LAO Newsroom

Responses to recent media enquiries

LAO Newsroom

Response to Lawyers Weekly

Wednesday, July 4, 2012


LAO's response to in enquiry from The Lawyers Weekly regarding discretion.


I am pleased to respond to your inquiries on behalf of Legal Aid Ontario (LAO). First, though, Id like to provide clarification on LAOs discretion payments and high quality services for clients. Your questions and LAOs responses follow.


Discretion background


Discretion is a compensation tool that allows LAO to approve, in exceptional circumstances, lawyers written requests for additional compensation above the hourly tariff rate. Lawyers who represent vulnerable clients, manage complex cases or achieve extraordinary outcomes can apply to LAO in writing for discretion pay.

To improve the process for discretion requests, LAO recently consulted with criminal, family and refugee lawyers in communities across the province. Between May 7 and May 25, 2012, LAO conducted a total of 26 in-person, web and telephone conferencing discretion consultation sessions. Close to 300 lawyers across the province participated in the consultation process.

The feedback from these consultations will help LAO develop guidelines that make the discretion request process clearer for lawyers. Once revised, these guidelines will also ensure fair and effective stewardship of public funds in providing legal services to legal aid clients.

Get more information on the discretion consultations on the LAO website.


Discretion fast facts


  • 90.5% of certificates are completed within tariff meaning no discretion or additional funding was requested
  • Discretion is requested on only 9.5% of certificates
  • Two hours is the most frequently requested number of discretion hours
  • Total certificate payments to lawyers in 2010-2011 was $117 million. Of this, approximately $12 million of discretion was paid to lawyers in 2010-2011:
    • $6.5 million criminal
    • $4.5 million family
    • $600,000 on refugee
    • $400,000 on civil
  • $840 represents the average discretion payment per certificate where total fees are less than $10,000
  • 70% of all certificates pay $840 or a less discretion
  • 25% of all discretion requests were for less than three hours
  • 15 to 30 minutes is the average time it takes to review and process a discretion request

High quality services for clients


LAO believes that the vast majority of lawyers provide high quality services to clients. LAO has put measures in place to ensure that legal aid clients continue to receive high-quality service from their lawyers:

  • Service providers are required to forward detailed information on all outcomes and appearances when they submit their bills for block fee accounts (fixed fees LAO pays lawyers for most of their services for eligible criminal cases).
  • We have put tighter controls on Legal Aid Online (LAO's billing portal), to prevent practices such as the modification of service dates.
  • LAO has developed new audit, compliance and panel management practices, including information verification systems, to make certain lawyers comply with applicable LAO policies and procedures
  • To ensure that lawyers maintain the highest possible quality of representation, LAO requires lawyers who work on a certificate to apply for admission to a panel that governs that particular type of law, and meet its standards. LAO's panels include family, criminal, refugee, Gladue (Aboriginal court), extremely serious criminal matters, consent and capacity board and duty counsel.
  • Lawyers who provide services for LAO clients have a professional obligation through the Law Society of Upper Canada to provide ethical, high quality representation.

1. Can any criminal lawyer represent a client on Legal Aid?

No. Lawyers who represent legal aid clients must belong to the Legal Aid Ontario panel(s) for the type(s) of law they practice. The standards for each panel provide the minimum experience and professional development requirements that lawyers must meet. Panel standards help ensure that legal aid clients receive high-quality services. Of over 20,000 licensed lawyers in Ontario in private practice, 4,000 lawyers are currently on legal aid panels.


2. What is the range of legal aids hourly rates?

LAO pays lawyers according to four different hourly tariff rates. Three of these rates are based on a lawyers tier level, based on certified years of experience. The fourth is the Complex Case Rate, for lawyers on the Complex Case Rate panel whose cases qualify.

LAO has no independent authority to establish the hourly tariff rate. It is established by the provincial government by way of regulation. In 2010, the provincial government established a seven-year schedule of tariff hourly rate increases, according to the chart below. These increases reflect a Memo of Understanding (MOU) signed by the Ministry of the Attorney General, LAO and the Criminal Lawyers association that committed LAO and the provincial government to provide seven rate increases between February 2010 and April 2015. Over the course of the MOU, the hourly tariff rates will increase by 41% to 66%, depending on the category of case.

 

Revised Tariff Rates

Effective

Feb 1, 2010
Year 1

Apr 1, 2010
Year 2

Apr 1, 2011
Year 3

Apr 1, 2012
Year 4

Apr 1, 2013
Year 5

Apr 1, 2014
Year 6

Apr 1, 2015
Year 7

Lawyer Rate Tier 1

$81.44

$85.51

$89.79

$94.28

$98.99

$103.94

$109.13

Lawyer Rate Tier 2

$91.62

$96.20

$101.01

$106.07

$111.37

$116.94

$122.78

Lawyer Rate Tier 3

$101.81

$106.90

$112.24

$117.85

$123.75

$129.94

$136.43

Complex Criminal Case Rate

$120.02

$124.82

$129.81

$135.00

$141.75

$148.84

$161.05

Legal Aid Ontario also pays lawyers block fees for some of the most common criminal charges. A block fee is a single, fixed fee or price for most of the lawyers work on an eligible case. Approximately 71 per cent of criminal cases are paid through the block fee program. Legal Aid Ontario consulted with legal stakeholders, including the Criminal Lawyers Association, on this program. There is a component of discretion rolled into all block fees.


