Thanks for the increase, but we need more funds, legal aid provider tells B.C.
Society figures it requires up to $49 million more to retain lawyers and cover their costs
Despite receiving its biggest budget increase since 2002, B.C.’s legal aid provider says the province is beggaring lawyers, and higher fees are needed to keep the system going.
The Legal Services Society has released a briefing paper about the rates paid to lawyers (known as tariffs) that concludes tens of millions in increased funding are required to provide adequate compensation.
The LSS pays lawyers about $54 million annually in fees, but estimates it would require from Victoria between $26 million and $49 million more to bring tariffs into line.
Another $1.3 million to $2.4 million is needed for immigration lawyers’ fees, which are separately funded by the federal and provincial government.
The non-profit organization’s CEO, Mark Benton, said that he was happy to have received “the biggest increase in a generation” in February’s budget, but had to say it wasn’t enough.
Many lawyers providing services to the poor are doing it at a loss, he added — the tariffs too low for most to earn a living, and so low that LSS is having trouble attracting and retaining lawyers.
“The society is concerned the current tariff system isn’t sustainable without a significant change to how lawyers are paid and what they are paid,” Benton insisted.
“Basically, it’s a problem of inflation and comparability because the rates the government is paying for comparable services are so much higher ... the recent survey done by the Law Society indicates that what we are paying now doesn’t meet the operating costs of lawyers. Not surprisingly, we have more and more communities where we have to fly lawyers in, particularly in family cases.”
He said Attorney General David Eby has “made it clear that money for a general tariff increase wasn’t available ... but this is a sustainability issue for our business model.”
The society has been scrimping along on about $80 million a year and the NDP administration provided an extra $12 million in this year’s budget, promising another $26 million over the next two years.
Regardless, critics such as the Canadian Bar Association-B.C. Branch and others said that wasn’t nearly enough to provide the needed services much less give lawyers a belated pay hike.
And the society’s “Please, sir, I want some more” act comes as legal aid lawyers are stepping up their efforts to pressure Eby to increase rates, a burr between the bar and governments of different stripes for decades.
From 1979 to 1984, the rates ranged from $35 to $40 an hour.
In 1984, the Social Credit government’s Task Force on Public Legal Services chaired by Ted Hughes recommended tariffs be raised to “75 per cent of the fees an average lawyer would charge a private client of modest means.”
That would have required doubling the rates, and no one was going there.
By 1991, the tariff had risen to $50 an hour. Lawyers, however, withdrew services and the government boosted the hourly rate to $80. Since then, the rates have increased only once.
Current rates were set in 2006: a lawyer with less than four years’ experience gets $84 an hour, with four to 10 years, $88, and with more than 10, $92.
Still, most criminal services are delivered for a flat fee rather than an hourly rate. For example, lawyers get $100 for a minor offence bail hearing.
Complex, lengthy criminal trials are paid at the hourly rate and, to attract experienced lawyers, the LSS offers an enhanced fee of $125.
In unusually difficult cases, an “exceptional responsibility” premium is paid for lawyers who demonstrate “executive case management skills” to a maximum of $143 an hour.
Lawyers working on family, child protection and immigration cases are paid hourly up to a maximum number of hours for specific services; for example, 35 hours for general preparation.
By comparison, the government recently increased rates for Ministry of Children and Family Development lawyers to $135 an hour for removing children from their families.
That kind of difference in funding creates a serious perception of unequal access to justice and a particular inequity for lawyers who do both MCFD and legal aid.
“When I say it’s not sustainable, it’s not going to be able to go on forever with that kind of differential, or for much longer, I think,” Benton emphasized.
“There is a couple of problems with that: one of them is that resourcing one side so much more richly than the other makes it hard to see that the process is as fair as it should be. The other is it’s hard for us to attract lawyers to do that work when they can make 50 per cent more doing the work for the government — $135 compared to $84.”
The Legal Services Branch also pays better than legal aid for outside civil counsel, the briefing paper states, from $100 an hour for a lawyer with one year to a maximum of $250 for lawyers with seven years’ experience.
In Ontario, rates are stepped according to experience from $109 to $122, then $136 (in northern Ontario, those rates are $120, $135 and $150).
In Newfoundland and Labrador, the steps are $120, $125 and $135.
The average annual earnings for B.C. legal aid lawyers range from a low of $18,370 in immigration law to a high of $46,300 for criminal law; the median is $8,900 and $25,000 respectively.