Jump to content
Sign in to follow this  
epeeist

Access to Justice

Recommended Posts

By re-reading Hegdis' post, I can't get how lawyers even make the other-than-occasional Legal Aid file work for them.

 

He's speaking in terms of average costs, and that would be accurate if all your clients were legal aid clients.  

 

Law schools should have a session on the economics of the practice of law, it would be fascinating.  It's been a while since my economics days, but let me give this a shot. (I'm doing this off the top of my head and haven't looked at a micro textbook in a decade, so forgive any errors).

 

There are two constraints to the practice of law

First:  average cost (including your opportunity cost - e.g., what you could make at your next favourite job) =< average revenue  (the profitability condition)

 

Second:  marginal cost =< marginal revenue (the "fuck this, I don't need this shit" condition)

 

What the first constrain means is that you have to make money - if you don't make money, you quit the legal profession and take your next favorite job.  What the second constraint means is that, given that the first contraint is satisfied, you're willing to work any time the revenue arising from an extra hour of work exceeds the cost (notably loss of leisure, but also other variable expense) of that extra hour of work.  Beyond that, fuck it, you don't need this shit.

 

If all your clients paid $100 an hour, as in Hegdis' example, the first constrain isn't satisfied - because you can make more money doing something else.  

 

But, what if some of your clients paid $350 an hour, but others were willing to pay $100 an hour (e.g., legal aid)?  Now, you may be able to satisfy the first constraint, even though some of your clients are only paying $100 an hour, because you've got enough clients paying full freight.  And because you're only thinking about marginal cost (not average cost) in the second constraint, you may well be willing to provide some (considerable) number of hours to the $100 clients, because at that point, your fixed costs are paid, and every extra hour is an extra $100 (less variable costs).  But your variable costs are upwards sloping (i.e., you value every extra hour of leisure you give up a bit more), so there is a limit to how many extra $100 clients you're willing to serve.  For an extra $350 an hour, sure, I'll miss my kid's piano recital and take on a new file.  For $100, fuck that, I don't need another file.  

 

Now, you might ask, given that, why only work for legal aid, why not work for other clients at $100 an hour? First, I suspect many lawyers do effectively do that (e.g., they write off time or cap time, so that their effective hourly rate is less than $350 for some "paying" clients).  Second, they may not want to do that because they don't want to cannibalize their "paying clients" - and legal aid distinguishes the truly needy from the merely cheap.  

  • Like 1

Share this post


Link to post
Share on other sites

Okay, I was due to make an appearance, and it's a totally valid discussion. My reply will come in several pieces.

 

First, my perspective is entirely Ontario-based, and while I believe there are some people who are versed enough in the policies of several provinces that they can usefully compare them, I am not one of them. I only know Ontario. And I don't think (though I could be wrong) Hegdis knows provinces outside BC very well either.

 

Important to keep in mind: Legal aid does not usually pay by the hour. It pays by the task. The task can take you ten minutes or ten hours depending on the client and the file.

 

This is sorta true. In Ontario there are hourly rates. But the hours that can be charged for various things are capped. In practice, since just about everyone maxes out their hours on everything, is becomes a task-based rate that simply exists as a multiplier of the hourly. Lawyers routinely put in far more hours than they can actually bill for the certificate, and it amounts to the same problem Hegdis is describing. That said, the numbers I see quoted on BC rates are staggeringly bad. I could never bring myself to describe Ontario rates as generous, but as compared to rates in BC, they might be. I don't know what the entire spectrum of BC rates might be, but for what we're talking about right now, Ontario is at least a lot less desperate than that.

