Speaker's Corner: Should legal aid billings be secret?

Legal Aid Ontario is reconsidering its practices around transparency in light of the province’s recent Open Data Directive. This directive requires government data to be made public unless it is exempt on a handful of grounds. In working out how to comply with this directive, LAO is consulting with stakeholders, including lawyers.

The most controversial issue in these consultations involves a simple question: Should LAO release aggregate data about how much individual lawyers who take legal aid certificates bill for their work?

Many associations of lawyers  say no. The main arguments they offer are that releasing the data would violate the privacy of lawyers, that the information would lack context and be misleading and that it would lead lawyers to stop taking legal aid cases. None of these arguments really holds water.

First, would disclosing the data violate the privacy of lawyers? Recently, in Re: Ontario (Health and Long-Term Care), the Information and Privacy Commission granted a Freedom of Information request for information about OHIP billings by Ontario’s doctors. The commission determined that disclosing yearly billings would not violate the privacy of doctors because these billings involve business information, not personal information. The commission then went on to find that even if it was considered personal information, a compelling public interest in disclosure outweighs any privacy concerns. This decision is currently undergoing judicial review, but if it is right and OHIP billings by doctors should be disclosed, then so should LAO billings by lawyers.

Second, would the data mislead the public due to lack of context? The relevant context is that the public may mistakenly believe that billings represent take-home compensation when, in fact, lawyers receive only a portion of the billings as compensation.

A related concern is that releasing easy-to-misinterpret data could decrease public confidence in the legal aid system. Of course, it is true that overhead (such as rent, staff, insurance) takes up a portion of lawyer billings, and that this portion varies depending on how lawyers structure their practices, the region of the province in which they practice, the types of cases they accept and so on. And it is reasonable to worry that some may use the data to give the public the inaccurate impression that lawyers are overcompensated for their legal aid work, which could erode public support for the legal aid system.

However, there is a simple answer for this: When LAO releases the data, the necessary context should be emphasized — and if lawyers feel that the context provided is inadequate, they should supplement it themselves. At a more general level, it is a bad idea to keep data on the use of public funds secret on the theory that this data may mislead the public.

As the Supreme Court put it in Merck Frosst Canada v Canada (Health), “refusing to disclose for fear of public misunderstanding would undermine the fundamental purpose of access to information legislation. The point is to give the public access to information so that they can evaluate it for themselves, not to protect them from having it.”

Third, would disclosing the data lead lawyers to exit the legal aid system, thereby limiting access to justice? Admittedly, some lawyers who were already considering changes to their practices might well exit the system and point to this as the reason. But, realistically, their numbers would be small.

Moreover, there are many young lawyers out there who would love to build legal aid practices in their place. It is also worth noting that many other players in the publicly funded component of the legal system are subject to similar forms of disclosure. Judges, Department of Justice lawyers, LAO staff lawyers and university law professors all have their salaries disclosed publicly, and we haven’t seen a decline in the number of people interested in these positions.

There are also many advantages of disclosure.

Simple transparency and accountability in how public funding is used are key benefits. The data would also be useful for legal scholars studying access to justice. For example, it would enable researchers to look at questions such as: How much money does LAO pay to lawyers who are subsequently found to have committed professional misconduct? Or, is there a correlation between high LAO billings and success rates in cases? The information would also be helpful when there are public debates about the legal aid system because the financial interest that individual lawyers have in the existing system is relevant in these debates.

Most would agree that there is an access to justice crisis in Ontario. Lawyer compensation is obviously an important factor in that crisis. In this context, instead of fighting against disclosure of LAO billings, lawyers who take LAO certificates should be clamouring for enhanced transparency and accountability for lawyer compensation, whether in the public or private sector. Lawyers’ associations should be doing everything in their power to increase the availability of data that could kick-start conversations about why compensation in the legal profession is skewed so dramatically in favour of lawyers who represent the wealthiest individuals and corporations — and against lawyers who work with the most vulnerable and marginalized members of our communities. These associations should also embrace releasing data that could enhance accountability for the small minority of lawyers who may be abusing the legal aid system and the marginalized clients that they are supposed to serve. And LAO, which has a broad mandate to enhance access to justice in Ontario, should be doing the same.

---

Sean Rehaag is an associate professor at Osgoode Hall Law School, specializing in immigration and refugee law and access to justice.