Criminal Law

LAO project helps lawyers provide access to justice: Hicks

By Peter Small, AdvocateDaily.com Contributor

A Legal Aid Ontario (LAO) pilot project that streamlines the way lawyers are paid is helping to soften the impact of chronic underfunding in the system, says Toronto criminal lawyer Christopher Hicks.

“It could be the salvation of the defence bar,” says Hicks, a partner with Hicks Adams LLP.

Hicks’ criminal defence firm was the first to sign onto the Alternative Fee Arrangement program, under which LAO pays for services on a regular monthly basis, based on past billings. The total monthly payments over the year amount to 80 or 85 per cent of what the firm is expected to charge annually.

“At the end of the year we look at how much of the holdback, the 15 or 20 per cent holdback, we should get on the basis of the work that we’ve done and the number of legal aid clients that we served,” Hicks says.

The billings at his firm are divided into three categories: tariff fees, block fees and big case management files.

Hicks Adams, one of Toronto’s largest criminal defence firms, is just finishing its fourth year with the program. “We were the first to use it. We were the first dog in space,” Hicks says. “It has been very beneficial. I think it’s the future of legal aid.”

At a time when the right to a fair trial is being compromised for many lower- and middle-income defendants by a woefully underfunded legal aid system, the Alternate Fee Arrangement (AFA) program improves access to justice by giving defence lawyers stability of payment, he says.

“This is a program that should be extended and encouraged,” Hicks says. At least two other major Toronto criminal defence firms are also using the system, he adds.

Legal Aid Ontario explains on its website that the Alternative Fee Arrangement pilot program offers an alternative to hourly billing. The lawyer or law firm enters into an arrangement with LAO, securing agreed-upon monthly payments in return for managing a predetermined number and range of legal services.

Legal Aid Ontario does not refer clients to lawyers under the arrangement. “You still get your own clients who are eligible for legal aid services,” LAO explains on the website.

Hicks says the program is a welcome development during a rough period for Legal Aid Ontario.

He notes that the organization's CEO, David Field, is struggling with its finances. In December 2016, the non-profit corporation announced a significant scaling back of services due to a $26 million deficit, the Toronto Star reports.

One of the major changes was that it would generally no longer issue a legal aid certificate for criminal defence lawyers in cases where there is not a “substantial likelihood of incarceration,” the Star says.

Hicks calls the “likelihood of incarceration” a false indicator imposed by a chronically underfunded system desperate to save money. “Anybody can go to jail on a criminal charge,” he says.

The legal giants who founded Ontario’s legal aid system, like the late Ontario Court of Appeal Justice G. Arthur Martin, looked at all kinds of models for state-funded legal representation but decided the best way was to pay independent lawyers to act for indigent defendants, Hicks says. “It had two advantages: you’re helping people who need help, access to justice and funding, and it's encouraging the development of a vibrant and independent bar,” he says.

But the system is in jeopardy because of the funding shortfalls, Hicks says.

The system’s means test, which denies full legal aid funding to anyone earning more than $13,635 a year, leaves many people of modest means out of luck, he says. “The more we move the goalposts towards a higher sum, the better off people will be,” Hicks says.

“There are people who need lawyers who are not getting lawyers,” he adds. “Judges are angry about it and say, ‘Why do I have so many unrepresented people appearing in front of me?’”

The reason is simple: they can’t get legal aid and they can’t afford a lawyer, Hicks says.

Having unrepresented defendants puts judges in an uncomfortable position because they have to give some assistance to them, he says. “Plus, it sucks up court time like crazy,” he adds. “It takes much longer to get through something with an unrepresented person than it does with someone who has a lawyer.

“There just has to be more funding. One of the tests of a healthy community is how much money you are willing to spend on your justice system to make sure that people who need funding get it.”

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