University of Toronto Faculty of Law Prof. Michael Trebilcock concedes that if Ontario commissions any more studies of the Ontario Legal Aid plan, this will seriously antagonize the bar and be viewed as another attempt to indefinitely defer dealing with the problem.
The Report of the Legal Aid Review 2008 is the province’s third study since 1999. During this same period the total number of criminal lawyers accepting certificates has dropped by 14 per cent, and those accepting family certificates by a whopping 29 per cent.
The main issue for the bar is the hourly rate. The rates are currently $77.56 (0 – 4 years); $87.26 (4 – 10 years); and $96.95 (10 years +). The original philosophy behind the legal aid rates was affordability to the client of modest means. The current rationale is maximizing services within a limited pay packet.
There were no rate increases between 1987 and 2001. In 2000, former justice Fred Kaufman and Robert Holden’s report recommended rates of $105 to $140 per hour. But Trebilcock says such increases would not be feasible, fiscally or politically, because they would result in rates of $120 to $160 in 2007 dollars. I am not an actuary, but allowing for a further 3 per cent inflation, this might be $124 to $165 in 2008 dollars.
From 2002 to 2006, there were three five per cent increases, yielding a compounded increase of 16 per cent. This sounds reasonable, but because there had been no increases in the previous 14 years, there had been a serious erosion of the rates.
Trebilcock concludes that the 1987 base rate of $67 per hour would be $110 in 2007 dollars. Although he does not calculate the rate for the other two experience levels, Tier II would be an additional 12.5 per cent, or $123.75, and Tier III would be 25 per cent more than the base rate, or $137.50. That’s in 2007.
Let’s take it a step further. Using the professor’s base rate of $110, one can make calculations. Based on the formula “hourly rate for client of modest means” x “rate of inflation,” we can calculate what the three rates should look like in 2008, allowing for 3 per cent inflation. Zero to four years: $113.30; four to 10 years experience: $127.46; and 10 years experience: $141.63.
This means that Legal Aid Ontario presently pays lawyers only 68.5 per cent of what a client of modest means would pay.
Despite the fact that on first blush his report seems to recommend raising rates to $110 per hour, he resiles from taking that position. It would be fairer to say that he recommends a base rate not significantly lower than $110:
“. . . if the 1987 base rate of $67 had been adjusted for inflation it would have been almost $100 per hour in 2002 (and approximately $110 in constant 2007 dollars). Hence, a base rate significantly lower than this range
. . . seriously risks further attenuating the already tenuous and diminishing commitment of the private bar to the legal aid system and will exacerbate the unfairnesses and inefficiencies at present in the existing tariff structure.”
The lack of a regular review mechanism has been a concern for lawyers. He recommends vesting the authority to review the tariff solely with legal aid itself, but within its own envelope. The province would then review the size of that envelope every three years.
The system is not, as he puts it, in a state of “initial equilibrium,” because we are not where we once began, at the “client of modest means” test. He notes other problems: clients have to be significantly poorer today to qualify for a certificate, and there are recruitment and retention issues with duty counsel and clinic lawyers.
The bar is greying: the lawyers accepting the bulk of the certificates are the older lawyers. The public defender model proved to be too expensive for criminal law, with the three offices never generating more than two-thirds of their operating costs.
While Trebilcock does not say we are in a crisis, he clearly feels that one is looming again, and he recommends “urgent and immediate attention.”
His recommendation is to raise the tariff “significantly” in the immediate future. While he does not crunch the figures, perhaps because of their inherent lack of palatability, I am not so fastidious. So there you have it: pay the lawyers $113.30, $127.46, and $141.63 an hour. Those are the current rates for clients of modest means.
Rosalind Conway practises criminal law in Ottawa. She can be reached at [email protected].
