Private retainer for bail practice memo

In response to LAO’s decision to remove bail hearing, bail variation and second bail hearing from authorizations on Block Fee Certificates, a question has arisen as to whether you may charge a client a private retainer for bail prior to acknowledging a legal aid certificate. LAO has been asked whether we can provide some additional guidance on how issues of eligibility or set off may be applied in the event that you have been privately retained for bail.

The rules have not changed

LAO wishes to clarify that the decision to no longer fund block bail hearings does not affect LAO’s longstanding billing and compliance rules. LAO’s rules for client eligibility have not changed. LAO’s rules regarding private retainers have not changed. LAO’s rules regarding requesting or accepting monies in addition to payment on the certificate have not changed. The rules for private retainers apply equally to Block Fee Accounts upon which bail blocks are no longer authorized and hourly tariff Accounts where bail hearings continue to be authorized.

Amounts paid on private accounts submitted to clients who later receive a legal aid certificate may be deducted from the lawyer’s legal aid account if the fees paid are unreasonable or overlap the services provided on a legal aid certificate.

Once you acknowledge a legal aid certificate, you are prohibited from accepting any payment or gift from the client in addition to the fees and disbursements allowed for the legal services or disbursements in connection with the proceedings authorized by the certificate.

Section 44(1) of the Legal Aid Services Act and the General Terms and Conditions for Panel Lawyers strictly prohibits anyone who provides legal aid services from requesting or accepting payment or any other benefit from or on behalf of a legally aided client for services

Clarification: overlap and reasonableness

For the purpose of clarification:

overlap occurs when private retainer services are conducted after the effective date of the certificate;
privately paid amounts up to $1,000 prior to the effective date of the certificate will be deemed “reasonable” and will not be subject to deduction or set off; Amounts greater than $1,000 will be reviewed for reasonableness and may be subject to deduction or set off;

Importance of the effective date

Each certificate authorizes you to perform legal services starting from a particular date, called the effective date. Lawyer Services and Payments pays for services provided up to one month before the effective date of the certificate, as long as you have not retained privately.

If you have acted for the client on a private retainer before the certificate was issued, check the effective date carefully before acknowledging the certificate. It is important to understand that by acknowledging the certificate you agree that the client is entitled to the benefit of legal aid rates and caps on fees starting from the effective date, not from the date of acknowledgement.

Funds received on a private retainer basis for work done after the effective date may be set off by LAO against fees otherwise payable to you under the certificate.

Clarification: receiving money from or on behalf of a client

For the purpose of clarification:

If you have received money from or on behalf of a client for services authorized, related or ancillary to the legal proceeding to which the certificate relates, such as a bail hearing, and any part of those services were performed on or after the certificate effective date, the money received should be deposited to your trust account and may be deducted from your account.
If private services, such as a bail hearing, were conducted prior to the effective date, you must disclose the private retainer and funds received to LAO, but you are not required to hold these private funds in trust for LAO for potential set off.

Disclosing private retainer when acknowledging a certificate

Disclosing private retainer when submitting legal aid account

If you have been retained privately by the client prior to (or after) the effective date, for authorized, related or ancillary services such as bail, you must declare the private retainer in your online account. Your legal aid account must include a copy of the private account to the client showing the services provided, the dates and times of those services and indicating the amount that was charged to and paid by the client.