3. When was the last increase in legal aid rates?

As indicated in the chart above, the last increase to LAO hourly rates paid to lawyers was on April 1, 2012. Since 2010, LAO has implemented four of seven scheduled MOU hourly tariff increases, resulting in tariff increases of 22% to 39%, depending on the category of case.


4. How does legal aid determine how many hours it will recompense lawyers for? For instance, is there a set number of hours considered the standard for each type of trial/offence/plea? Can you provide a list outlining all the different rates?

The Government of Ontario establishes, by regulation, the legal aid tariff hourly rates and the maximum number of hours that Legal Aid Ontario pays a lawyer for specific types of proceedings for lawyers who provide services to low-income clients. The tariff rates and hours are available in the Legal Aid Ontario Tariff and Billing handbook.


5. If a lawyer ends up going over the set number of hours, how does legal aid determine how many of those extra hours it will reimburse the lawyer for?

A lawyer whose billings exceed the legislated tariff must request a discretionary increase. The onus is on the lawyer to demonstrate that the exceptional circumstances discretion test pursuant to the Legal Aid Services Act has been met. Once the lawyer has satisfied the exceptional circumstances test criteria and eligibility for discretion is established, Legal Aid Ontario staff (lawyers, paralegals and adjusters), will make a determination regarding the number of discretionary hours to be paid. This determination of the number of hours is based on the following:

  • What is usually billed for cases of similar type based on the experience of lawyer payments staff in processing discretionary accounts and the practice of law
  • The nature of the exceptional circumstances
  • What a client of modest means would pay

Staff make an assessment of the work done by a lawyer based on the information provided in the lawyers discretion request letter and detailed accounts.


6. Finally, what is your response to criticisms suggesting that since legal aid recently raised rates significantly, it has been working to cut costs in this other fashion, by reducing the number of discretionary hours it will recompense lawyers for?

Legal Aid Ontario will continue to pay requests for discretion that meet the exceptional circumstances requirement contained in the Legal Aid Services Act. LAO will also continue to pay the component of discretion rolled in to all block fees.

The discretion consultation process will help LAO ensure that we spend our limited resources effectively in support of clients and access to justice. We anticipate some cost savings as a result of clearer discretion criteria and a tightening of the discretion process.


7. From reading the document on the LAO website, I gather block fees are automatically used instead of the tariff system in certain cases. Is there a list of what types of cases where block fees are used?

Here is a link to the charges covered by the block fee program Block Fee List of Eligible Charges

As well here a few important points to keep in mind about block fees:

  • The block fee program pays for services that lead to specific client case outcomesguilty plea, stay/withdrawalon a number of common criminal charges. The fees paid for stays or withdrawals are higher than those paid for guilty pleas.
  • If a block fee-eligible matter is set down for trial, Legal Aid Ontario pays the account according to the hours allocated by the regular criminal tariff.
  • Block fee pricing is based on LAOs current costs for these criminal cases, and is subject to all relevant tariff increases.

8. You mentioned the "exceptional circumstances discretion test pursuant to the Legal Aid Services Act," but I was unable to find this in a quick scan of the Act... can you point me to the right section where I can find out what that test is?

You can read the exceptional circumstances discretion test online. The Legal Aid Services Act (LASA), Schedule 1 & 2, O. Reg. 107/99 reads as follows:

C. This Schedule is a legal aid tariff reflecting fees customarily paid by a client of modest means and except in exceptional circumstances the fees provided for shall normally apply for the described legal aid services, but,

  1. at the written request of the lawyer, the fees may be increased by the legal accounts officer if in his or her opinion an increase is justified, having regard to all the circumstances, including,
    1. the result obtained,
    2. the complexity of the matter,
    3. the contributions of the applicant or other contributors,
    4. the amount of time realistically set aside in anticipation of a lengthy trial which time was not otherwise filled by the lawyer, and
    5. any other relevant factor that would warrant an increased fee; and
  2. the fees may be decreased by the legal accounts officer if in his or her opinion a decrease is appropriate,
    1. under subsection 44 (2) of Ontario Regulation 106/99, or
    2. where and to the extent that the fees charged exceed the amount of fees that would be allowed if the fees of the lawyer were assessed under the Solicitors Act.

9. What is the difference between type 1 and 2 Indictable offences, as listed in the tariff document?

For the purposes of billing, the Legal Aid Services Act identifies two types of Indictable offences:

  • Indictable 1 all hybrid offences where the Crown elects to proceed by indictment. This also includes sexual assault charges regardless of Crown election.
  • Indictable 2 all indictable offences

10. Can I take your response to indicate that Legal Aid Ontario is actually working to clamp down on discretionary payments, not increase them as the lawyer I spoke with would like to see happen?

Legal Aid Ontario (LAO) has consulted with close to 300 lawyers across the province to gather feedback on discretion guidelines. This feedback will help us clarify the definition of exceptional, outline the criteria to be used by lawyers who request discretion, speed up payment of discretion accounts, and ensure we spend our limited resources effectively in support of clients and access to justice.

LAO will continue to pay requests for discretion that meet the exceptional circumstances requirement contained in the Legal Aid Services Act. LAO will also continue to pay the component of discretion rolled in to all block fees.


Questions

Kristian Justesen
Director, Communications and Public Affairs
Phone: 416-979-2352 ext. 4782
Email: justesk@lao.on.ca or media@lao.on.ca