Updating the quality standards for LAO-funded refugee and immigration service providers: feedback and next steps

Between November 18, 2013 and February 28, 2014, Legal Aid Ontario (LAO) held public consultations to receive input on its proposal to revise the quality standards for LAO-funded refugee and immigration service providers. In total, approximately 60 people participated, via:


This initiative is part of LAOs larger effort to ensure that LAO clients who are among the most vulnerable members of Ontario society receive consistently high quality legal representation. Similar quality standards projects are underway in the other areas of law served by LAO.


Background


LAO developed a single set of quality standards for all refugee-related work more than a decade ago. In the opinion of the Refugee Lawyers Association and other stakeholders, these standards are too weak in todays environment, and lack mechanisms to review compliance or take remedial action. They also fail to distinguish between appropriate levels of expertise and experience required for different kinds of cases.

LAO proposes that everyone who represents legally aided refugee and immigration clients meet the requirements of two separate sets of quality standards and comply with best practices guides for these standards. Lawyers would be assessed every three years to determine whether they continue to meet these standards.

Both proposed new standards are designed to:

  • help clients continue to access high quality legal representation

  • establish universal standards for all legal aid funded service providers, including:

    • private lawyers
    • staff lawyers and paralegals and
    • clinic staff with a refugee services agreement
  • identify the appropriate levels of expertise and experience required for different kinds of cases.


The new proposed standards: what they are and what they offer


The new proposed standards are:

  • A general standard for Refugee Protection Division and Immigration Appeal Division work as well as detention reviews and applications for humanitarian and compassionate consideration, pre-removal risk assessments, and danger opinions

  • An appellate standard for matters before the Refugee Appeal Division and the Courts.


Proposed improvements

Current standards

Proposed revised standards

  • One-time application to be on the panel
  • membership is indefinite, so long as member makes annual statement of continuing compliance.
  • Three-year term membership
  • Must apply to renew, and demonstrate continuing compliance with quality standards.

Single panel standard for all levels and types of refugee/immigration work.

Two quality standards one for first-instance RPD/immigration work, and a second, suitable for more experienced professionals, for appellate litigation.

Only for private bar lawyers acting on refugee/immigration certificates.

For everyone who provides legal aid refugee/immigration services, including lawyers on certificates, staff lawyers, paralegals, or professionals on a service agreement with a clinic.

Only broad quality service expectations.

Quality service expectations plus mandatory compliance with a detailed best practices guide.

  • Standards are general and unspecific.
  • Monitoring of compliance is difficult.
  • Standards are specific and detailed, including clear best practices obligations
  • Monitoring and assessment of compliance potentially less difficult


Feedback received


While responses ranged from opposition to any changes to the current standards, to full support for the draft presented, these themes emerged:

  • Support for term limits and splitting into panels for a general and an appellate panel.

  • Questions regarding the appropriate length of a term of panel membership. Some said three years is too long; others said it is too short.

  • Whether IAD matters should be included in the general or appellate panel.

  • Concerns regarding the proposed experience thresholds; the minimum number of cases every two years were problematic for most respondents. Other feedback:

    • Service providers outside the GTA, where the volume of work is relatively low, perceived the minimum number of cases as too high, and believed volume was unrelated to quality of work
    • Newer calls, lawyers in smaller communities, experienced lawyers with a proven track record who have reduced their refugee caseload, and clinic lawyers who maintain very mixed practices believed the mimimum thresholds were problematic.
    • The RLA proposed establishment of a number of cases as a qualification for empanelment, i.e., those who meet the numerical threshold might require less scrutiny of their work products.
  • Concerns that the standards do not do enough to address the most problematic issue so-called legal factories that take far too many cases annually. One alternative discussed was to cap the number of cases panel members are permitted to do in a given year, or at least use high volume as a trigger for investigation.

  • While it was not possible to track how carefully participants reviewed the quality standards prior to attending the consultations, it appears that many did not realize that a best practices guide is in fact part of the quality standards. This may be because a link to this Guide was only available online from the general panel standards area of the LAO website, rather than directly from the consultations page.

  • Those who did review the Guide generally agreed with the content. Other feedback:

    • Some said that it is unreasonable to expect counsel to follow all the Best Practices in light of the low tariff hours, i.e., 16 hours for RPD cases; 10 for H+Cs and PRRAs
    • Some suggested amendments to the specific requirements.
    • The RLA expressed concern that the Guide is largely limited to RPD matters.
    • Several respondents suggested development of a Guide for appellate work as well.
  • Concerns that the proposed minimum six hours annually for Continuing Legal Education in refugee and immigration law is too onerous; some suggested reducing it to three hours.

  • Questions regarding how LAO plans to manage the empanelment process and the process for removal. Other feedback included:

    • Concern that enforcement might be too weak or ineffective to make the standards meaningful.
    • Concern that the standards might be used to harass lawyers and require them (unnecessarily or unjustifiably) to have to establish their compliance with the standards
    • A transparent appeal process was proposed for those removed from or refused admission to the new panel.
  • A proposal that LAO include private bar representatives on the committee that reviews panel applications. Many also supported the idea of taking advantage of the knowledge and experience of Area Committees in reviewing prospective panel members quality of work.

  • Dissatisfaction expressed by experienced lawyers at the possibility that they might have to seek special consideration to meet the requirements of the general panel for RPD and immigration because they are mostly engaged in appellate work, or because they have taken on a reduced caseload.

  • Concerns that the standards may be a mechanism to reduce the size of the panel, resulting in insufficient private bar lawyers to serve the needs of clients.

  • Questions about the process for empanelment of newer members of the refugee bar, and the need for a compensated mentorship program to help these lawyers achieve the quality standards.

  • A number of creative proposals were presented for addressing the specific needs of newer calls, including the development of an entry exam.


Next steps


LAO will collaborate with the RLA and take into consideration the concerns and feedback received so far to develop a second draft of the standards. It will use this second draft as the basis for further consultation and development with the goal of finalizing and implementing the minimum professional standards for LAO-funded refugee and immigration service providers later in 2014.