 

Second, this is a related topic I can't go into entirely right now, without dragging us far off topic. But in any publicly funded system there's always the danger of driving outcomes with how the system is funded. It happens in medicine too. If a drug is funded to treat X but expensive surgery to permanently correct the same problem isn't funded, then what are you going to do? In criminal law, the cheapest thing you can do is plead guilty. Private clients sometimes choose that option also, only to save money. It's sad, but it's the truth. Now, when we're talking legal aid, it's the province deciding what to pay for and how much to pay for it. Again, I only know Ontario. But pleading a client guilty is the fastest and easiest way to make money. Fighting a case properly, and taking it to trial, is a lot less lucrative. So bottom line, if you're trying to evaluate whether legal aid can provide a lawyer with a decent income, it often comes down to this question. Do you want to be a shitty lawyer or do you want to be a good one? If you're willing to be a shitty lawyer and push your clients into pleading guilty when maybe they shouldn't, and you do what's fastest and easiest on most or all files, then legal aid can provide a pretty good income. If you want to be a good lawyer and do things properly it gets worse - actually in direct proportion to the degree that you do the properly. How fucked up is that?

 

Third, Cluj has said "I am not sure it is a good argument to say that many LAO certificates are accepted on a partly pro bono basis..." I know you are posting in good faith so I won't slam you, but it is a good argument. In fact, it's the only reasonable position. When you start working in and around legal aid, you'll hear it represented from every quarter that the legal aid rate is set on the assumption that lawyers are working on a partly pro bono basis. It's true that some lawyers end up working either exclusively or almost exclusively for legal aid clients. But arguing that the rate represents an acceptable status quo only because some people are getting by on it doesn't add up to a reasonable position. Yes, you can survive doing it. The only way to live well doing it is if you turn yourself into a dump truck. See above.

 

Fourth, specific to my own practice. Yes, the large majority of my clients are still on legal aid, and yes, I've put together a couple of moderately good years. I won't complain about the income I'm currently earning, but with several huge caveats:

 

1. I managed to minimize my law school debt. It's the only reason I'm living reasonably well rather than just getting by. If I still had to make major payments on student debt, my lifestyle would be spartan at best.

 

2. I work my ass off. Seriously, I do. I know newer calls are in that position all over the place, but I'm doing it too. And it isn't sustainable. It's fine for right now. Paying your dues any everything. But I can't keep it up any more than a professional MMA fighter can keep it up year after year. Sooner or later, I'm going to have to slow down or I'll just fucking kill myself. Which brings me to ...

 

3. There's no step up. There's no where to go except to private clients. In Ontario, you get very minimal rate increases based on seniority, but it's almost nothing. A thirty-year call makes about 30% more than I do on a legal aid certificate. And that's insane. So even if you can approximate the income of early year calls in other areas of law on legal aid, what is the justification for killing yourself? They are looking at huge raises every year of call in the early going. They are thinking about making partner one day. All you have to look forward to is another year of working just as hard for absolutely no increase in your income. And that's if LAO rates even keep up to inflation, which they may not. Your real income could go down.

 

4. There are no benefits, no retirement plan, no sick leave, no maternity leave, no nothing. Again, it's something you can live with for a couple of years. But as a permanent lifestyle? It's crazy.

 

5. I'm one of the most successful people I know at building a practice from straight out the gate. Seriously. People ask me how I did it. So consider what the challenges look like even for me, and imagine what the less fortunate are looking at.

 

Fifth. I do, in my practice, often quote fees to my clients that are not substantially higher than what legal aid would pay. So yes, it happens. The only problem is, I know that I'm killing myself by doing it. See above. I low ball myself too much, and I need to stop.

 

In summary. You really can't look at what legal aid is paying and suggest that it's a reasonable private rate. It just isn't. For all of the reasons above. Private, paying clients are what most lawyers aspire to move into. That's what represents "moving up" in the food chain. I may have slightly different aspirations in my own practice but I'll save that for some other time. The point is, you really can't expect lawyers who are working for peanuts to settle for peanuts their entire careers. That makes as much sense as saying "lawyers who take associate positions for $100k as first year calls should be willing to continue working for $100k/year indefinitely. If only they'd do that, lawyers would be so much cheaper!" It's true ... but does it bear any resemblance to reality?

