of Legal Aid Plan 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) is currently reviewing the legal aid plan. A Steering Committee consisting of representatives from Alberta Justice, the Law Society and LAA is overseeing the review. The review is examining: The legal needs of Albertans of limited means How those needs should be prioritized Who LAA s clients should be What services LAA should provide How legal aid should be provided The level of compensation LAA should pay to lawyers who do legal aid work and are not on LAA s staff Other sources of revenue or support in kind available to LAA 2 The goal of the review is to find ways to change and improve the legal aid plan for the benefit of Albertans in need while ensuring LAA is sustainable. A report with recommendations will be provided to the LAA Board and the Minister of Alberta Justice and Attorney General for their consideration and approval. Stakeholder consultation is essential to the success of this review. We appreciate your input and perspectives regarding the legal aid system in Alberta. These will be taken into consideration as we develop the final report. Sincerely, Jacqueline Schaffter, President and CEO, Legal Aid Alberta
Environmental Scan There are six major factors that are influencing decisions about the future of legal aid plan. 1. Alberta is a growing province with a volatile economy. 2. The pressure on government funding is significant. 3. Other revenue sources for LAA, such as grant from Alberta Law Foundation, are decreasing. From 2008/09 to 2010/11 the ALF grant amount is forecast to decrease from $14.9M to $0.5M ( 96.6 % ). 4. Changes in the legal system increase the demand for legal aid services. 5. There are a shrinking number of lawyers available to do legal aid work particularly in family law. 6. Any changes to the legal aid plan impacts who its clients are and what services it provides, which impacts the overall Alberta justice system. 3
How Legal Aid Works in Alberta Legal Aid Alberta exists to provide cost effective legal services for Albertans in need. Last year Legal Aid Alberta (LAA) assisted over 190,000 Albertans. In addition to striving to be a leader in providing access to justice to those in need, LAA has two key goals: GOAL 1. PROVIDE LEGAL REPRESENTATION Legal representation is provided both by staff and private bar lawyers. Private bar lawyers (firms and sole practitioners) make a significant contribution to the legal aid plan, by representing the majority of clients who need representation. In some cases, LAA clients are appointed to staff lawyers, who provide services through our specialized staff law offices: Family Law Office, the Youth Criminal Defence Office, Central Alberta Law Office, Legal Aid at Siksika Nation, and Immigration Services Program. Regional LAA offices complete and process client applications and appoint lawyers. The LAA Duty Counsel program ensures the availability of free legal advice and assistance to people making their initial court appearance unrepresented by counsel. 4 To determine if an applicant is financially eligible, LAA uses the following financial eligibility guidelines: FINANCIAL ELIGIBILITY GUIDELINES (Effective September 25, 2008) Based on applicant's net income HOUSEHOLD MONTHLY ANNUAL SIZE NET INCOME NET INCOME LEVEL LEVEL 1 person $1,750 $21,000 2 persons $2,165 $26,000 3 persons $3,085 $37,000 4 persons $3,340 $40,000 5 persons $3,585 $43,000 6+ persons $3,835 $46,000
Cases That We Cover We offer coverage for many legal issues, but not all. Legal aid is most often offered for serious criminal charges (where there is a strong likelihood of someone going to jail or losing their job); 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 immigration Criminal Coverage Coverage is available for financially eligible applicants charged with an indictable offence. Summary conviction offences are covered where, in the opinion of Legal Aid Alberta, there is likelihood of imprisonment or loss of the means to earn a livelihood upon conviction. In criminal appeals, there must be merit to an accused s appeal against sentence and/or conviction for coverage to be granted. Youth charged under the Youth Criminal Justice Act receive counsel either through legal aid coverage or pursuant to the court ordered counsel program that LAA administers on behalf of Minister of Justice. 5 Civil Coverage A financially eligible applicant may be granted legal aid in a civil matter 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. Private Bar Lawyer Compensation: Lawyers bill Legal Aid Alberta for the work they have done on a case based on the fees, rates and guidelines described in a document called the Legal Aid Alberta Tariff. Currently lawyers doing legal aid work are paid $84 an hour. There are restrictions on how many hours lawyers can use to complete a file; however, lawyers are able to receive approval for more hours, if needed. (visit www.legalaid.ab.ca for further information)
