The Advisory: Volume 8, Issue 4, October 2010

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From the President

Regulatory Role Includes Active Participation in Justice System

By Rod Jerke, QC, President, Law Society of Alberta

AT A SPECIAL General Meeting on June 23, 2010, the Law Society was petitioned to discuss:

a) Changes approved by the Legal Aid Board with respect to the legal aid program, and

b) Funding provided to the Legal Aid Society.

After discussion among lawyers attending via video- and tele-conference in Edmonton, Calgary, Lethbridge, Red Deer and Hinton, two motions were passed.

The Benchers will consider the motions at their September 30 - October 1, 2010 meeting.

An Advisory Group was formed to give detailed consideration to the motions. A diverse group of leaders in the legal profession participated. The goal is to ensure that the Benchers have a clear and principled understanding of the issues behind the motions and the debate. The Law Society of Alberta regulates and governs the legal profession in the public interest. Because of that, the Law Society is committed to independence of the legal profession and promoting access to justice and has been actively involved in advancing the Legal Aid program in Alberta, and continues to do so. 

There are limits and constraints on what the regulator of the legal profession acting in the public interest can do with respect to a Legal Aid program or any program. 

The Law Society of Alberta and Legal Aid

The Law Society, under Section 4 of the Legal Profession Act, is a party to the Legal Aid agreement with the Minister of Justice and the Legal Aid Society of Alberta. Negotiations are under way to renew that agreement after its expiry in March, 2011. 

The Law Society is a party to the Legal Aid Agreement as it regulates the individual lawyers who provide client services through Legal Aid, whether those lawyers are employees of the Legal Aid Society or members of the private bar. 

That regulation includes protecting solicitor- client privilege, ensuring high ethical standards and competence on the part of all lawyers, and upholding and preserving the independence of all lawyers. 

The Law Society has no direct control over, or participation in funding the legal aid program. 

Finally, the Law Society has a more general role in ensuring and, wherever possible, enhancing access to legal services for all Albertans. This is expressed in the Mission of the Law Society: “to serve the public interest by promoting a high standard of legal services and professional conduct through the governance and regulation of an independent legal profession.” 

Access to Justice and Funding

The rule of law is paramount to the role of the Law Society, but the rule of law cannot be sustained without lawyers. Legal Aid provides access to independent lawyers for disadvantaged Albertans. This is a vital aspect of access to justice for those Albertans. 

The issue of that independence and the issue of funding are inextricably entwined. 

Those lawyers, and Legal Aid itself are funded from several sources, including Alberta Justice, the Federal Government, and the Alberta Law Foundation. (See table on page 6 which sets out the history of the significant funding sources.) 

Legal Aid Alberta’s Corporate Business Plan, 2010 – 2013, forecasts that funding from the Province will remain at 2009/10 levels for the next three years, but notes an overall revenue decrease because of decreased Alberta Law Foundation Funding. 

The amount provided by the Alberta Law Foundation (which is independent from the Law Society) varies from year to year. It is set by a statutory formula as 25% of the amount remitted to the Foundation by financial institutions as interest on lawyers’ trust accounts. 

The amount provided by the Province is set by Alberta Justice, which has recently considered the results of an extensive review of Legal Aid. That review includes certain recommended changes. The Minister of Justice said in a recent letter that she believes these changes “will help ensure that the provision of legal aid continues to be sustainable.” The Minister also pointed out that her government is providing “a grant of $53.8 million; a substantial amount which has been maintained in place since 2008/2009.” 

Legal Aid is accountable to all its funders to provide responsible and efficient use of this money. 

Access to Justice and Independence

In a free society, based on the rule of law, the courts determine the balance between the rights of the state and the rights of individuals within that state. This requires that the judiciary be independent, but also that lawyers be independent to properly serve their clients and the courts. As those lawyers are funded by Legal Aid, Legal Aid must also be independent.

If the judges, lawyers and Legal Aid are not thus independent, the individual client has not had true access to justice, and the rule of law has not been upheld.

