Legal Aid Ontario has launched a new special rate for lawyers who handle its most complicated cases in a bid to keep senior counsel accepting legal aid certificates.
LAO promised to develop a rate policy for complex cases as part of the memorandum of understanding it signed in January 2010 with the Criminal Lawyers’ Association and the Ministry of the Attorney General to bring the eight-month legal aid boycott to an end.
On April 1, it finally launched the policy following months of consultation with the CLA.
At $129.81 per hour, the tariff is 16-per-cent higher than the top rate available under the old three-tier system. Over the next four years, it will rise in stages until it reaches $161.05 in 2015.
All first- and second-degree murder cases are automatically complex cases, but to get the higher rate, lawyers must first become members of a new panel established by LAO.
Panel lawyers will be able to apply to receive the rate for other complex cases, such as drugs and gang prosecutions, as well as those involving multiple defendants.
Heather McArthur, a member of the CLA’s complex case rate committee, says she hopes the move will lure back experienced defence counsel who had given up on legal aid after years of concern about a lack of funding.
“The lawyers who were best suited to do these kinds of cases and to do them properly were essentially voting with their feet and walking away from the legal aid plan,” she says. “It was so inefficient they simply could not afford to do these cases.
The whole idea of having the enhanced funding is to try to get back those very experienced, very skilled counsel. And counsel at that level want to be able to assist in these complex cases because it’s where the stakes are the highest.”
In 2008, a report on large and complex criminal cases highlighted the same issue. It recommended a new legal aid tariff “that provides for ‘enhanced fees’ and for ‘exceptional fees’ as the anticipated length and complexity of the case increases.”
McArthur says the higher rate may even save costs in the long run because LAO will only admit the most efficient defence lawyers to the new panel.
All lawyers on the LAO’s existing extremely serious criminal matters panel will be eligible to apply to join, but LAO’s new policy says applicants must be able to demonstrate a track record of “the effective and efficient use of public funds” and “declining to pursue issues or proceedings that have no real prospect of success.”
LAO also reserves the right to make “discreet and confidential inquiries within LAO and the justice system” to assess the quality of the lawyer’s outcomes and asks members to reapply for their position on the panel every four years. In addition, they must commit to a mentoring program for younger criminal lawyers.
“At the end of the day, there’s a cost saving because very skilled, very experienced counsel are able to narrow the focus to issues of importance and communicate appropriately with the court and opposing counsel so that things don’t get bogged down and we litigate only on what matters,” McArthur says.
However, it will take time to assess whether the new rate is having the desired effect, she adds, noting senior counsel would still be taking a big pay cut when they accept legal aid cases. “It’s not just a big payday. There’s a lot of overhead in order to effectively litigate these cases.
Even at the enhanced rate, there’s still a large pro bono component built in if senior counsel are coming back to do these cases. They’re still essentially donating a large proportion of time because these rates are significantly lower than what they can receive privately.”
Apart from the deemed murder charges, LAO has laid out criteria for awarding the enhanced rate in other cases. To be considered, they must be accepted into its big case management program.
At that point, LAO will weigh factors, including the novelty of the issues at play, the length of the police investigation, the complexity of the Crown’s case, and the severity of the alleged offence, in judging whether to grant the rate for complex cases.
It will take some time to see how that works in practice and how many applications translate into additional funding, McArthur says.
She notes LAO had originally wanted to be able to challenge enhanced funding for murder cases before the CLA team convinced it to make it automatic. She expects that sort of dialogue to continue as the policy develops.
“We were concerned that you would get into this back and forth over which murders are or are not serious and we thought it added a whole layer of bureaucracy that we felt was not best for the defence bar, not best for the administration of justice, and not best for LAO.
We would have liked other charges to have been deemed but we all have to be cognizant that there is only so much money. From the CLA perspective, there’s still significant underfunding issues across the board, but this is a positive first step forward.”
At the same time, LAO’s new policy promises not to reject any applications without first seeking advice from the criminal defence bar.
“The [complex case rate] policy is one example of how our new relationship with the CLA can work toward ensuring better access to justice for low-income people in Ontario,” said LAO chairman John McCamus in a statement.
“LAO looks forward to further consultation with the CLA on matters of shared importance in order to continue to improve the legal aid system in Ontario.”