 

Finally. All of what's been discussed here masks a basic point that's going to implode what almost everyone has said to this point, including myself. The idea that you work for legal aid a lot of the time, and then make up the difference by pulling in some private clients and charging them many times over what legal aid would normally pay you ... that only makes sense if legal aid and private clients are distributed evenly. And they absolutely, without question, are not. In reality, many lawyers have nearly exclusive legal aid practices, with only the occasional private client who probably isn't well off anyway, and some lawyers (a minority) have lucrative private practices where they never take legal aid. That's never going to change. Because there are a lot of marginal legal aid files for the lawyers who'll do the work (and you can get a lot of work if you hustle - I know that for damn sure) but there are far fewer private clients who can pay you five figures to defend them or maybe even six figures for a major trial. The few private clients there are, with that kind of money, tend to gravitate to the same successful lawyers. So it's a very stratified profession out there, between the "haves" and the "have nots."

 

And so where the hell does that leave us? Not with any obvious solutions, that I can see. The truth is that a lot of lawyers in legal-aid-heavy areas of practice may never attract the more lucrative private clients. But can you realistically expect them to give up on that ambition? Or to not make more money when they can? These are areas of practice that already attract (I'm going to be honest) probably more lawyers who get "stuck" doing that kind of law than who really and truly wanted it. Do you propose that we turn the criminal defence bar (and related bars) into the ghettos of legal practice where only the poorest and most desperate end up?

 

That's the reality, folks. Do with it what you will.

  • Like 7

Share this post


Link to post
Share on other sites

Can some access to just be created with systemic reform? Criminal is particularly tricky but is making family law and perhaps certain areas of law (like PI) more simplified than they are for many kinds of disputes an option?

 

I know the system tends to complexity (my relatively brief experience with the HRTO, which initially envisioned a 12 month process bears that out), but there must be some way to more efficiently move through self-represented family litigants to better outcomes, not tomention possible alternative routes to deal with issues like addiction, mental health and the like that get tied up in the criminal justice system to societal detriment outside the court process. The drawback is that lawyers will have to earn less money, and accept a system structured around that fact. Institutionally of course there is a tendency to cast such shifts as "undermining the rule of law" but is the current situation any better? I don't have any answers but certainly our current dispute resolution system is simply not well suited to resolving disputes.

Share this post


Link to post
Share on other sites

Ok, I just came back to this thread to see not one, but three long posts, by maximumbob and Diplock. So quickly, before even reading, re-reading, and engaging where warranted, thank you! (and as it's made clear below not just to you specifically)

 

Thank you for taking the time to engage. It's awesome that this forum has turned into the great resource it is. Also, that so many experienced posters (and by now also many busy and experienced lawyers), find it interesting enough to engage so often and so thoroughly: sometimes with the nuts and bolts of practice; and other times with broader policy consideration discussions, like this one. I don't have the posting history on ls.ca to give it more weight, though I've been reading a lot, but the thank yous bear being expressed every once in a while.

 

Finally, in this interlocutory post, I meant to also attract attention back to epeeist's OP, and the article referenced therein. I skimmed it. It makes some interesting points. One is that in Ontario, lawyers in private practice are almost a minority (barely over 50% of all lawyers on the rolls, even non-practicing); that the proportion per capita is decreasing, despite the absolute number of lawyers increasing (which is anathema to A2J); that sole-practitioners are a dying breed; and that just only about 50% of lawyers in Ontario (and around 40% in Quebec) maintain E&O insurance that even allows them to serve the public. I also agree that Alternative Business Structures are unlikely to help A2J beyond a few niches like class actions, or files that are amenable to contingencies. Beyond the interesting facts however, I wholeheartedly disagree with the author's conclusion that the law societies should simply be abolished (in spite of any justifiable despise one might have for them, in a particular or general sense). The self-regulators might have a role to play in facilitating A2J, and they definitively have other legitimate functions; but ultimately it is a mandate for the government and society to find a solution. I think so, but I am ready to stand corrected on that gut feeling-type of thought process.