Quality Assurance of Legal Services Must meet the following criteria: Counsel must be on the LAA Roster to accept a Certificate Counsel eligible to be on the LAA Roster include lawyers and students-at-law registered with the Law Society of Alberta In some exceptional cases, a lawyer from another Canadian province may be permitted to join the Roster; counsel may contact LAA for more information LAA deals with complaints on a case-by-case basis and attempts to resolve conflicts between clients and lawyers. It also performs audits on accounts submitted by lawyers to ensure the tariff is being billed accurately. LAA also has committees which perform functions that deal with quality assurance issues: 6 The Appeals Committee: The Appeals Committee represents the final level of appeal for clients in coverage issues. The Appeals Committee also provides direction in unusual cases, deals with requests from lawyers for large disbursements, extra time on files and deals with issues of coverage for appeals to the Supreme Court of Canada. Complex Case Review Committee: This Committee considers appeals from the taxation of lawyers accounts and any requests for discretionary increases to lawyers accounts based on exceptional circumstances. They are also responsible for hearing requests from lawyers for additional coverage or time due to extraordinary circumstances that take the case beyond the usual fees allowed under the Tariff. Many other legal aid plans (discussed further in this workbook) have different approaches to assuring quality of legal service. GOAL 2. PROVIDE LEGAL INFORMATION AND REFERRALS LAA also provides legal information and advice that helps clients decide what action to take. There are many avenues in which LAA provides information and referrals; the Alberta Law Line provides free legal information, referrals and advice to Albertans over the phone, regional offices provide referrals to clients who do not qualify for legal aid, and most staff law offices have access to resources that clients can be referred to.
OPTIONS FOR DISCUSSION This section lists some potential options that require input; they may if implemented be interconnected but they are not exclusive. If you are aware of other options for any of the questions please advise LAA. The listed options are based on research into how other jurisdictions provide legal aid services. Questions are asked throughout to provide a focus for readers input. Any options ultimately recommended to be considered for implementation will be outlined in a report to be provided to the LAA Board and the Minister of Justice for their respective consideration and approval. Such options will be assessed on the basis of merit, efficiency, and effectiveness within the overall context of client needs and the resources that are available to LAA to operate the legal aid plan. 1. LEGAL NEEDS ISSUES Legal needs research over the past 15 years has focused on identifying the legal problems of everyday life. Studies from Alberta 1, Canada 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. 7 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 nonoffenders 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, reducing the need for and cost of legal services. Some areas of legal need such as social benefits issues have not been well researched. Certain groups who could benefit from legal assistance are at a disadvantage. For example, some legal aid services in areas of criminal law, child welfare and immigration must be provided (mandated) because of constitutional, legal or contract commitments. However, legal aid plans are not required to provide service in other areas, like civil law or landlord and tenant issues. It has been suggested 2 that, when setting priorities, legal aid plans consider a broader range of needs, tie delivery to priorities and focus on client impact 1 Legal Aid Alberta Needs Assessment: www.legalaid.ab.ca 2 Government of Ontario, Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services. (Toronto: Government of Ontario, 1997), pp. 88-90.
