Optimism that Legal Aid Ontario’s final discretion guidelines and initiatives will improve the discretion request process has some Toronto criminal and family lawyers breathing a cautious sigh of relief this month as they wait to see how the
new guidelines unfold.
“Before the final guidelines, there were no guarantees that you would get discretion,” says Christopher Hicks, a founding partner of Hicks Adams LLP.
“So, it is a very progressive move by legal aid. The devil is in the details as they say, and we will have to see exactly how these new guidelines unfold. But, so far, it seems promising.”
LAO received feedback from criminal, family, and refugee lawyers about its discretion request process in May as part of several province-wide consultations it held.
The feedback showed lawyers were dissatisfied overall with how discretion is administered, were concerned about disclosure and eligibility for discretion payment, and felt tariffs were inadequate in certain areas.
The feedback also called for more case management and budget setting for mid-level criminal, and complex and costly family matters.
Discretion requests let LAO approve, under exceptional circumstances, lawyers’ written requests for additional pay above the hourly tariff rate. Lawyers who represent vulnerable clients, manage complex cases, or achieve extraordinary outcomes can apply for discretion pay under LAO’s current guidelines.
The most significant changes to the discretion process will include a pilot tariff pre-authorization in summary conviction trials and Child and Family Services Act status reviews, a case management program, budgets for costly, complex family and criminal law matters, and a review of how the tariff has evolved over time.
For criminal law, LAO is also expected to develop a case-management system around homicides, indictable appeals, and some mid-level cases by charge. Currently, cases often cost between $8,000 and $20,000 and are not eligible for LAO’s big-case-management budget.
Hicks says LAO’s current guidelines for discretion have been a problem in the past for criminal law firms involved in lengthy trials, adding he hopes the new case-management system under the new guidelines will help to alleviate those issues.
“If you have a big case, like a murder trial for example, it would go to legal aid’s big-case-management committee, who would typically set a budget, and generally speaking, everyone would be happy,” says Hicks. “But, the real problem becomes small jury trials because the old system was very much against those types of trials, which meant lawyers would do the work and then come hat in hand to legal aid. It was very harmful to us because legal aid’s margins were very thin.”
Hicks says LAO’s new guidelines appear to address those issues by allowing criminal lawyers to come to case management, present a position, and ultimately develop a budget.
“The regulations are still untested of course, but it is very encouraging,” says Hicks.
As for LAO’s pilot tariff pre-authorization in summary conviction trials, LAO is expected to ultimately authorize more hours on the certification in limited proceedings, meaning lawyers will not have to wait until they need discretion and will not be required to wait 60 days for payment.
Hicks says pre-authorization in summary conviction trials under the new LAO guidelines may be particularly helpful for criminal lawyers who were often burdened financially following unsuccessful discretion requests.
“Pre-authorization is particularly important because it would allow a lawyer to know exactly what they have to work with,” says Hicks. “I think people were doing summary conviction trials beforehand out of a philosophical necessity to do the very best they could for their clients, knowing that they would likely be killed financially.
“As lawyers, we will always put in more than is required of us, but now its seems we will at least know that we will get paid for it.”
Other changes under the new discretion guidelines will include consideration of disclosure, and whether all charges were withdrawn as a result of a lawyer’s actions in a criminal matter.
Adam Bernstein, a partner at Hicks Adams who participated in LAO’s discretion consultations earlier this year, says the volume of disclosure not being considered in discretion requests was one of the biggest concerns lawyers had during the consultation period.
“The volume of disclosure involved wasn’t even being considered at that time,” says Bernstein. “Now, it appears as though the volume of disclosure can be taken into account. This appears to be a step in the right direction.”
Still, Bernstein says he does have a few concerns about the new guidelines.
“What will happen to those cases that are less than $20,000 but more than a few thousand dollars?” says Bernstein. “If a case isn’t included in that mid-level case range, and the LAO plans not to consider it, I imagine that will be very frustrating for lawyers.
“I’d like to see it lowered to between $5,000 and $6,000 because I do think there are quite a few cases that fall in that range. But, I don’t want to prejudge. That may not be the case ultimately.”
Bernstein adds he also hopes LAO will take a “common-sense approach” in considering whether all charges were withdrawn as a result of a lawyer’s actions in a criminal matter during discretion requests.
“It’s a good step in the right direction, but there may be other factors involved where only one or two charges are left, despite the hard work and dedication of the lawyer,” says Bernstein. “While it’s comforting that they recognize the hard work of lawyers, I think maybe saying ‘all charges’ may be too confining.”
Hicks adds a more transparent appeals process to handle discretion disputes should also be considered under the new guidelines.
“The appeal process now seems very opaque, and we don’t really seem to know who is making the final decisions,” says Hicks. “I would suggest creating a type of tribunal where both sides (legal aid and the lawyer involved) could be heard from.”
The new guidelines will come into effect Oct. 15. More information about the guidelines will be publicly released next month.
Until then, Bernstein says he will remain cautiously optimistic.
“In theory, legal aid is saying all the right things,” says Bernstein. “But, time will tell. Really at the end of the day it’s about our clients and legal aid recognizing the work that we do for them.”
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