Edited by cluj

Share this post


Link to post
Share on other sites

Can some access to just be created with systemic reform? Criminal is particularly tricky but is making family law and perhaps certain areas of law (like PI) more simplified than they are for many kinds of disputes an option?

 

I know the system tends to complexity (my relatively brief experience with the HRTO, which initially envisioned a 12 month process bears that out), but there must be some way to more efficiently move through self-represented family litigants to better outcomes, not tomention possible alternative routes to deal with issues like addiction, mental health and the like that get tied up in the criminal justice system to societal detriment outside the court process. The drawback is that lawyers will have to earn less money, and accept a system structured around that fact. Institutionally of course there is a tendency to cast such shifts as "undermining the rule of law" but is the current situation any better? I don't have any answers but certainly our current dispute resolution system is simply not well suited to resolving disputes.

 

I really don't know why people think that the complexity in the system is somehow created by lawyers seeking money. Since you've excluded criminal law as an example, and cited family law as an area you would seek to simplify, let me pose a scenario.

 

There's a woman who has left her husband and taken her kids with her. She believes he is abusive (though can't prove it) and a terrible influence on her children. She wants sole custody and wants to minimize all contact with the father. But he has the large majority of the money and is seeking joint custody.

 

You try to explain to this woman that in order to economize on the justice system, she is going to experience a stream-lined version of justice in which her ability to lead the evidence she wants will be minimized, her time to resolve the issue will be shortened, and her avenues of appeal will be eliminated. And now you'll say "ohh, but you've picked a contentious example!" Here's a news flash. To every person who is before the courts, their issues are bloody important. Yes, we can compare between issues that are critically important and issues that are merely serious. But to the litigants, they are all incredibly important.

 

That woman is going to fight every way she can fight. And she'll pay a lawyer to do it as long as she can. You act as though it's the lawyer being greedy, but that's ridiculous. One lawyer might advise her "hey, don't waste your money, you're out of options" but if she can't accept that answer she'll just find another lawyer to take her money. So your example only makes sense if ... what? The entire legal bar were to agree on when it's reasonable and not reasonable to continue fighting? Let's reject that idea as inane. And what we're left with is the same thing I said already. You aren't proposing that lawyers be stopped in their legal maneuvering. You are proposing that individual people be simply denied access to complex systems of justice with appropriate controls and balances.

 

I'm not saying you're entirely out to lunch. Sometimes things can and should be simplified. But by marrying the problem of complexity with lawyers who want to earn money, you've made a truly ridiculous suggestion. It isn't the lawyers who are exploiting complex justice systems. It's the clients who are pursuing every angle they can before giving up. You'll never prevent them from hiring a lawyer so long as those options exist. So what you're talking about is closing down options in our legal system, and stopping individual people from seeking redress. You aren't just talking about stopping lawyers from billing for more hours.

  • Like 1

Share this post


Link to post
Share on other sites

My assertion that lawyers would make less money would have to come through:

 

Reforms that simplify lawyers' work; less adversarial systems, adoption of inquisitorial approaches where appropriate etc. make lawyers less lucrative a profession (see the civil law world as an example, or so I understand it), combined with...

 

Reforms that maximize the ability of non-lawyers to provide services (paralegals are a prime example, but one could imagine other avenues if representation).

 

The changes would, i think, have to quite fundamental to change the incentives you allude to.

 

I guess the question is in some ways (not all--each have their own flaws) have we nothing to learn from outside the common law world to create more access to justice? Unless what we are talking about is simply access to lawyers. One is not necessarily the other, though I believe in the common law system one does need access to lawyers for the system to be just in any real sense.

  • Like 2

Share this post


Link to post
Share on other sites

My assertion that lawyers would make less money would have to come through:

 

Reforms that simplify lawyers' work; less adversarial systems, adoption of inquisitorial approaches where appropriate etc. make lawyers less lucrative a profession (see the civil law world as an example, or so I understand it), combined with...

 

Reforms that maximize the ability of non-lawyers to provide services (paralegals are a prime example, but one could imagine other avenues if representation).

 

The changes would, i think, have to quite fundamental to change the incentives you allude to.

