Despite plans to do otherwise, Legal Aid Ontario and the Criminal Lawyers’ Association are adopting a slower approach to the block-fee pilot project as defence counsel express lingering doubts about any expansion.
The memorandum of understanding signed last January between the CLA, LAO, and the province contemplated a block-fee pilot phase beginning in May and using the most prevalent and least-complicated cases.
A block-fee system was supposed to be in place for all “standard criminal cases” by Dec. 31, 2010, under the agreement that brought the eight-month legal aid boycott to an end.
But Louis Strezos, chairman of the CLA’s legal aid committee, says his group is working closely with LAO to monitor the effect of the pilot project and notes there’s no chance of moving forward until they’ve had a chance to analyze the data.
“Block fees have proven to be a longer-term project than was anticipated under the [memorandum]. We’re still a long way from implementation. They are progressing, but it’s going slowly. And that’s not necessarily a bad thing because I think we all agree that it’s better to do it right than to do it fast.
“In terms of implementation, we’re still a long way away. The pilot project is geared to assessing the ongoing viability of block fees. Once we analyze the data, we’ll see what our options are and what the second phase might look like. At the same time, we don’t want to do this forever.
Governments need certainty, and our membership needs certainty, and we want to get this done.”
Many lawyers have found it hard to shake off suspicions about the system, which echoes one from legal aid’s past. Before 1995, the Ontario Legal Aid Plan used block fees for criminal matters until their replacement with the current hourly tariff.
Block fees are calculated based on the typical costs of defending charges so that differences in the amount of work involved average out over time. But Toronto defence counsel Reid Rusonik says the pre-1995 system gave lawyers an incentive to take advantage by not contesting charges.
“People would stack up pleas like they were going out of style. At each courthouse, you would have two or three pleaders who were making hundreds of thousands of dollars a year just pleading people. Hourly billing and capped billing put them out of business because it’s difficult to build up much of an account on a guilty plea, especially when you plead the person in the first week.”
But LAO insists it has quality assurance tools and protections in place to stop inappropriate billing, while Strezos says such concerns are precisely why he wants to move slowly.
“The difficulty with the averaging approach is if you have one foot in a burning fire and the other in freezing cold storage, your average body temperature will remain the same, but the extremes kill you,” he says.
“We are looking to develop a model that is reflective of the realities of criminal practice. We want a system that makes sense, is fair and efficient and that ultimately can meet the needs of delivering quality legal services to low-income Ontarians.”
Rusonik, however, says block fees could be damaging for lawyers who contest charges for clients. Although the pilot project didn’t apply to trials, LAO is considering introducing block fees for them in the second phase.
“You could resolve on a trial date but you can either do it without thinking it out and preparing or you can have it prepared for a full trial,” Rusonik says. “You can do less work but still bill the same. Our concern is it’s actually a cynical attempt to encourage more un-thought-out plea deals.”
Christopher Hicks, a partner at Hicks Block Adams LLP, says that while he fears the prospect of more comprehensive block fees, he has been encouraged by LAO’s responsiveness to some of the concerns.
Early on, for example, he had problems billing for block-fee matters when a client was also facing non-block-fee offences.
LAO originally forced him to wait until all the charges were settled before he could bill for the block fee, but that has now changed. “They’ve loosened that up,” he says.
“Now, if you have someone with an indictable offence, and they get a block-fee charge, then you can get a separate certificate and bill when it’s done. It’s gone from being very undesirable to being something that’s not such a big deal.”
Strezos, meanwhile, notes there have been some “bumps in the road” in the CLA’s relationship with LAO. In the memorandum, LAO promised to consult the CLA on the pilot project, which was supposed to apply to the four most prevalent and relatively straightforward summary-conviction offences: assault, theft under $5,000, mischief under, and breaches of court orders and bail.
But when the pilot project began last year, the CLA had no warning that LAO planned to include 53 offences. The two sides eventually negotiated the removal of 20 offences and a higher rate for two others
that remained on the list.
“It’s a new relationship, but we’re meeting regularly,” Strezos says. “We work collaboratively, and there’s full consultation. Ultimately, legal aid will decide, and our membership will react depending on the final outcome.
At the end of the day, the block fees, whatever number they may expand to, will ultimately be the system of publicly funded defence that the vast majority of accused see, and that’s a crucial issue. We trust legal aid hasn’t preordained anything.”
LAO didn’t respond to requests for comment by press time.
For its part, LAO says it’s working on the issue. “The full block-fee schedule will be implemented as soon as practically possible,” spokesman Kristian Justesen said in an e-mail.
“It is a priority for us, and we’re working as quickly as possible to analyze the data from the pilot so that we can move to Phase 2.”
For more on this issue, see "LAO introduces 'diabolically comprehensive' block fees: Conway."