The Law Society’s over-riding duty is to guard the independence of regulation and governance of legal services and to do so in the public interest. This does, on occasion, lead to steps to guard independence of individual lawyers, but only in the context of that duty.

The Law Society is, however, only one of several participants in the justice system, and cannot rectify deficiencies in the justice system by itself.

The Law Society takes its responsibilities very seriously, but in the end, appropriate funding, access to justice, and independence are all the responsibility of all Albertans.

Key Factors Identified

The Law Society has identified key factors related to the legal aid situation.

  1. Lawyers have expressed concern about the resources available to deliver legal aid services to Albertans who cannot afford the services of lawyers.
  2. The rule of law is important to all citizens in a functioning democracy because the justice system enforces the rule of law by mediating between the interests of citizens and the interests of the state, as well as among citizens with conflicting interests. Accordingly, access to justice is necessary in a functioning democracy, and the legal aid system provides access to justice for citizens without the necessary means to retain a lawyer.
  3. A properly functioning justice system, including a properly functioning legal aid system, is the responsibility of every citizen.
  4. The Law Society has an over-riding duty to guard the independence of the regulation and governance of legal services, and to do so in the public interest.
  5. As with other government funded programs, there are limited resources for legal aid, and that requires creativity in the delivery of all forms of legal aid services, including criminal law legal services.
  6. The justice system is large and complex and the Law Society controls only a narrow part of the system. Our function is important to the proper functioning of the justice system, and the Law Society takes seriously its responsibilities and acts on those responsibilities.
  7. Lawyers contribute to delivering legal services to Albertans in economic need, by providing pro bono services at no cost or at a discounted cost, and legal aid services at a cost lower than normal commercial value.
  8. The standards for professional responsibility for lawyers are the same, regardless of the setting in which the legal services are delivered.

Going Forward

  1. The Benchers have decided to focus the energy and resources of the Law Society on strategic goals. One of those goals is to promote access to high quality legal services. For legal aid that means: We have and continue to advocate for proper resourcing of a properly functioning legal aid system. 
  2. We require that lawyers are independent so they can provide proper legal services to their clients. 
  3. We need to engage the profession as ambassadors for the principles of independence of the legal profession and the courts, explaining those principles to diverse Albertans in a wide variety of settings.
  4. In the legal aid governance discussions currently underway, the principles articulated above and the standards of professional responsibility and competence required of all lawyers, form the underlying principles for our discussion of the issues.
  5. We intend to report to the profession on these activities of the Law Society. A report will be made following consideration by the Benchers of this important topic.

Why Legal Aid is Making the News Again

This issue of the Advisory explores why Legal Aid Alberta is making the news again in Alberta.

We have attempted to give voice to the differing perspectives in Alberta on the Legal Aid issues raised recently.

In Just Works: Lawyers in Alberta, 1907-2007, the history book written for the Law Society of Alberta’s centennial, the chapter on Legal Aid includes this perspective, which is still relevant today:

From 1970 to 1990, during the formative years of the Alberta Legal Aid plan, the Legal Aid Society was continually the object of interest of competing groups with competing goals, interests and service delivery models - the law society and the attorney-general, roster lawyers and legal aid clients; federal and provincial governments; the interests of cost-effectiveness or the preservation of the “judicare” system; the development of a poverty law program or the maintenance of traditional criminal and civil legal services offered by the private bar. The fact that the society carried out its mandate in such a milieu makes the Legal Aid Society of Alberta a unique organiziation…

We believe this unique organization and the issues it raises makes for a most interesting issue of the Advisory.

Two Motions Carried at Special General Meeting

 Two motions were proposed pursuant to Rule 33(2)(b) of the Rules of the Law Society:

  1. That the Law Society publicly advocate in the public interest for an adequately publicly funded Legal Aid system with a statutory foundation that is independent of the government.
  2. That the Law Society request that the Legal Aid Society immediately rescind the recent changes including the changes to the financial eligibility guidelines and the choice of counsel provisions.

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