 

I guess the question is in some ways (not all--each have their own flaws) have we nothing to learn from outside the common law world to create more access to justice? Unless what we are talking about is simply access to lawyers. One is not necessarily the other, though I believe in the common law system one does need access to lawyers for the system to be just in any real sense.

 

Well, look. I think a lot of what you are posting is either simplistic or else involves such massive, sweeping change that it would require a 1,000 page report to not be simplistic. But I'll at least agree that it's common to confuse access to justice with access to lawyers, and the two are not the same thing, nor should they be.

Share this post


Link to post
Share on other sites

Sorry, Diplock, when I first posted, I was looking to wrap this up and have a complete A2J solution by 9:00 pm, and within the first page of this thread. I failed at both [heavy self-directed sarcasm]. And then you posted this:

 

In criminal law, the cheapest thing you can do is plead guilty. Private clients sometimes choose that option also, only to save money. It's sad, but it's the truth. Now, when we're talking legal aid.... pleading a client guilty is the fastest and easiest way to make money. Fighting a case properly, and taking it to trial, is a lot less lucrative. So bottom line... it often comes down to this question. Do you want to be a shitty lawyer or do you want to be a good one? If you're willing to be a shitty lawyer and push your clients into pleading guilty when maybe they shouldn't, and you do what's fastest and easiest on most or all files, then legal aid can provide a pretty good income. If you want to be a good lawyer and do things properly it gets worse - actually in direct proportion to the degree that you do the properly. How fucked up is that?

[partial quote, with edits]

 

And it dawned on me that, in Ontario at least, but not in B.C., I can finally see how some mid-call criminal lawyers can survive on Legal Aid files. All of a sudden, I didn't like what I saw (generalized, and surely with exceptions): you're either a "shitty lawyer" pleading many defensible clients out; or you run yourself into the ground trying to have a sustainable practice, that is physically unsustainable for the lawyer in the longer term--and even that is possible only if you're quite astute on the business side. Which, of course, means that even you are only making it more unsustainable in the longer run when you also give private clients the same superior service at only slightly higher-than-legal-aid rates.

 

This is in the criminal context, but can be extrapolated to other individual-client-heavy areas. So, back to the drawing board. I would have lots more to say, but I have at least come to the conclusion that comparisons to medicine or dentistry are not generally available, except on some distinct points.

 

Now, can the experienced contributors finally solve the A2J crisis, at least by the end of this second page of the thread...?

Edited by cluj

Share this post


Link to post
Share on other sites

I agree with your comments generally--with the two caveats below. The economics (re)primer was helpful for a different lens. I hadn't applied micro-economics to this A2J context the way you have.

 

You've got it the wrong way around. The legal aid-clients are the equivalent of the uninsured patients - people who can't afford to buy  legal services.  The private clients are the equivalent of insured patients - people who can afford to buy legal services.    

Here, I would still not fully agree. Maybe the Legal Aid-qualified clients are uninsured (though Legal Aid is a kind of stop gap for them, not unlike a social safety net). But the private clients aren't insured in any meaningful sense of the word. At best, they are self-insured and pay out of pocket what they can; and get services to the extent they can or to the extent to which lawyers extend them reduced rates and block fees, because that is the only available option for them. They are definitely not self-insured by choice [in the way, for example, of drivers in Ontario who can avoid paying for compulsory automobile insurance by maintaining some kind of deposit of $200,000+ (which is the minimum limit of legislated insurance)].

 

  But your variable costs are upwards sloping (i.e., you value every extra hour of leisure you give up a bit more), so there is a limit to how many extra $100 clients you're willing to serve.  For an extra $350 an hour, sure, I'll miss my kid's piano recital and take on a new file.  For $100, fuck that, I don't need another file.  

 

Now, you might ask, given that, why only work for legal aid, why not work for other clients at $100 an hour? First, I suspect many lawyers do effectively do that (e.g., they write off time or cap time, so that their effective hourly rate is less than $350 for some "paying" clients).