Questions: 1. Do you agree with the list of legal problems itemized above as being most frequently experienced by low income persons? 2. If not why? 3. What legal need (s) do you think should be given priority? Why? 4. What criteria or rational did you use to select your legal needs and determine your priorities? 5. Do you think LAA needs to do more to meet client needs? If yes, how can LAA meet the needs of its clients more effectively and efficiently? 6. What other suggestions do you have in meeting legal aid clients needs better? 2. WHO SHOULD BE ELIGIBLE FOR LEGAL AID SERVICES AND HOW SHOULD SUCH ELIGIBILITY BE DETERMINED? A. Increase the client base 8 As outlined in the previous section, LAA clients are eligible for LAA based on financial and substantive criteria. Legal aid plans around the world set limits on who can access their services and what services they will provide. There are two types of these eligibility requirements financial, which determine who can receive services, and substantive, which determines what legal problems the legal aid plan will provide legal services. Financial: For most legal aid plans, a person can receive most services without meeting a financial eligibility test. For instance, most advice, brief services to resolve matters, duty counsel and other minor assistance matters do not require any form of income or asset testing. It is usually only when full court or tribunal representation is being considered that this requirement comes into play. Most plans also require that these clients pay back all or a portion of their lawyer s fees, usually referred to as the client s contribution. Notes Where financial eligibility does apply, there is no general standard level for income or asset testing. So, for instance, in some plans 38% of the population would qualify for legal aid (Ireland); in others, 55% without contribution and 70% with contribution (Hong Kong) 3. Some countries have a national means test across the country (Australia); others leave it up to the individual state or provincial plan (Canada). Some plans automatically qualify people on social assistance (England, Ontario) without expecting a contribution. While most have set limits as to the amount of income or net assets one can have, others do not have a fixed model based on income or family size but leave it to individual circumstance to determine if the person is needy in the legal, 3 For information on New Brunswick Legal Aid, please see: http://saintjohn.cioc.ca/record/hdc0215?number=2.4 For information on New Brunswick Legal Aid, please see: http://saintjohn.cioc.ca/record/hdc0420?number=3
rather than the economic sense (Brazil). Most require a formal, written application in order to grant a certificate authorizing a lawyer to act for the client but a few do not (Ontario s community legal clinics). Finally, while most legal aid plans leave the eligibility determination up to the administrators of the plan, this is not always the case. For instance, in Scotland, people must go to a lawyer first and the lawyer decides if they meet financial eligibility requirements. In Hong Kong, appeals for refusal of legal aid go to a high court judge. Substantive: All legal aid plans set out some criteria for what legal problems they will provide legal services. While almost all plans cover some type of criminal law areas, at least one does not. For example, Ireland s Legal Aid Board will not provide coverage for criminal matters unless the court is sufficiently convinced of the applicant s need and orders coverage for them. Other countries divide their legal aid schemes between criminal and civil and set up separately funded schemes. Civil and family coverage varies widely around the world. Hong Kong s legal aid plan tries to cover as large a part of the population as possible. It does this by having a Self funding Legal Aid Scheme (SLAS) for the middle class. People who obtain legal aid under the SLAS plan pay back some or all of the cost of the legal assistance. In civil cases, clients give a percentage of lawsuit awards to Legal Aid Hong Kong Legal Aid s core services for low income clients - together with SLAS - means about 70% of Hong Kong s residents are eligible for some form of legal aid coverage. 9 The concern with implementing a fee structure like SLAS is that it may prevent people from applying to legal aid even though they are eligible and need help. Raising the income threshold may not grow the client base because fees for higher income earners may be too much of a disincentive. Many people who do not quality for legal aid in Alberta because they are above the income threshold may not be able to retain a lawyer privately either. LAA could increase its client base and serve more people in need by changing its eligibility criteria so people with higher incomes could quality. B. Change to a quota system Changing the current service delivery model to a quota system would save money and be easier to monitor. In a quota system, a maximum number of clients would be appointed a lawyer per month. A quota system would also mean many eligible Albertans would not receive legal aid in a timely manner as once a quota is reached, LAA would have to refuse service.
