Responses to recent media enquiries
LAO Letter to the Editor – Law Times
May 5, 2010
I would like to provide some additional background information and clarify some issues raised in the commentary ‘LAO introduces ‘diabolically comprehensive’ block fees: Conway’ that appeared in the Law Times on May 3, 2010.
Legal Aid Ontario (LAO) introduced a pilot program to pay lawyers, who are providing services for legal aid clients, block fees for the appropriate resolution of some of the most common criminal charges. The block fee is a single, fixed fee for most of a lawyer’s work on an eligible case. Block fees will replace the hours allocated by the regular criminal tariff on these certificates.
The pilot block fees program introduced on May 1st 2010, for private bar lawyers who provide service for Legal Aid clients, is the first phase of block fees for “standard” criminal cases. This phase will affect approximately 20% of LAO’s criminal certificates.
The transition to block fees raises significant and complex issues for LAO, criminal legal aid, the criminal bar, and legal aid clients. As a result, the first phase of block fee is a pilot or “learning” phase that is intended to help LAO, the bar, and others better understand the implications of block fees for clients, the bar, LAO, and the criminal justice system generally.
The Ministry of the Attorney Genera/Criminal Lawyers’ Association/Legal Aid Ontario Memorandum of Understanding (MOU), agreed to in January 2010, commits LAO to expand block fees to other “standard” criminal cases, including remaining summary cases and many indictable matters, in 2011. LAO designed the first phase of block fees to be a pilot or “learning” phase to help LAO, the bar, and others better understand the implications of block fees. The “learning” component of the first phase is specifically incorporated into the MOU between the Ministry of the Attorney General, Criminal Lawyers’ Association and Legal Aid Ontario.
Block fees do not take away hours or reduce payments to lawyers. LAO’s “price” for block fees includes a calculation on all the fees and discretion historically paid for most tariff enhancements available on summary matters.
The block fees paid for guilty pleas and stays/withdrawals are calculated at 95% of the average cost that LAO pays for these types of cases. The remaining 5% will be paid out to fund additional services for LAO’s most vulnerable clients including Aboriginal clients and clients with serious mental health issues and to provide a slight buffer to ensure the program remains within budget.
During the initial pilot phase of the block fee program, LAO will be paying a single, undifferentiated fee on block fee matters. Based on the results of the block fee pilot and following consultation with stakeholders, the block fee rates for the second phase of the program may be amended to include tier or experience increases.
For the pilot phase of the block fee program, LAO chose the approach of a single rate based on the amounts historically paid to lawyers for block fee-eligible certificates. Currently, more than 70% of the fees on block fee-eligible certificates are paid to tier 3 lawyers and as a result, LAO’s block fee prices are heavily weighted towards more experienced lawyers. Consequently, shifting to a tiered structure would only marginally increase fees for the highest tier lawyers and would substantially reduce fees for less experienced lawyers.
Moreover, block fees, by their very nature, reward experienced counsel who are best able to resolve cases quickly and appropriately. A simple, uniform block fee will help recruit and retain younger criminal lawyers to criminal certificate work because of its predictability and ease of billing, thus addressing a long-standing concern of the criminal bar.
Additional funding for block fees was calculated to incorporate the first two tariff increases set out in the MOU between the Ministry of the Attorney General, Criminal Lawyers’ Association and Legal Aid Ontario. The MOU commits LAO to five additional rate increases on block fees. Over this period, the fees for a guilty plea and withdrawals will increase more than 27% resulting in fees of approximately $870 for pleas and $1200 for stays/withdrawals.
It is important to note that the cases within the first phase of block fees generally represent LAO’s lowest cost straight forward criminal certificates. These cases are most suitable for block fees because they are high-volume cases in which most lawyers’ billings to LAO fall into a narrow, predictable range.
As part of the pilot, LAO is implementing new quality assurance tools for lawyers taking on these types of cases. The new tools include a requirement for lawyers to provide information about the outcomes or dispositions of their cases covered by the block fee program.
The second phase of block fee cases will address more complex and higher cost certificates. The fees paid for these cases will be higher and the block fee structure more complex. LAO is committed to ongoing consultation with the Criminal Lawyers’ Association on block fees.
Complete information, including rates, types of charges, and a detailed questions and answers about the Block Fee program for private lawyers who provide services for Legal Aid Ontario clients are available on our website at: www.legalaid.on.ca.
Vice President and General Counsel
Legal Aid Ontario
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