Private retainers and resumption of coverage for Refugee Protection Division (RPD) proceedings
Some legally aided clients entered into private retainers with panel lawyers for representation before the RPD between April 16, 2019 and August 16, 2019, when certificate coverage for that service was suspended.
LAO generally expects that these private retainer agreements will continue to be honoured. However, some financially eligible clients may be unable to meet the terms of the private retainer and may be required to return to reliance on legal aid funding for representation in their refugee claims before the RPD.
This memo outlines the issues and rules related to these private retainers.
LAO’s private retainer rules have not changed:
Amounts paid on private retainers are subject to set off if fees received are unreasonable on a private retainer basis, or the services provided overlap with the effective date of the legal aid certificate.
Lawyers must continue to declare private retainers in their online acknowledgement and in their online account(s) submitted for any new certificate.
If counsel holds remaining funds after billing for private services prior to the effective date, or has funds in trust for unbilled services provided after the effective date, these funds must be held in trust for the benefit of Legal Aid which will be set off from the amount payable to counsel.
For RPD proceedings certificates issued after the resumption of services on August 16, 2019, counsel must not accept a private retainer for RPD proceedings as this is a violation of s.95 of LASA. The only exception is where the certificate is cancelled at the client’s request.
Procedure to request RPD proceedings coverage for clients who were issued a Limited Disbursements BOC Preparation Certificate between April 16, 2019 and September 20, 2019
Where a lawyer entered into a private retainer with a client who held a Limited Disbursements BOC Preparation Certificate further legal aid coverage for proceedings before the RPD becomes necessary, the lawyer should:
- Upload the Basis of Claim form and Confirmation of Referral document to the BOC preparation certificate on Legal Aid Online under the “Certificate Amendment/Authorization” link
- When attaching the Basis of Claim form, in the “Add Comments” field, indicate the amount of the private retainer the lawyer has received from the client in the format “Private Retainer received: $XXXX.XX”
The Basis of Claim form and retainer information will be reviewed by LAO.
Client eligibility for further legal aid coverage
LAO will review the file and BOC to determine if there is sufficient legal merit and whether the client remains financially eligible. If there is sufficient legal merit, and the client’s financial eligibility is verified, a 9‑hour (non‑expedited) or 3‑hour (expedited) RPD proceedings certificate will be issued.
These certificates will be backdated automatically so their effective date matches the effective date on the client’s BOC preparation certificate.
Upon acknowledgement of the RPD proceedings certificate on Legal Aid Online, lawyers must declare the private retainer and indicate the amount received.
By acknowledging an RPD proceedings certificate, lawyers agree to terminate the private retainer and not collect any additional funds from the client.
If a certificate for representation in RPD proceedings is issued and acknowledged and the lawyer holds any remaining funds in trust after billing for private services provided or receives additional funds pursuant to the private retainer agreement, these funds must be held in trust for the benefit of Legal Aid, which will be set off from the amount payable to counsel.
Account billing and set off
Lawyers must also declare private retainers in online accounts for the RPD proceedings certificate and attach a copy of the private account(s) and a record of any funds held in trust to the Legal Aid Online account.
Funds received on a private retainer basis and transferred to their general account for work done on the RPD proceedings will be set off by LAO against fees otherwise payable to lawyers under the certificate.
Where a lawyer holds funds in trust for a client and the funds are set off, the lawyer will receive instructions from LAO on settlement of the account indicating that the funds can be transferred to the lawyer’s general account. If the amount of the private retainer exceeds the settlement of the final account, counsel will be provided instructions on the release of remaining funds to the client. Once counsel acknowledges the certificate, they are agreeing to bill in accordance with the Legal Aid tariff and all billing policies including discretion. Although client contributions are a criteria in determining discretion, counsel will not be granted discretion solely on the basis that the amount paid by the client exceeds the tariff maximum.
Please note that private retainers for RPD proceedings need only be declared on accounts submitted with respect to RPD proceedings certificates. In these limited circumstances, there is no requirement to declare a subsequent private retainer for RPD proceedings representation when billing services on a BOC preparation certificate.