Questions to consider: 1. Who should be eligible for LAA services (i.e.: proportion of the population? Income level? etc) 2. How should such eligibility be determined (please refer to page 4) for reference to this section): substantive: what areas of law should be considered other criteria would you suggest for criminal and civil; please explain financial: are the current financial eligibility guidelines sufficient? Should they be modified? How? other financial test suggestion? 3. Do you agree with increasing the client base by raising the income threshold? 4. Do you agree with the quota system approach? Please explain 10 3. WHAT LEGAL SERVICES SHOULD BE PROVIDED? As indicated in the environmental scan the pressure on government funding is significant and revenue sources for LAA, such as grant from Alberta Law Foundation, are decreasing. One approach to money pressures is to make a plan to cut to the bone. This would mean that LAA would only provide only mandated services which are required by law or agreement and provide those services in a costefficient manner. Provide only 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. Notes Services that would be kept because they are mandatory or through contract would be: 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
Counsel for children in high conflict situations if it is deemed necessary to protect the best interests of the child and in child welfare situations Youth Criminal Defence Office Duty counsel at criminal and youth courts 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 If LAA was required to cut to the bone many discretionary services would be terminated. These may include: Alberta Law Line, including its partnership with Legal Information Centre services; Central Alberta Law Office, except for youth duty counsel (likely provided in a different fashion); Family Law Office, except for child welfare and children s counsel for high conflict children s custody and/or access disputes Legal Aid at Siksika First Nations, except for duty counsel at criminal and youth courts Duty counsel other than in criminal and youth court All family law coverage not provided by the Family Law Office All non-family civil law 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. 11 Legal Aid New Brunswick (LANB) has a relatively pared down plan in comparison to others in Canada. It provides duty counsel services for first appearances in Provincial Court (for youth and adult criminal matters, as well as Family Court), and their domestic legal aid program provides legal services (custody, access and support) for victims of spousal abuse and for parents in the matters of support. 4 However, trial lawyers are provided only for serious criminal court trials and custodial parents in matters involving the Department of Social Development. This is contingent upon the clients being financially eligible. LANB also has a legal clinic that provides general summary legal advice to people either in person or over the telephone. Each visit costs $30.00 and clinic lawyers do not represent the clients in court. The Legal Clinic is located in the city of St. John, and currently serves four surrounding communities. 5 4 For information on New Brunswick Legal Aid, please see: http://saintjohn.cioc.ca/record/hdc0215?number=2. 5 For information on New Brunswick Legal Aid, please see: http://saintjohn.cioc.ca/record/hdc0420?number=3
Questions: 1. What type of services should LAA provide: Mandated services only Mandated services plus other services What other services? 2. What do you think should be given priority? Why? 3. What criteria or rational did you use to select your services and determine your priorities? 4. HOW SHOULD LEGAL AID SERVICES BE DELIVERED? Legal aid plans provide their services largely through one of four models: a judicare model, a staff model, a mixed model or an extended model of service delivery or any combination thereof. The choice of any one model may be affected by history, the relative availability of private bar lawyers, quality and efficiency concerns and/or the potential for collaborative relationships amongst providers. 12 Judicare: The term judicare has been given to the model where legally-aided services are provided by specific members of the private bar. These lawyers agree to provide legal services to persons whom legal aid has approved, i.e. persons who have met a legal aid plan s eligibility requirements. In turn, legal aid agrees to directly pay the lawyer in accordance with its tariff of fees and disbursements rather than the lawyer trying to get payment from the client. The tariff in most cases would be less than what the lawyer would charge to a non-legal aid client. Germany and Belgium are two countries with a pure judicare model. However, Belgium has tempered its model with a unique lawyer compensation system which allows them to control and limit their income. In Canada, British Columbia has moved back from a mixed to a predominantly judicare model. Staff: A staff model of service delivery is one where all or most legal services are provided by lawyers (and possibly non-lawyers) who are employees of the legal aid plan. Legal aid plans in Saskatchewan and Nova Scotia operate through a staff model. Internationally, Ireland provides its civil coverage through a staff model. South Africa is moving from a judicare to a staff model. Notes
