Ian Mulgrew: Legal Aid pact heralds new era

OPINION: "Up until this agreement, we had really complete control over what we paid lawyers subject to what the market would bear."

VANCOUVER,BC:JUNE 26, 2017 -- Mark Benton, CEO of Legal Services Society of BC poses for a photo in Vancouver, BC, June, 26, 2017. (Richard Lam/PNG) (For Ian Mulgrew) 00049747A [PNG Merlin Archive] RICHARD LAM / PNG

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The new deal between the B.C. government and the Association of Legal Aid Lawyers augurs a new era after 20 years of acrimony and social damage, but how it will actually work remains foggy.

It took the Attorney-General’s ministry until Friday to come up with the agreed-upon new rates that will be paid legal aid lawyers — a 20-per-cent increase!

For taxpayers, it means $45.4 million over the next three years — $6.1 million for fiscal 2019-20, $18.9 million for 2020-21, and $20.4 million for 2021-22.

But there could be expensive repercussions down the road for the province as a result of this new willingness in government to bargain with and negotiate rates for lawyers much as it does with doctors.

Mark Benton, the executive director of the Legal Services Society, was out of the province last week and couldn’t shed much light on the pact that has not been released.

“In itself, it’s an interesting development for LSS,” he said in a telephone interview on his way back from Quebec.

“Up until this agreement, we had really complete control over what we paid lawyers subject to what the market would bear. But of course, we didn’t have any guarantee we would have the revenue to match that. What this does is to close an important loop around resources needed to attract and retain capable lawyers to do legal aid work. In itself, that’s a big step forward.”

The commitment is welcome news for lawyers’ pocketbooks, but it neither broadens nor truly repairs the frayed safety net.

The hourly rate (or tariff) will now range from $105 for lawyers in their first four years of call to $115 for lawyers with 10 or more years of experience. In subsequent years, they will rise and peak at roughly $114 and $125, respectively, on April 1, 2021.

Eby defended the increase by pointing out the rates had increased only once since 1991 — in 2006, they were raised to an average of roughly $88 from $80.

But the effect of the hike on current public-sector wage discussions that include Crown attorneys and LSS staff lawyers across the province remains to be seen.

And the deal adds a wrinkle for future administrations and the non-profit agency, with the government now negotiating directly with a group that represents 645 of the roughly 1,000 independent contract lawyers who work for the LSS.

“I’m having conversations with the government in coming weeks around that, about how it will fit,” Benton said. “But we’re satisfied and the LSS board is satisfied by the government’s commitment that they’ll stand behind the agreement and the funding needed to meet it.”

It was his understanding that a key second element in the deal was a commitment from the government to discuss broadening the scant services and improving eligibility requirements, which on the civil side currently exclude pretty well anyone who isn’t practically homeless or being violently abused.

“What’s been agreed to is more public consultation on the issues — coverage, the range of services available to people, and eligibility, who is eligible to receive legal aid services,” Benton said.

“Both those items will be discussed, but those will be government decisions in the end about what they are prepared to fund. It’s one of the aspects of the agreements that hasn’t received much focus yet. I know the government is working on coming up with a framework for discussion purposes, but I haven’t seen anything yet and don’t know how that will work.”

That discussion comes at a good time, Benton stressed, as solid economic research is finally emerging to show the benefits of a robust legal aid system.

The World Bank issued late last month a report, A Tool for Justice: The Cost-Benefit Analysis of Legal Aid, that compiled research from 50 civil and common law countries.

It cited a Canadian study of the cascading costs attributable to unequal access to justice — it showed that for every dollar not spent by government on legal aid and access-to-justice measures, $2.35 was spent on health, unemployment and social services.

And the Canadian Forum on Justice recently released a report that came to similar conclusions about the economic return and benefits to government of funding legal aid.

“This new research puts these kind of investments in a different light,” Benton said. “Where historically legal aid investments have been seen to be socially important, there hadn’t been enough data to talk about how they were economically important — and that’s changing. Governments and policymakers can look at more cost-benefit analyses about what they are getting for what they’re spending. In my experience, that is always an issue with government: they want to make sure they are getting the best value for every dollar spent.”

Benton was optimistic the deal will be sustainable because its third element was a provision for renewal and renegotiation in two-and-a-half years.

“It’s forward-looking in that regard and gives everyone an opportunity to look at this further as things evolve.”

imulgrew@postmedia.com

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