What happened to the NDP promise to restore legal aid funding?

Creator: Don Craig | Government Communications Copyright: @2017 Province of British Columbia
BC Attorney General David Eby. (BC Government Photo)
​The Attorney General of British Columbia, David Eby, was recently interviewed by the Vancouver Sun. One of the issues covered in the interview was the question of Legal Aidfunding. During his campaign, Attorney General Eby promised to restore funding to Legal Aid, which is a critical issue in the access to justice sphere.

That has not happened yet.

Unfortunately, Attorney General Eby’s response was less than comforting, particularly for those who cannot get legal aid funding for their criminal matters.

​Q: Legal aid funding, how much and when do we start to see that?

A: “We’ve got a commitment in the platform, it’s $10-15-20 million (additional funding over three years) which is split between legal aid and increasing the number of sheriffs. There’s been a backlog in the courts generated by a shortage of sheriffs and we need to address that because there’s a Supreme Court of Canada decision around timelines in courts, and we don’t want people walking free because there’s been a delay in their case because there’s not enough sheriffs.

“On the legal aid side, when lawyers say legal aid they are often talking about the tariff rate for lawyers who are working on legal aid. So I’ve instructed my staff to take a much larger view of legal aid in access to justice. So when we’re looking at problems like family law, that might be in fact a system problem not a need for an increase in the number of legal aid lawyers, we might actually need a system easier to access to resolve uncomplicated divorce matters without having to hire a lawyer. It doesn’t mean we don’t need to do the legal aid tariff work, but from my perspective access to justice is broader than just the tariff.”

There are several significant problems with what has been hinted at here for the plan to restore funding to legal aid.

First of all, increasing the legal aid funding even $20 Million over three years is simply not enough. Particularly when you consider that this funding is split with increasing sheriffs, which has been an issue that has led to charges being stayed in serious cases. Splitting the cost between adding new hires detracts from the funding that Legal Aid could be receiving to pay for what it truly needs.

Secondly, $20 Million is a drop in the bucket. PST on legal fees was once declared unconstitutional. The Government restored PST on legal fees, with a promise to spend the money on the legal aid budget. However, that never happened. In 2016, the PST on lawyers and notaries was in excess of $193 million. The Legal Aid budget was $74 million. That means that only 38% — less than half! – of money collected through PST on legal fees went to paying for legal aid.

It’s just unacceptable that only an additional $20 million would be allocated to this, and even then that it would be split with increasing the number of sheriffs. Even adding $20 million to Legal Aid alone would not bring the total up to half of what was collected in PST revenue.

But more disturbing are Attorney General Eby’s comments suggesting that this is just an issue of lawyers complaining. He says “when lawyers talk about legal aid they are often talking about the tariff rate for lawyers who are working on legal aid.” What that translates to is this: “lawyers are complaining that they are not being paid enough.”

Wait a minute. The Attorney General of British Columbia employs more lawyers than any other law firm in the province. Legal Counsel Level 1 earn roughly between $79,500 and $103,000 depending on their year of call to the bar. And as Government lawyers work their way up the Government food chain, their salary can increase to nearly as high as $220,000 per year. Don’t forget that this includes benefits like medical, dental, and vacation time every year.

Now, if our provincial government determines that those are appropriate, competitive, and reasonable salaries to compensate employees for their hard work, training, years of legal education, and knowledge in their respective areas of law, you’d think that Government representatives like the Attorney General would not be so critical of lawyers simply asking to be paid what they are worth.

If you’ve ever had the chance to look at the Legal Aid tariff rates, you could see why lawyers are concerned by it. Lawyers on the Legal Aid tariff are paid peanuts. They make less than minimum wage and their jobs are demanding. People have their lives on the line, and in the hands of lawyers who are not being fairly compensated for their work.

Let’s examine the tariff. Imagine you are a legal aid lawyer, representing a client charged with an indictable offence – trafficking cocaine. You appear in provincial court for the bail hearing. For this, you can collect a $100 provincial court fee, one time. Your client is in custody, and has to have a bail hearing. You can collect $150 for the bail hearing. If your client is detained, you can collect $90 for having to visit him in custody. Assuming the case goes to trial, you are better off to schedule it in Supreme Court and have a prelim. You can collect $600 for the prelim. Once your client is committed to trial in Supreme Court, you can collect a $300 Supreme Court fee. If you then have a one-day trial in Supreme Court, you can collect a further $800. And if your client is convicted, you can adjourn the sentencing and collect another $125.

The grand total? $2165.

Now, from that whopping $2165 you charged, you also have to pay for your overhead: phones, photocopies, assistant, office space, paper to make case books, vehicle to get to court and jail, parking, Internet, etc. And, when you calculate the $2165, remember that it was 4 days of work in court and one day visiting your client in custody. When there are around 250 working days in the year, you can really only do this 62.5 times without double-booking yourself. This means that a legal aid lawyer, working full-time and billing matters every day the courthouse is open could theoretically make about $135,000 per year before expenses. By the time you factor that in, most legal aid lawyers are earning around what a Level 1 legal counsel, one year call earns.

And this doesn’t go up. You can’t inch into the $220,000 a year bracket by working hard and proving your worth. You stay stagnant.

Take a vacation? That’s less money. Have a medical expense? Pay it yourself. Dental work need to be done? Take a day off work, lose the legal aid tariff from that day, and pay out of pocket.

Legal aid lawyers are severely, severely underpaid and underappreciated.

And those calculations are assuming the file goes the distance. Lots of clients plead out, or the charges are dropped, and the legal aid lawyer doesn’t get to make any better income as a result.

​So when the Attorney General faults Legal Aid lawyers for complaining about the fees, he’s doing himself and his office a disservice. If Legal Aid lawyers aren’t able to earn at least as much as Government lawyers, with recognition that they, too, need vacations and medical and dental benefits then how can it fairly be said that they are simply complaining about the tariff?

Now I’m sure the Attorney General would not request his entire staff of lawyers to take a pay cut and work longer hours and pay for photocopies out of their own pockets. So why is it reasonable that we should ask legal aid lawyers to do so? Remember – these people are doing a public service, too. They are providing legal representation, a Charter-guaranteed right, to people who cannot afford it. And often they are dealing with difficult cases involving drug addiction, mental health issues, and poverty. They are helping people society often overlooks.

Blaming overworked, underpaid lawyers who are providing this essential service to the most vulnerable people in our society by stating that their complaint is largely that they aren’t paid enough is a heinous thing to do.

It’s time the Government starts recognizing legal aid lawyers as the deserving people they are. And it’s time that they are paid fairly for their work. With his background in social justice, I would have thought that the Attorney General would recognize this.

His comments are a disappointment and affront to the hard work of lawyers who want to be able to do more for their clients.

I urge David Eby to reconsider and to properly allocate funding to the legal aid system.

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