Mixed: A mixed model of service delivery is one where some services are provided by the private bar and some are provided by staff lawyers. The ratio of private bar to staff provision can vary greatly in this model. In Canada, Manitoba provides almost half of its court representation work and most of its other legal services through its staff services. Alberta also provides its services through a mixed model, although the proportion of staff services is lower than in Manitoba. Internationally, the Netherlands, New Zealand, and Scotland use a mixed model. Synergetic: A synergetic model is one where a legal aid plan strives to coordinate or harmonize services provided by it and other non-profit legal service providers. It is in some ways an extension of a mixed model. A legal aid plan may provide funding directly to the non-profit organizations or it may work in partnership with them. Examples of this model are found in the United Kingdom and in the Province of Ontario. Currently Legal Aid Alberta provides most its legal representation services with a judicare model, and have a small percentage of clients that are represented by staff lawyers in areas where there is need. (family, youth, etc). The following options ask you to provide feedback on other service delivery options. Some options to consider are: A. Enhance client focus 13 Currently LAA concentrates on the eligible client s legal problems. LAA could be focused more on addressing the eligible client s problems, which are rarely just legal. Clients often need other professionals like social workers to help them deal with issues successfully. Needs assessments indicate there is a gap between the pressing needs of low-income clients and where LAA provides most of its current services. A triage approach would see LAA staff at first contact direct a client to the most appropriate resource (legal or otherwise). This would likely be more effective for the client and more cost-effective for LAA.
B. Give a person a legal aid certificate only as a last resort 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 certificate as a last resort model, 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 paralegal before a certificate is granted. It s expected that this model would: Reduce costs Provide better client outcomes through quick resolution and/or prevention of further legal needs. 6 Minimizes unnecessary court delays and drain on court resources ) Services are provided that more closely match the need 14 In this model, legal aid services would be more tailored to client needs, clients would have more control and they would gain a better understanding of how to help themselves. 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 enable LAA to consider the following depending upon what services LAA is providing and how such services are prioritized: C. Introduce mandatory mediation or settlement meetings This approach would force 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. 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. 6 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).
D. Provide a one-stop client legal services centre with centralized information and human resources This would be the first point of contact with clients. At such a centre, legal and related needs would be identified, advice and information provided, and a decision made as 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. LAA s Edmonton regional office and the Alberta Law Line could easily be adapted to become LAA s first Client Service Centre. E. Unbundle services Unbundling means providing only those services that match the client s immediate needs. Sometimes these services do not require the help of a lawyer. Allowing only one aspect of client s need to be dealt with (rather than granting a certificate for the entire case) might mean clients get quicker service and cases get resolved faster. F. Use paralegals instead of lawyers whenever possible 15 Paralegals can help clients handle complicated paperwork and provide a basic level of legal knowledge and skills. 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. G. Establish legal clinics A staff law office contains lawyers on salary who primarily provides reactive one-on-one legal services to clients. These services may include advice, unbundled legal services, alternative dispute resolution, settlement advocacy and court or tribunal advocacy. The lawyers may be assisted by non-lawyers and social work staff. 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. 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.
