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Responses to recent media enquiries

LAO Newsroom

Lawyers billing daily and annual limits, LAO Hardcap

February 19, 2010


A number of media outlets have enquired about billings by lawyers to LAO for legal services provided to our clients, LAO billing policies, and limits. This response details our standards and practices.


Response


As per your request, below is the information that I have previously shared with other media outlets about billings by lawyers to LAO for legal services provided to our clients, LAO billing policies, and limits.

In 2008/09, LAO issued more than 117,000 certificates to clients whose matter required representation by a lawyer. As a result of the certificates Legal Aid Ontario settles more than 215,000 accounts for more than 4000 private lawyers who billed for work completed on behalf of legal aid clients. (Lawyers can bill periodically during the life of a certificate.)

Legal Aid Ontario (LAO) has clear mandatory billing requirements and regulations for lawyers who provide services for legal aid clients. The lawyers billing guidelines are detailed in the LAO "Tariff and Billing Handbook" available on our web site at:

www.legalaid.on.ca/en/publications/downloads/manual_tariff.pdf

There are daily and annual billing limits for lawyers who provide legal aid services.


Daily Billing Limits

Lawyers working on a legal aid matter can bill a to a maximum of ten hours per day of for professional services rendered to Legal Aid Ontario for work on a legal aid matter.


Annual Billing Limits

Lawyers who can accept legal aid certificates are limited in the fees they can bill legal aid for annually. Each lawyers annual billings for legal aid work in LAOs fiscal year are capped. As of April 1, 2004, the annual billing limit, regardless of tier level, is 2,350 hours a year. (See tier level details below)

There is a Hardcap: What are billing limits fact sheet on our website at: www.legalaid.on.ca/en/info/resources.asp.

In some rare circumstances, lawyers may request an exemption from the application of the annual billing limit if special circumstances exist. Request must be in writing and must provide sufficient details to support the request for an exemption. The decision to grant an exemption is that the discretion of the President and CEO of Legal Aid Ontario.

In 2008/09 25 lawyers of approximately 4,000 active LAO panel lawyers, approximately 0.6 per cent) reached their annual billing limit. Of these, 10 requested an exemption and 8 were granted by the President for reasons such as ensuring representation of clients with exceptional needs, such as persons with mental illness, large complicated cases, or unforeseeable circumstances that contribute to the lawyer exceeding the hardcap - law partner becoming ill in the middle of long trial.

Additional Information about LAOs Hardcap and Exemption request policy is avlaible on our website at: www.legalaid.on.ca/en/info/resources.asp.


Whats included in the annual billing limit?

Only the hours paid by LAO for work performed by an individual lawyer are included as part of their annual billing limit.

For example, if a lawyer acknowledges a certificate, but another lawyer performs the work for the Legal Aid client, the hours billed will be included in the other lawyers annual billing limit. Student or law clerk time is also excluded from hours allocated to lawyers annual billing limits.

There are two situations in which a lawyer's hourly billings for work completed by them on behalf of legal aid clients could exceed the annual limit without an exemption:

1) Hours billed for Protocol Cases not included in hardcap:
Lawyers who bill LAO for matters not covered by the hardcap - such as Protocol Cases - Protocol Cases are cases funded by the Ministry of the Attorney General and managed by Legal Aid Ontario - LAO manages close to 1000 of these cases a year - examples of Protocol Cases include:

  • To Cross-Examine a Witness/Complainant on Behalf of the Accused: the Crown can make an application asking the court to prevent a self-represented accused from personally cross-examining a witness/complainant.
  • Amicus curiae or 'friend of the court" - a court-appointed lawyer who ensures that the rights of an unrepresented client are protected.
  • O'Connor Mills or Third Party Records Applications: An accused person may seek access to the personal or confidential records of a complainant or witness. If that person is not eligible for legal aid, a crown may ask that a lawyer be appointed to represent the complainant/witness.
  • Rowbotham order: An order that the charges against an accused be stayed unless the Government pays for a lawyer to represent that person.

2) Automated billing and payment timing:
LAO has an automated system for paying lawyers for services provided to Legal Aid clients. In 2008/09, LAO issued more than 117,000 certificates to clients whose matter required representation by a lawyer.

As a result of the certificates issued our Lawyer Service and Payment Centre settles more than 215,000 accounts for more than 4000 private lawyers who billed for work completed on behalf of legal aid clients.

Lawyers accounts are processed as they are received through an online lawyers billing portal. On rare occasions, the timing between lawyers submitting a bill for work completed might precede their billing privileges being frozen as the result of a twice weekly scan to identify lawyers who have reached the hardcap.

Once identified as having reached the hardcap, lawyers' online billing privileges are frozen and they must then contact the Lawyer Service and Payment Centre to request an exemption from the hardcap in order to submit additional billings. Hours billed above the hardcap without an exemption may be recovered from the lawyer by Legal Aid Ontario.


Legal Aid Ontario Post Payment examination

Legal Aid Ontario has a rigorous Post Payment Examination process that reviews accounts to identify and adjust any billing errors that may occur. Each year we review more than 7500 accounts. Additionally, we have an Investigation Department that reviews and follows up on billing irregularities that may require additional clarification.


10 most hours billed by individual lawyers in 2008 -2009

  1. 3534 includes special exemption to provide compensation for 1267 hours of work completed in 2007 - 2008 but billed in 2008 - 2009
  2. 2851
  3. 2788
  4. 2649
  5. 2646
  6. 2610
  7. 2574
  8. 2543
  9. 2532
  10. 2527

I should point out these hours are for extraordinary situations that often involve long complicated matters that can take weeks and months to resolve and require Herculean effort to provide a complete defence.

The lawyers who are doing work on behalf of our clients are working very long hard days - they often spend most days in court and are required to do all their case preparation, briefing work, and client interviews necessary for a case in the evening, at night, and/or on weekends, outside of traditional court/working hours. This often requires they work a substantial number of hours a day for prolonged periods of time. If you consider that many lawyers involved in case work, work 9 hours days six days a week, you can see how quickly the hours add up.


LAO tier rates

As you may know, there are three different hourly rates, or tier levels, for lawyers, depending on their certified years of experience. The current tier rates are:

Tier 1 $77.56 per hour Less than 4 years experience
Tier 2 $87.26 per hour 4 years experience
Tier 3 $96.95 per hour A total of 10 years or more experience


Lawyers billing fast facts:

  • 117,000 number of legal aid certificates issued in 2008 -2009 LAO to clients whose matter required representation by a lawyer
  • 4100 number of private lawyers across the province accept legal aid clients
  • 2350 Hardcap hours - maximum number of hours annually lawyers can bill legal aid for providing service to our clients (without exemption)
  • 0.6 per cent percentage of the more than 4000 lawyers who billed legal aid Ontario in 2008-2009 that reached the hardcap.
  • 10 number of request for exemption from the hardcap
  • 8 number of hardcap exemptions granted by the CEO
  • 215,000 number of accounts settled by LAOs Lawyer Service and Payment Centre

For more information

For more information please contact:

Kristian Justesen
Manager, Communications and Media Relations
Email: justesk@lao.on.ca