LAWYERS BURY HATCHET, TEAM UP TO TAKE LEGAL AID FIGHT TO EBY
Province ‘has failed and sadly continues to fail low-income British Columbians’
B.C. lawyers battling over how to respond to the legal-aid crisis have reached a compromise, calling on the profession to do more charity work and the province to properly fund the threadbare service.
Victoria lawyer Kevin McCullough wanted his roughly 12,000 or so practising colleagues to perform free mandatory legal aid work to address the lack of services that has choked courtrooms with self-represented litigants and hurt the most vulnerable.
The idea, however, ran into fierce opposition from some in the profession, particularly the newly formed Association of Legal Aid Lawyers, which wants the government to reverse the decades-long underfunding of the service and hike its low rates of pay. The two sides, however, have reached a compromise, calling on the Law Society of B.C. “to encourage, incentivize and reduce barriers to members to undertake legal aid and probono cases within their field of expertise, which assist women, Indigenous peoples, or relate to poverty law, for a minimum of 25 hours per calendar year.”
“These issues are too important not to come to a common ground on,” McCullough maintained on Friday after agreeing to modify his original resolution.
“The government has failed and sadly continues to fail lowincome British Columbians.”
The paucity of legal aid services has generated passionate debate among the bar about pro bono, the chronic underfunding and its effect (together with high legal fees) on access to justice.
A showdown over McCullough’s original resolution was expected at the Law Society’s annual general meeting Oct. 30, but technical problems prevented the roughly 1,800 members who had gathered from airing their views.
As drafted, the motion faced strong headwinds.
The few hundred or so government lawyers, who are now only permitted to do a narrow range of pro-bono work, were concerned because they are not insured to do pro-bono work in the areas specified.
While the prospect of slapped down for doing a good deed seems unlikely, they could have been subject to paying penalties for failing to do work they were not permitted to do.
Some in private practice worried they would be directed to do work for which they weren’t qualified. And lawyers who do immigration, family or criminal legal aid complained they were being devalued by the suggestion that someone without experience could deliver their specialized services.
“In my view, while it’s a good thing to encourage lawyers to do charitable work, this shouldn’t be viewed as an alternative to adequate legal aid funding,” insisted ALL member Michael Mulligan.
“This line of thinking would be the equivalent of underfunding the public health care system in the hope that doctors would help deserving patients for free.”
He said the amended resolution was significant because it directs the benchers who govern the society to advocate not only for a properly funded system but also one that is independent of government.
The independence of the LSS has been a concern since 2002 when the Legal Services Society Act was amended to set out the obligations of the society eliminating its independence and allowing the AG to appoint a majority of its board members.
The society, which receives about $90 million a year, now is obliged to provide services in a way directed by short-term memorandums of understanding with Victoria.
This is particularly troubling for criminal and child apprehension cases where the government is a party to the litigation.
In response to the outcry, Attorney General David Eby announced Oct. 4 a one-person review of legal aid that will conclude at the end of this month.
“It would seem that Jamie Maclaren’s review is contemplating things including having the Legal Services Society contract with non-profits or others to provide services in the hope that this would save some money,” Mulligan explained.
“Leaving aside whether this would, in fact, save any money, it’s a problematic idea with the Legal Services Society in its current form.
“If an organization with such a contract was conducting files in a way the government didn’t like, their contract could simply not be renewed. Decisions about how criminal and child protection cases are to be defended should be made by an organization that is independent of the government.”
The second part of the amended resolution also directs the benchers to not only encourage pro-bono work but also to remove barriers to doing it.
This might include, for example, extending insurance coverage to government lawyers so that they could undertake some of the identified work.
While not part of the resolution, Mulligan suggested the law society might encourage lawyers to do more volunteer work by publishing on its website the amount of pro-bono each did.
Lawyers already report the number of hours they devote annually to continuing legal education and the society in the past has asked about pro-bono service.
“That might be the kind of nudge that would encourage more of this, without turning a healthy tradition of volunteerism into an excuse for the government not meeting its legal aid funding obligations,” Mulligan added.
The Law Society AGM reconvenes Tuesday.