LEGAL AID BATTLE LOOMS
B.C. lawyers are gathering Tuesday for a historic showdown over a crisis in the legal system triggered 16 years ago by former Liberal attorney general Geoff Plant.
The outcome of the annual general meeting of the Law Society of B.C. may very well serve to pass judgment on a generation of legal leadership that failed miserably to rise to the occasion — leaving anyone who uses the courts, but primarily the needy, to suffer.
The roughly 12,000-strong profession has not gathered with so much at stake since 2002, when the largest quarrel of lawyers in provincial history censured Plant for his policies, the first B.C. AG to suffer such ignominy.
Plant slashed legal-aid funding by more than 40 per cent, closed courthouses, eliminated the human rights commission, and embarked on a radical attempt to restructure what he considered an exorbitant, anachronistic institution.
The lawyers gleefully cheered their Harvardtrained peer’s humiliation and celebrated a supposed great victory for justice. But they lost the war. (And in hindsight, many came to agree with Plant’s gutting of a bloated legal bureaucracy.)
Successive governments continued to under-fund legal aid, and there has been little meaningful structural or procedural reform to modernize the system.
New NDP Attorney General David Eby, who throughout his years in opposition denounced the chronic underfunding of legal aid and the failure to deal with the clotted courts, was supposed to be the saviour. The bar may now regret getting its wish.
Like Plant, Eby believes he has the political capital to make fundamental change. And he is no wallflower attorney general. He is leading a massive ICBC makeover, a move to change our voting system, and the anti-moneylaundering initiative (even participating in an upcoming documentary).
Legal aid and the courts are actually his bailiwick, so who can blame him for wanting to seize the opportunity?
The profession’s response over all these years can be characterized as self-aggrandizement and hand-wringing about not getting the government money it deserved.
Two controversial resolutions at this year’s AGM have become lightning rods for these key concerns and have presented Eby with a golden opportunity to position himself as the public’s hero — not the bar’s.
One is a demand that the Law Society abandon its plan to establish family paralegals.
Eby has told lawyers he plans to attend the meeting and oppose the resolution, which is a case study of how a good idea can be perverted and stall change.
Nearly a decade ago, the regulator promised to open up the lawyers’ monopoly on providing legal services by licensing a new group of lessexpensive professionals who could do unsophisticated legal work that wasn’t worth the time and cost of a highly trained lawyer.
These paralegals, who exist elsewhere in Canada and in the U.S., were seen as a safety valve to relieve some of the pressure from the tide of selfrepresented litigants swamping the system.
They were to help people at tribunals, dealing with bylaw tickets, traffic fines, minor legal issues, pro forma appearances or navigating difficult administrative proceedings, things like that.
After half a decade of footdragging, that morphed into creating a “family law legal services provider,” not a generalist, and unsurprisingly family law practitioners are screaming foul.
Instead of broad relief for those who need some legal coaching and assistance, these “service providers” will undercut the lawyers — conducting client interviews, advising clients about legal options, acting as a mediator, preparing orders and appearing in court on certain matters.
Retired B.C. Supreme Court justice Peter Leask is leading the full-out assault on the proposal, saying it is ridiculous to deal with “access to justice by providing a secondrate service.”
Better funding is the answer, he said.
Of course. Eby will be shooting fish in a barrel.
The profession has been baying for more money and higher legal aid fees since Plant cut them off at the knees and they insist on banging their head against the wall.
Understandably, lawyers had hoped the NDP would finally answer their prayers and end what they consider beggarly rates of pay for legal aid work, but Eby has said clearly there is no money for fee hikes.
Although the family lawyers have a real concern, Eby will defend the Law Society’s proposal because it appears to address the problem while the bar defends its wallet.
At the same time, Eby told the lawyers he will not speak to a second related and far more divisive resolution that urges the Law Society to mandate that all lawyers represent legal-aid clients for free to ease the self-representation and funding dilemma.
The Legal Services Society has doused the proposal as impractical and wrongheaded.
“If passed, the resolution would create serious legal and administrative challenges ... and would undermine the work of the many lawyers who have dedicated their careers to helping legal aid clients,” according to Mark Benton, Legal Services Society’s CEO.
“It also has the unintended consequence of disparaging the work of the many lawyers who have dedicated their careers to legal aid clients. The most obvious concern is the assumption that every lawyer is competent to represent a legal aid client. Legal aid cases are complex, often lengthy, and our clients frequently face barriers such as mental health problems and substance abuse not seen in a typical law practice.”
Yes, the needy are doing far better on their own ...
No one seriously believes pro bono is a substitute for properly funded legal aid with adequate compensation for service providers, and the resolution movers maintain it aims to supplement, not eliminate, the LSS.
But the nature of the developing debate has some worried — the self-regulating profession’s 16-years-andcounting failure to provide a proper safety net or a solution to the dysfunctional system it runs could give Eby the leverage he needs to justify sweeping changes, even ending their monopoly.
Victoria lawyer Kevin McCullough, for one, said if the profession passes the anti-paralegal resolution while defeating his pro bono motion, Eby will have the opening he needs to paint lawyers as too self-interested to act in the public interest.
And that could prompt radical change. Eby has confided to some he favours fundamentally changing the legal-aid service delivery model and has commissioned a report on that issue by year’s end. Instead of private lawyers, the AG reputedly likes a system of public defenders — a typical NDP solution of increasing the size of the public service. That could spark another generation of strife.
“The costs associated with setting up public defenders/ staff lawyers would be enormous,” insisted McCullough. “I worry that putting the genie back in the bottle may be very difficult. I have always thought that the success of the B.C. LSS has been choice of counsel, and believe the erosion of that would actually be the beginning of thirdclass justice.”
Trouble is, third-class justice is what people who can’t pay a lawyer are already getting, and have been for a generation. The profession needs to quit kidding itself and own that.