Legal Aid Advisory Committee Standard Criminal Cases Block

Legal Aid Advisory Committee Standard Criminal Cases Block Fees Duty Counsel October 27, 2009

What’s Driving Reform? Catalysts for Block Fee and Duty Counsel Reform • JOT – Need to Improve Efficiency/Effectiveness of Standard Criminal Cases, Improve Client Services • Need to Better Target Certificate and Duty Counsel Resources • Need to Improve Profitability and Quality of Certificate Work • Need to Improve Accountability for Public Spending • Need for Better Tools to Recruit and Retain Skilled Criminal Lawyers 2

Block Fees 3

Tariff Systems • Three basic types of legal aid tariffs: – “Time and line” systems. Model sets hourly rate but no cap on hours – Capped hourly systems. Model sets hourly rate and maximum hours – Block fee systems. Model sets fixed fees for specific charges or proceeding • Current LAO criminal tariff is capped hourly system • Most Cdn legal aid plans use block fees combined with capped hours • Block fees model based on “swings and roundabouts” – Some cases take longer to complete; some take less – Differences should average out over time 4

Block Fees – Advantages Block fees offer many potential advantages: • Promoting Early Resolution – Fees eliminate incentive for unnecessary appearances • Rewarding Efficiency/Higher Profitability for Lawyers – Efficient lawyers take less time for same result • Reducing Legal Aid Red Tape/Lower Admin Costs – For lawyers: Easier to administer, no detailed timekeeping – For legal aid plans: reduces administrative costs 5

Block Fees – Disadvantages Major disadvantage of block fees is the potential effect on clients: – Shirking • Profits maximized if less time spent on a case • Risk of lawyers cutting corners; jeopardizing client interests – Dump Trucks • Risk of inappropriate guilty pleas • Risk of perception and reality of “dump trucks” – Cherry Picking • Block fees discourage lawyers from taking “hard” cases • Could affect Aboriginal clients, clients with mental health issues 6

Block Fees In Ontario • Early 90’s: 80% of OLAP criminal cases funded through block fees • By 1996, block fees eliminated entirely in order to reduce costs and improve financial predictability • Why? – Uncontrolled billings – Dump trucks – Trial lawyers were making less $ 7

Block Fees - Issues • Mutual reliance and mutual interests: – LAO depends on small group of lawyers to serve clients, take majority of standard certificates – Small group of lawyers rely on LAO for large % of income • LAO needs criminal lawyers taking these cases to be good. They have significant impact on: – – • LAO’s ability to fulfill mandate Client services LAO’s criminal costs, quality and efficiency LAO’s overall ability to deliver services Obvious problems and missed opportunities: – Lawyer funding inadequate – Some lawyers paid $ hundreds of thousands with limited oversight, quality assurance – All criminal lawyers treated equally no matter quality, billings, or # of certificates – LAO doesn’t identify, reward or incent the “best” high-volume criminal lawyers 8

Block Fees – Objectives Justice on Target Block fees should promote early resolution and systemic efficiency Quality Block fees should promote/“incent” quality service and protect clients Reward Performance Block fees should reward efficient/high quality lawyers. Pay more for better client results 9

Block Fee – Structure Lessons from Other Jurisdictions: • Block fees should be simple and inclusive “fixed fees” that pays block fees for specified outcomes on limited number of charges • Should avoid complex model with multiple fees for different charges, activities or proceedings • Block fees should cover legal fees, common disbursements, and vast majority of discretionary requests • Should pay higher fees for better client outcomes 10

Block Fee – Case Selection Considerations: • Block fees cases should be comparatively simple, high-volume cases in which historic billings fall into common, predictable range. Potential Strategy: • Pay block fees for guilty pleas for some/all summary matters. • Block fees are possible for trials, more serious cases but “pricing” is more complex 11

Block Fees – Protecting Clients Considerations • • LAO has statutory duty to deliver high-quality services Incentives inherent in block fees risk client service through: – Shirking – Dump trucks – Cherry picking Potential Strategies • • Limit block fees to high quality lawyers Quality commitments in service agreement Peer review Measure outcomes Create extraordinary funding budget to compensate hard cases Permit Gladue tariff hours Lawyer interviews and client satisfaction surveys Monitor feedback from courts, agencies 12

Block Fees – Value for Money/Accountability Considerations: • • • Public agencies must meet higher standards ensuring value for money/accountability LAO pays significant sums to private lawyers with limited tools to ensure accountability and value for money Block fees have potential to reduce accountability unless positive steps taken Potential Strategies to Ensure Value for Money/Accountability • • • Quality assurance strategies New lawyer reporting tools Limiting block fees cases to eligible lawyers New block fee panel standards Service agreements Better monitoring of lawyers and costs 13

Duty Counsel 14

Duty Counsel • In 2008, duty counsel provided 1, 078, 703 legal assists • Duty counsel appear in criminal and family courts across the province, including more than 30 remote and fly-in locations. Duty counsel appear in both adult and youth criminal court. 15