The Advisory: Volume 8, Issue 4, October 2010

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Agreement Directs Law Society’s Interest in Legal Aid Governance

By Kirk MacDonald, Chair, Legal Aid Alberta Board

(Excerpt of Remarks made at Special General Meeting, June 23, 2010)

I DO WANT to speak about how we (the Legal Aid Board) got to the position that we did and why we reduced the financial eligibility guidelines.

The federal government’s contribution to us has been maintained, more or less, at $10 million a year since 2004 and 2005. They have not upped it. The Alberta Law Foundation’s funding has gone up and down like a yo-yo in response to the economic boom and mini-bust that we’ve had (i.e. $5.5 million in 2006; $14.8 in 2008; $5.9 in 2009; and $1.4 million in 2010). The provincial government has, in fact, doubled up its contribution since 2004 and 2005. Their contribution then was roughly $20 million, and now it’s $43 million.

The problem was the Alberta Law Foundation shortfall. We saw that coming this past year, and we had to do something about it. And there were a number of options before us. I can tell you that the former chair, Colin Kloot, did go to the Minister and say, “Look, we need more money.” And he was told that no more was forthcoming. We had to live within our budget.

And so some hard choices were put before the board. Our governance agreement – to which the Law Society is a signatory – is very plain: we are required to administer the Legal Aid Plan within the scope set out in the governance agreement and within the financial means available. And if there was no more money forthcoming, we had to make some hard choices.

One of them was to retrench totally from any services that we did offer that weren’t specifically set out in the governance agreement, but that would have meant cutting all sorts of programs such as duty counsel, Family court services, the Central Alberta Legal Clinic, and the Siksika clinic down near Calgary.

We got a very, very clear message from our stakeholders – from the bench, in particular, but from the government as well – that that would not be welcome.

There were another set of choices that were available to us, and they weren’t palatable either. These were measures such as clawbacks from counsel on payments, cutting back on the remuneration in the tariff, and further cutting back on the services we offer.

And so we came to the last one, which was simply to scale back the financial eligibility guidelines (Guidelines). We had expanded them in the last couple years. We realize that they were previously awful (meaning far too low) as far as capturing people who needed our services, and consequently we had raised them. However, the current financial climate and our funding shortfall lead us to pick that particular option.

We are required by the governance agreement to get the Government of Alberta’s approval for our budget from year to year, and for our three-year business plan. But it is and was the Board’s decision to decide to cut back the Guidelines, not the government’s or Alberta Justice’s.

Changes made by the Board Regarding Choice of Counsel

With regard to the changes that were made by the Board to choice of counsel, these were, in part, dictated by the financial problem that we have. And we realize that we are, again, potentially turning people away who need advice and assistance.

Following the recommendations of the report (the Legal Aid Review) that we had last fall, we have tried to reorganize ourselves so that if a person is not getting a certificate, then they might be getting a limited certificate. If they’re not getting a limited certificate, they might get duty counsel or extended duty counsel. If they’re not getting that, then they may get advice from us through our Legal Services Centre. If they don’t qualify for that and we can’t give them advice, then we try to refer them elsewhere.

Limiting choice of counsel was a decision that the Board took. We altered that rule for two reasons. One, ours was the only plan in the country, that we’re aware of, that in fact enshrined choice of counsel in the rules. If you look at Ontario and BC, who have comparable plans to ours, they do not have choice of counsel in their rules.

Secondly, if economies of scale could be obtained by referring people with simple cases — and if we’re dealing with criminal cases, it’s the level one cases, the simple shoplift guilty pleas — to duty counsel or extended duty counsel rather than issuing a certificate and paying a roster lawyer, then removing choice of counsel for those cases was necessary. If we did not, then no savings from the use of staff counsel could be realized.

We are hoping that the Extended Duty Counsel program is going to produce some significant savings for us.

The other reason we made the change to choice of counsel is that, from time to time, we sometimes have an accused person (usually in criminal cases) who asks us to appoint a lawyer who is, in Legal Aid’s view, not an appropriate counsel (meaning too inexperienced) to be dealing with a significant and complicated case.

Since we are dealing with public money, it would be irresponsible of us to bow to the client’s choice in those circumstances. And yet we found that the rules, as presently worded, did not allow us to turn around and say: “It’s not appropriate for this choice of counsel to be honored.” This was also a factor in changing the rule.

We have had duty counsel both in family and in criminal cases for quite some time. The feedback we get from the courts has been very, very good. And I would suggest to you that there is no reduction in the quality of service provided to the client by referring people to them as opposed to a roster lawyer.

The governance agreement is such that, frankly, the Law Society is not in a position to dictate to Legal Aid and the Board that we should reverse measures that we have thought about carefully. The Law Society’s interest in the governance of legal aid is dictated by the governance agreement, and the Law Society is, respectfully, not in a position to say “yea” or “nay” to our decisions. The decisions we have made fall squarely within the powers given to the Board by the governance agreement.

On behalf of the Board, those are my submissions, thank you.

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