H. Give legal aid roster lawyers access to family resource facilitators The Youth Criminal Defence Office, Family Law Office and Central Alberta Law Office use family resource facilitators to help clients reach their goals. They play a key role in supporting both clients and lawyers. When children 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 other challenges lay in their way. In doing this work, facilitators are also aiding lawyers in keeping files updated and well documented. LAA believes making Family Resource Facilitators available to LAA roster lawyers would be a benefit to both clients and lawyers. I. Enter into more partnerships 16 Partnering with more organizations has proven to help disadvantaged groups gain easier access to legal aid and legal resources. For example, Alberta Law Line has partnered with a women s shelter to provide them with a dedicated phone line. 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 Social service providers working directly with LAA staff or staff law offices to meet associated client needs. J. Expand staffed legal services 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). A potential area of expansion may be with regards to expansion of family law representation services and staff duty counsel services. In Ontario, for example, expanded duty counsel offices 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. 7 7 2008 Trebilcock Report
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 lawyers. 8 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. LAA does not currently operate an adult criminal law office (sometimes referred to as a public defender s office). Public defender 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 Offices do not adversely affect the private bar 17 These jurisdictions report the following disadvantages: Not cost-efficient because of start-up costs & overhead There are 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 Not necessarily more efficient, depends on number and composition of cases and number and experience of lawyers 8 The Public Defender in England and Wales: A Flawed Experiment (presented in 2007), Evaluating the Scottish Public Defense Service (published in Moorhead in 2003), Final Report on the Evaluation of the PDS Project (2008), Analysis of Cost Effectiveness of Criminal Law Offices in Ontario (2008), Legal Aid Delivery Models in Canada - Past Experience and Future Directions (1999)
Questions to Consider 18 1. Should LAA continue to use a mixture of staff and private bar lawyers to deliver legal aid services? 2. Do you agree with the certificate at last resort approach? 3. Do you agree with the following? Please explain as to why you agree or disagree. 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 roster lawyers access to Family Resource Facilitators g. Entering into more partnerships. h. Expansion of other staffed legal services i. Staff lawyer Office /Public Defender Offices j.establishing a triage process 4. What priority would you give to the above 10 suggestions referred to in question 3 and what criteria or rational did you use to determine your priorities? 5. Do you support LAA: a) expanding the family law representation services b) expanding the staff duty counsel services Please explain your position. 6. For you or your firm, how would the expansion of each of the below services have an impact? Notes i. the staff family representation ii. staff duty counsel services 7. Do you support the concept of a Public Defender Office? If so, why? If not, why? 8. What other options could you suggest for improving service delivery and why? 9. What other options could you suggest to improve service delivery and why?
5. CHANGES TO LAA BUSINESS PRACTICES LAA 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. A. Collaborate and interact more closely with stakeholders and service providers Feedback from our needs assessment and other studies suggests LAA is bureaucratic and creates barriers for clients and referral agencies who want to access our services. LAA could do business better by enhancing its stakeholder and community involvement. B. Leverage technology Technology can make it easier for clients to access legal aid services. Translation services, on-line documents and databases, large print and audio formats, videoconferencing and other technologies allow more clients to better understand their legal rights, LAA s services, and legal education materials. It helps to reach rural clients, people with mobility problems and others who cannot visit a legal aid office. Even trust and interaction are improved when people are able to see each other via webcams or videoconferencing as opposed to just a telephone or written communication. 