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Letter: CDLPA troubled by duty counsel expansion

|Written By Cheryl Siran

The County & District Law Presidents’ Association, representing 46 local law associations across Ontario that in turn represent nearly 12,000 practising lawyers, has been hearing more and more anecdotes from the private bar of a perceived encroachment by Legal Aid Ontario into what has traditionally been the realm of the private bar.

These anecdotes of evidence are too numerous to ignore and signal a troubling trend if true.

Although LAO denies (see “New duty counsel not public defenders: LAO,” Aug. 18) that the hiring of more senior duty counsel is a move towards a public-defender model, this denial is proving to be of little comfort to those lawyers on the front lines. We acknowledge that there are fewer certificates being issued as a result of the general trend towards lower crime rates, and this is fuelling some of the anxiety among members of the private bar who utilize legal aid certificates in their practice. But if this is true, why are more staff lawyers or duty counsel needed to fill unmet needs? Where is the evidence that needs are going unmet by the private bar?

Most troubling to CDLPA is the fact that LAO continues to make decisions on things like the hiring of more senior counsel without real and substantial consultation with the private bar. A general, high-level consultation consisting of a presentation to umbrella associations like CDLPA is simply not enough. Unmet needs, if they exist, will more often than not be the result of local circumstances. As such, local solutions can often be found. In regions across Ontario, this consultation and collaboration has not taken place and it is causing great consternation among the practising bar. Instead, the consultation normally consists of a meeting or a presentation about how and when a duty counsel will be hired and no opportunity is given to offer an alternative solution.

We acknowledge that the LAO is within its rights to hire senior duty counsel. We question why is it taking that approach. It is within this question that we think a common ground can be found on this matter. If a need can be demonstrated in a particular region and no viable solutions can be offered by the local private bar, then of course LAO should look internally for a solution. Establishing this local need and exhausting local private-bar options should be the first step. In our view — and the evidence supports this position — hiring additional civil servants, with the associated overhead cost (and, in particular, public-sector pension costs) should never be the first option for LAO. We believe a less expensive option will almost always be found among the private bar.

With the re-election of Premier Kathleen Wynne’s government and the subsequent passage of the Ontario budget, there will be new money flowing into the legal aid system in Ontario and this will go a long way to alleviating some of the financial pressures of this long underfunded system. However, the budget was just a number and a promise to build a new 10-year strategy for legal aid sustainability. We hope and trust that LAO will undertake a real and substantial consultation with the private bar in the development of that strategy. LAO has declared that they value the partnership with the private bar. That partnership must involve true consultation and collaboration on finding solutions to local problems.

Cheryl Siran, chairwoman,

County & District Law Presidents’ Association

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