When you add the marginal cost of leisure and some variable but palpable hourly costs (and I further add the marginal rate of taxation), then many more lawyers should be enjoying more kids' piano recitals instead of legal aid work, and the A2J problem should be even greater. So, at least in part, it's still dedication to the cause and the greater good, or inertia, or both. Neither of which can be relied upon to solve the much larger A2J problem.

Edited by cluj

Share this post


Link to post
Share on other sites

Sorry, Diplock, when I first posted, I was looking to wrap this up and have a complete A2J solution by 9:00 pm, and within the first page of this thread. I failed at both [heavy self-directed sarcasm]. And then you posted this:

 

[partial quote, with edits]

 

And it dawned on me that, in Ontario at least, but not in B.C., I can finally see how some mid-call criminal lawyers can survive on Legal Aid files. All of a sudden, I didn't like what I saw (generalized, and surely with exceptions): you're either a "shitty lawyer" pleading many defensible clients out; or you run yourself into the ground trying to have a sustainable practice, that is physically unsustainable for the lawyer in the longer term--and even that is possible only if you're quite astute on the business side. Which, of course, means that even you are only making it more unsustainable in the longer run when you also give private clients the same superior service at only slightly higher-than-legal-aid rates.

 

This is in the criminal context, but can be extrapolated to other individual-client-heavy areas. So, back to the drawing board. I would have lots more to say, but I have at least come to the conclusion that comparisons to medicine or dentistry are not generally available, except on some distinct points.

 

Now, can the experienced contributors finally solve the A2J crisis, at least by the end of this second page of the thread...?

 

Two points.

First, I'm not sure how fair it is to extrapolate my points here into other areas of legal aid heavy law. I know I do that myself, often, but I think the mix of available clients is different. Based on my very limited view I think immigration and family lawyers tend to get a better mix. I could be wrong, but that's my impression at a distance.

 

Second, please keep in mind that despite the fact that I tend to speak as though I have the final word on this topic when I'm on LS.ca, I'm still a relatively recent call (though it's more "relative" with each passing year) and I'm newish at this sole experience. In LS.ca terms I'm very senior. In overall practice, not so much. So there may be more to this than I'm seeing. Certainly I have my own ideas of what I'd like to do, in time. I don't want to make it seem desperate. I love my job, and I don't feel at all desperate. But I also don't want to pretend it's easy, either.

  • Like 1

Share this post


Link to post
Share on other sites

First, I'm not sure how fair it is to extrapolate my points here into other areas of legal aid heavy law. I know I do that myself, often, but I think the mix of available clients is different. Based on my very limited view I think immigration and family lawyers tend to get a better mix. I could be wrong, but that's my impression at a distance.

My impression from hearing from more senior lawyers in those other areas, there has to be a better mix or you sink, because there are very few non-crim legal aid certificates, relatively speaking (with the possible exception of refugee hearings, which LAO now pre-approves by area of provenance and by perceived odds of success--a someone problematic replacement of the role of the ultimate decision maker).

 

Second, please keep in mind that despite the fact that I tend to speak as though I have the final word on this topic when I'm on LS.ca, I'm still a relatively recent call (though it's more "relative" with each passing year) and I'm newish at this sole experience. In LS.ca terms I'm very senior. In overall practice, not so much. So there may be more to this than I'm seeing. Certainly I have my own ideas of what I'd like to do, in time. I don't want to make it seem desperate. I love my job, and I don't feel at all desperate. But I also don't want to pretend it's easy, either.

Hail to the King! I recognized that in the broader discussion about A2J solutions, there are other differing perspectives that might enlighten my thinking further. From a practical standpoint, however, your level of experience is right up there in terms of relevance to soon to be or newer calls (albeit not criminal law bound).

Edited by cluj

Share this post


Link to post
Share on other sites

I'm glad there's discussion among people in the know about legal aid and criminal defence work, and legal advice in the criminal context is very/most important.