19 C. Streamline and improve business processes Business efficiency plays a large role in service delivery by reducing overlaps and redundant measures. Some options for improving business processes include: Improving LAA applications process by allowing lawyers to take off-site applications for LAA clients and using technology to better service our clients (i.e.: online and phone applications). Reducing LAA Lawyer Interaction by developing better processes for disbursements, billing and electronic communications between staff and lawyers By implementing a business structure that speeds up and reduces the need for interaction between LAA and its partners. This would mean less administrative work on both ends, but some face-to-face interaction could be lost and clients may feel that they are receiving a lesser service. D. Quality assurance Considering the perspective of the private bar to a staff lawyer model, and considering the perception from the public that legal representation provided by LAA is inferior (the legal aid lawyer) LAA must look at other quality assurance options. Audit schemes exist around the world to provide lawyers with feedback and to ensure that client needs are being met. In Hong Kong for example lawyers are reviewed by a departmental monitoring committee made up of assigned lawyers. In New Zealand, the public defender service is reviewed by 2 levels of audit (both internal and external). Although there is
some debate as to whether internal review is better or if external review is the preferred method, most agree that reviews are necessary to ensure that files are being dealt with in a competent manner, client needs are being met, resources are not being wasted, and achievement is recognized. Whether internal or external, peer review has emerged as the tool of choice with regards to ensuring that quality standards are being met in legal aid organizations. In the United Kingdom 9, Scotland 10 and Ontario s three Criminal Law Offices 11, legal aid files are reviewed according to a five point scale with three being threshold competence. Three is placed as the pass mark at the outset of the scheme to allow service providers time to adjust to having a quality assurance regime while leaving room for quality enhancement over time. Reviewers are experienced senior counsel who has undergone training to recognize the appropriate marking criteria. In Ontario, where reviewers are able to meet with the lawyers afterwards to discuss the files, most lawyers performances were graded as being above average (the average group mark was 3.5 out of 5). Nevertheless, the idea of file review has been met with fierce resistance by private practitioners everywhere. It took much negotiation before it was implemented in the UK and Scotland, and to date, only the Criminal Law Offices in Ontario are participating in the peer review. 20 These jurisdictions report the following advantages of audits and reviews: Pre-establishes expectations and recognizable standards for staff and clients Provides a means of redress Allows for a more informed context for review and increased objectivity Provides regular feedback for staff according to set criteria Presence of go-to superiors when direction is needed Provides corrective data and feedback from stakeholders Enhances ability to tailor services to needs Ensures that funds are well-spent These jurisdictions report the following disadvantages of audits and reviews: Performance is geared towards a specific skill set (which might preclude the development of alternative skill sets) Provides a lack of incentive to strive beyond or around standard internal is less objective; external is more costly Less informed about internal workings Increases administrative burden and diminishes focus on substantive work Poorly structured policies can limit efficiency and decrease morale 9 10 Further information may be found inside Reaching Further, in the article by James Stripbopoulous 11 Further information may be found inside Reaching Further, in the article by James Stripbopoulous.
Can be costly and time consuming The usefulness of data is dependent on the scope and depth of research May screen out potentially good roster lawyers (e.g. junior lawyers) Monetary caps has the potential to impede service delivery Questions to consider: 1. Do you agree LAA needs to do a better job of communicating with clients and partners like referring agencies? If yes, what process or communication changes would you like to see? 2. How can LAA better use technology to serve its clients and partners? 3. Are there opportunities for LAA to better use the resources of other agencies to meet its clients needs? If yes, what are those opportunities? 4. How can LAA improve its application process? 5. Is it appropriate for LAA to ask lawyers, justice support staff, or other partners to do more legal aid administration and client interaction (i.e. lawyers taking legal aid applications)? 6. Do you think reducing LAA- Lawyer interaction would be helpful to LAA, lawyers and clients? 7. Do you support more quality assurance of lawyers through auditing and case file reviews? Why? Or Why Not? 8. What are the alternatives to auditing and case file reviews that would achieve the same results (assurance of quality representation)? 21 Notes
