The Law Society and the B.C. Branch of the Canadian Bar Association have hounded the government for a generation to properly fund legal aid with little effect.
With lawyers threatening a strike, honcho of the Legal Services Society Mark Benton was waiting for the next shoe to drop: Victoria still had not finalized his budget.
“Can’t worry about it, contingency plans, that’s the priority at the moment,” he said with a shrug.
“I found out last week (about the job action). So we’re scrambling a bit as we try to develop plans to address that if it happens. But we’ve had strikes before.”
Lawyers say they will withdraw services April 1, potentially leaving clients and criminal defendants without representation and the courts in chaos, if the government doesn’t dramatically increase legal-aid funding.
In a shakedown submission to Attorney-General David Eby on Feb. 15, the Association of Legal Aid Lawyers (A.L.L.) said the strike was necessary because the rule of law was threatened by the chronic underfunding of services for the needy.
They have seen a raise only once since 1991 — a 10 per cent boost in 2006, lifting the $80-an-hour tariff to an average of $88 an hour.
The 72-page brief suggested six options, ranging from a $27-million band-aid to adding $114 million to return support to 1990s levels.
The provincial contribution in 2017/18 totalled $76.5 million. To match 1994 funding, $208.2 million would be needed, the lawyers calculated.
They warned the beggaring of legal aid damages public confidence, imperils fair-trial rights and robs lawyers of the support and respect they deserve.
Benton emphasized fees were a core issue that needed to be addressed.
“I do think one of the pieces we’re watching is what is going to constitutes a positive response from government to the A.L.L. proposal,” he said.
“I don’t know, but I suspect there will be meetings (between A.L.L. and Eby) going on regularly over the next several weeks in an effort to avert this. The system largely relies on legal aid representation — both criminal and family — to keep rolling along. There is no question it will be a challenge to keep it moving. I’m not sure what the full effect will be.”
Seven years ago, Benton dealt with a partial service withdrawal by duty counsel, but that fizzled — and there hasn’t been a full-blown strike since the early 1990s.
Representing about 500 lawyers who do legal aid, A.L.L. said it wouldn’t make the same mistake as in 2012: “Those lessons have been learned. This job action will be neither nuanced nor limited.”
Benton said the non-profit would have to find resources, “fly in lawyers” and perform as much “triage as we can about who requires really emergency service.
“We’ve got people with serious legal problems who are highly marginalized and we will work to try to hook them up with a lawyer,” he explained.
“What we do is set priorities around services. Not surprisingly, the things that get the highest priority are things like domestic violence cases, where we want to make sure people get assistance right away. That takes priority over everything else.”
Child protection, too, was on the top tier.
“It involves people being separated from their kids, so we’re trying to make sure we place those or fly lawyers in to do those,” Benton said.
“We’re just in the early stages of doing that right now to see how we could sustain those services faced with a withdrawal of services from a majority of lawyers. It will take a few weeks.”
The economic case A.L.L. makes is persuasive, but, in the eyes of many, the lawyers lack moral authority and have scant political capital.
Horrendous systemic access to justice problems plague the courts — clogged dockets, interminable proceedings, archaic processes, sky-high costs …
The self-regulating profession has done little to address that access-to-justice crisis other than to pen compelling reports demanding more money that gather dust.
The Law Society and the B.C. Branch of the Canadian Bar Association have hounded the government for a generation to properly fund legal aid, with little effect.
In the aughts, after devastating cuts by former Premier Gordon Campbell’s administration, the profession screamed and stomped its feet — historically censoring then-Attorney-General Geoff Plant.
How have things changed?
In 2002, Legal Services Society funding was $88.8 million — a level of support that to keep pace with inflation and population growth would require $146 million today.
The threadbare safety net catches few other than the poorest facing criminal charges, family violence or the loss of a child to the government.
There has been little change and no meaningful response from the profession. At the Law Society’s annual general meeting, it balked at even accepting a laughable 10 hours a year in pro bono service.
Worse, they denounced plans to license paralegals offering cheaper services for families.
There are fewer lawyers than ever taking legal-aid files — about 1,500 were doing the work in 1991, but only 1,038 in 2017, notwithstanding that the bar grew from 7,201 to 11,668.
Adequate legal aid funding remains a will-o’-the-wisp and it is the neediest who pay the price of a life ruined or a family torn apart.
Still, no matter how righteous the cause, a showdown may not get the lawyers a pay hike — it may provoke measures the currently self-regulating profession will regret.
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