 

But in the civil and family contexts (and arguably moreso in the latter, at least if relating to child custody?) there's a huge need. If someone is sued even in small claims court for $25K (or even a fraction of that), it can be a huge deal for them. As well as advice outside the litigation context, e.g. my employer wants me to change to contractor status is this agreement they've provided me with reasonable? My neighbour is complaining about something. Etc. And improved legal aid rates do nothing for this.

 

At some larger small claims courts offices there are legal clinics/small claims court duty counsel, I think the last one I saw (this is from memory) limited their services since it's through PBLO, of course, so not exactly helpful to those outside their limited ambit of low-income and other criteria. And there were if I recall no printed copies of any of the publications the AGO has on their website about small claims court matters (though I have seen other offices with copies available). I've heard people having difficulties with the registry (sometimes as simple as an affidavit needing to be sworn), seen them in court messing things up, etc., and it's the kind of thing that I could help them with in a few seconds and I'd like to (e.g. an affidavit), but even with seeing ID and acting strictly as a notary or commissioner of oaths (and not as a lawyer), the risks of it coming back to haunt me are too great (i.e. they say they though I was giving them legal advice...). It's like A2J means only offering services to low-income people through recognized programs (and you're protected, LSUC rules allow summary advice and exception to know your client rules).

Share this post


Link to post
Share on other sites

Necroing this thread since posting about access to justice ( A2J ) and another piece (Slaw has a summary of an article on SSRN) by Ken Chasse who I started it with.

I think he's a bit idealistic/impractical, but I also thought Malcolm Mercer's response inadequate in this recent exchange in Slaw (new piece by Chasse). While I don't agree with everything Chasse writes, I agree with his overall point about the profession/LSO failing to act.

http://www.slaw.ca/2019/07/25/law-society-policy-for-access-to-justice-failure/comment-page-1/#comment-950303

Chasse argues in part that lawyers earning money and access to justice for the public is not a zero-sum game (he doesn't call it that), that the LSO could/should have pursued policies that would help ensure lawyers continue to earn while access to lawyers was affordable (including using a public defender model rather than legal aid certificates as more efficient).

Share this post


Link to post
Share on other sites
On 8/6/2019 at 1:44 PM, epeeist said:

(including using a public defender model rather than legal aid certificates as more efficient).

I actually think this has a lot of potential and should honestly be explored. At least in Ontario, we stay away from the public defender model on an idea that the client should be able to use the lawyer of choice. And I see the benefits of this, but honestly - there's very little meaning to the 'lawyer of choice' because most legal aid clients are just picking a name off of a list. And I've rarely if ever seen a client who doesn't qualify for a certificate and who instead gets duty counsel help complain that the duty counsel who assists them isn't their lawyer of choice - they're all just happy to have a lawyer.

Share this post


Link to post
Share on other sites
On 8/8/2019 at 7:34 AM, darkangel45422 said:

I actually think this has a lot of potential and should honestly be explored. At least in Ontario, we stay away from the public defender model on an idea that the client should be able to use the lawyer of choice. And I see the benefits of this, but honestly - there's very little meaning to the 'lawyer of choice' because most legal aid clients are just picking a name off of a list. And I've rarely if ever seen a client who doesn't qualify for a certificate and who instead gets duty counsel help complain that the duty counsel who assists them isn't their lawyer of choice - they're all just happy to have a lawyer.

LAO has a very limited "public defender" stable of lawyers--their Senior Counsel program. It's been obvious for the past few years that they're winding it down despite the obvious need for and success of the program. They publish annual reports. I think they had 20-something lawyers a few years ago, and now they're down to 11. I know some of the lawyers--one particularly, in Toronto, who's excellent. 

The reason they're gradually shuttering it is because it's more expensive to fund the program than it is to grant clients certificates. Yet the reason the program exists is because those lawyers are largely representing clients who can't get certificates (i.e. they're not "legally eligible"). 