6. LAWYER COMPENSATION ISSUES Note: The LAA tariff is explained in the How legal aid works section 22 Different plans have different ways of paying their lawyers. Some jurisdictions pay 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, in Ontario, British Columbia and New Zealand, there exists a tiered system. Lawyers can bill according to the number of hours they have worked on a file, and 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. 12 Another method is that of block tendering or procurement. In the United Kingdom, preferred suppliers are given the opportunity to bid on a certain volume of files. 13 The firm s fee will be the amount they tendered. Another method is to pay lawyers a fixed salary, as staff or contract lawyers. The vast majority of South Africa s lawyers work on a salary basis (approximately 85%) as they have a justice center model. Justice centres are 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. Other payment models (will depend on nature of services provided) A component of achieving sustainability through doing business better is to look at other methods of payment. Some examples of this are: Litigation lending scheme Under this approach, a fund is created to assist eligible clients with a civil law case. The up-front costs of the litigation are paid through a loan from the fund. The loan with interest must be repaid at the conclusion of the litigation. In some schemes, the repayment is geared to the litigant s ability to pay. 12 a. Information on BC s tariff and cap may be found at http://www.lss.bc.ca/assets/media/factsheets/legal_aid_rates.pdf (accessed on July 30, 2009) b. Information on NZ s tariff and maximum allowable hours may be found at http://www.lsa.govt.nz/lawyers/criminal-legal-aid/eligibilty.php (accessed on July 30, 2009) c. As of the 2004-2005 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 Legal Aid Ontario. More information on ON s tariff and billing may be found at http://www.legalaid.on.ca/en/info/resources.asp. 13 Information on block tendering may be found at http://www.legalaidprocurementreview.gov.uk/
Block contracting of legal aid cases Rather than funding legal aid work on a case-by-case basis, a legal aid plan could block fund. Through a bidding 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 LAA and the lawyer or firm and brings some predictability to a lawyer s legal aid practice. Funds to cover disbursements when lawyers do pro bono work Many lawyers assist clients, who otherwise would not have access to legal advice and services, by taking on cases on a pro bono basis. However, someone has to pay for disbursements court filing fees, expert witness expenses, etc. A pro bono disbursements fund could be created to pay for these expenses when a lawyer is doing pro bono work for eligible legal aid clients. This decreases the costs of pro bono work for lawyers and increases the amount of pro bono work they can take on. Establish a list of preferred vendors Developing a practice of engaging only preferred vendors for legal disbursements may be a good financial move. Currently, the custom is that lawyers are allowed to choose their own specialists for certificate work. With a healthy list of preferred vendors it would be possible for LAA to negotiate discounts, direct billing, and better control expenses for these services. 23 Questions to consider: Notes 1. Do you think LAA should restructure the way it pays lawyers? If yes, which different method do you prefer and why? 2. If a tariff method is to be retained, what tariff changes and other incentives would be needed to attract private bar lawyers to do legal aid work. (In the past lawyers showed a greater commitment to participate in the legal aid system.) What can LAA do to renew that commitment? 3. Do you support: a) Litigation Lending Schemes b) Block Contracting of Legal Aid Cases c) Funds to Cover Disbursements When Lawyers Do Pro Bono Work d) Establishing a list of preferred vendors 4. What other payment methods should LAA consider?
7. OTHER SOURCES OF REVENUE OR SUPPORT IN KIND FOR LAA As a registered society incorporated under the provincial Societies Act, Legal Aid Alberta (LAA) is an organization independent from government, but that is accountable to the Minister of Justice for Alberta and to the Law Society of Alberta. Sources of funding are: Government of Alberta Government of Canada Alberta Law Foundation The primary source of funding comes from the Government of Alberta through the Minister of Justice. Funding from the Government of Canada is received by way of reimbursing the province of Alberta for a portion of LAA s legal aid expenditures. LAA also receives an annual grant from the Alberta Law Foundation in the amount of 25 percent of the money contributed each year from interest earned on lawyers' general trust accounts. Due to the current economic situation the Alberta government grant has been the same amount ($53.8M) for 2008/09 and 2009/10 and the ALF funding has significantly decreased as indicated earlier. 24 Other sources of yearly revenue for LAA include contributions and cost recoveries from clients, (funds received from clients paying for legal services acquired) as well as investment revenue generated from funds on hand. Some examples of how other plans generate revenue are: The Manitoba and B.C governments apply a legal services tax to legal services. This 7% is then provided to the Manitoba legal aid plan. Taxable legal services are provided in all areas of the practice of law, including commercial and corporate, labour and employment, family, real estate, criminal, environmental, personal injury and taxation. There are some exemptions including work done for Legal Services Manitoba clients. Legal expenses insurance (also known as LEI) has been popular in Europe for decades. Legal aid plans raise revenue through administering these insurance schemes. The Upper Canada Law Society of contributes 75% of its funding to Legal Aid Ontario.