Let me pronounce authoritatively on this subject: the best service model is Duty Counsel doing simple pleas and adjournments and diversions, private counsel doing complex matters where certificates can be issued, and a 20-30 strong panel of LAO "public defenders" providing full representation to poor (financially eligible) clients who can't afford counsel and can't get a certificate. All it would really take to put a serious dent in the number of self-rep poor people leaning on DC for guilty pleas (when they should be setting trials) is a $5 million-ish investment. LAO made that investment five years ago, but now it's getting peeled back. 

 

  • Like 1

Share this post


Link to post
Share on other sites
On 8/9/2019 at 1:52 PM, KingLouis said:

LAO has a very limited "public defender" stable of lawyers--their Senior Counsel program. It's been obvious for the past few years that they're winding it down despite the obvious need for and success of the program. They publish annual reports. I think they had 20-something lawyers a few years ago, and now they're down to 11. I know some of the lawyers--one particularly, in Toronto, who's excellent. 

The reason they're gradually shuttering it is because it's more expensive to fund the program than it is to grant clients certificates. Yet the reason the program exists is because those lawyers are largely representing clients who can't get certificates (i.e. they're not "legally eligible"). 

Let me pronounce authoritatively on this subject: the best service model is Duty Counsel doing simple pleas and adjournments and diversions, private counsel doing complex matters where certificates can be issued, and a 20-30 strong panel of LAO "public defenders" providing full representation to poor (financially eligible) clients who can't afford counsel and can't get a certificate. All it would really take to put a serious dent in the number of self-rep poor people leaning on DC for guilty pleas (when they should be setting trials) is a $5 million-ish investment. LAO made that investment five years ago, but now it's getting peeled back. 

 

I think the difficulty with the Senior Counsel program as it exists is that they typically take on extremely difficult clients. They aren't referred just clients who are financially eligible but not legally eligible - there must typically also be factors of vulnerability, most commonly mental health issues, and typically mental health issues of a pronounced nature. These types of clients and cases are infinitely more complex and time consuming than the average case, which likely contributes to why Senior Counsel seem less cost effective than a certificate.

 

Of course the other problem that none of this addresses is that LAO's financial criteria is laughably low. There's a huge swath of the population who aren't getting access to justice purely because they make over LAO's threshold yet no where near enough to afford private counsel.

Share this post


Link to post
Share on other sites
On 12/6/2016 at 9:42 PM, cluj said:

And it dawned on me that, in Ontario at least, but not in B.C., I can finally see how some mid-call criminal lawyers can survive on Legal Aid files. All of a sudden, I didn't like what I saw (generalized, and surely with exceptions): you're either a "shitty lawyer" pleading many defensible clients out; or you run yourself into the ground trying to have a sustainable practice, that is physically unsustainable for the lawyer in the longer term--and even that is possible only if you're quite astute on the business side

Interesting to return to this thread 3+ years later and see this comment (which rings truer each day). 

Share this post


Link to post
Share on other sites
1 hour ago, KingLouis said:

Interesting to return to this thread 3+ years later and see this comment (which rings truer each day). 

Getting paid for bail is sooooo overrated.

Share this post


Link to post
Share on other sites

I would just like to note that when my job involves doing a lot to make millionaires multimillionaires, multimillionaires centimillionaires, and so on, I expect to be paid accordingly. I'm not taking a rate cut because more neighbors want to be able to hire lawyers to argue over the height of their fences or how big a driveway should be. Yes, I understand that indigent criminal defendants and vulnerable persons post-divorce should be able to have some form of legal representation at a reasonable cost. But there is no political will to do that. I would note that the federal government is currently more interested in ensuring that marginal human rights issues have some legislative solution rather than more pressing issues pertaining to underfunded court systems. I'll never understand the opinion -- especially by legal academics who do not work my hours -- that private lawyers should bear the burden of providing access to justice on their own backs. Why should I be so concerned about the very people who villainize me as a "development lawyer"? I neither share their concerns nor do I want them implemented because I believe it will be bad for society (increasing housing costs, etc.). 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
Sign in to follow this  

  • Recently Browsing   0 members

    No registered users viewing this page.

×
×
  • Create New...