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LEGAL AID TARIFF INCREASE AND JOB ACTION

rory ziv
  ziv law group
   edmonton, Alberta


Hello, my name is Rory Ziv. I am a criminal lawyer. I am organizing a job action vote with members of the CTLA - criminal trial lawyers association.

I am proposing that all lawyers in Alberta commit to take no new certificates for a 3 month period beginning August 1 -- 2022. The tariff rate needs to increase and this is a political decision.

May I have the family bars viewpoint on this issue. Would the family bar be willing to join in on a job action initiative? At the moment it is a race to the bottom. The Hourly rate should be between 120-135$.

Regards,

Rory Ziv



Members, here is the BC model of legal aid ( I provide it because i believe it is a model that is well regarded).

https://legalaid.bc.ca/sites/default/files/2020-05/criminalMay2020_0.pdf

I am unaware if they have staff counsel doing the majority of the up front work (initial bail and speak to at first instance; in custody guilty pleas ) or if that is left to criminal lawyers privately.

Here is the latest master agreement in BC: the hourly rates are:

Less than 4 years $111.17 4 or more and less than 10 $116.73 10 or more years $122.28


(personally I am a fan of one rate for all )

https://legalaid.bc.ca/sites/default/files/2019-10/Oct%2017%202019%20Legal%20Aid%20Agreements%20FINAL.pdf


I am putting forward a motion for job action and will be happy for constructive discussion so that memberships viewpoints are well understood when it comes time to vote.


Attached image:


- May 8, 2022

5 22 months ago

Christina Wallace
  Christina Wallace Law
   Wetaskiwin, Alberta


Thanks Rory for taking this on. As a family lawyer there are 3 factors that have significantly reduced the number of certificates I take.

1. The rate itself doesn’t keep up with overhead.
2. Family certificates that used to have 30 hours now come with 15 hours. I wrote off time at 30 hours, now it is impossible unless extra time can be justified.
3. The social worker program the legal aid office has (in house social workers for complex FASD/mentally ill clients) is not available to such clients with certificates and would be impossible to pay for out of the minimal amount granted.

For example for child welfare matters counsel for parents and children ought to be paid at least at the same hourly rate as agents for the Director. I haven’t seen such a contract in a while but at least $125/hr.

Also, given the recent Edmonton Journal article disclosing political pressure on a lawyer to not make waves or hurt QC appointment of that lawyer, I think we need to look at advocating for the end of the QC program, as they have in ON.


4 22 months ago - edited 22 months ago

Kimberley Ketsa
  Long Family Law Group LLP
   Edmonton, Alberta


I just received an offer for a complicated guardianship/reunification of parenting matter and the certificate was for just 10 hours. You would not even be able to get the file off the ground for 10 hours. I agree with all your points but #2 has really been frustrating me the past year.

2 22 months ago

Anonymous 2021
   Other Region, Alberta


@Kimberley Ketsa: then you have a client who is not providing you with any material for days; the cherry on the top.

0 22 months ago - edited 22 months ago

Anonymous 2021
   Other Region, Alberta


In comparison to others, I am new for Family Bar and have no experience. But I'm having trouble chasing down clients so far. Sending them emails in order for them to respond or send me necessary information. I believe I've already used up half of the time ( I have a matter where I got 10 hrs ) allotted. Which I doubt LAA will cover.nnMost of us, who are taking these files are for learning purposes but no one can forget that we have family to feed as well.

1 22 months ago - edited 22 months ago

Anonymous 2019
   Edmonton Region, Alberta


I used to accept a very limited number of certificates, but since the number of hours dropped per certificate, I've only accepted one for a returning client. And while I know that pro bono hours are required to do the job I am comfortable attaching my name to, with 10, 12, and 15 hour certificates being issued, it has become impossible to accept any new ones. I'm volunteering at ECLC instead, since I at least have control over the number of pro bono hours...

4 22 months ago

Anonymous 2020
   Calgary Region, Alberta


I echo the comments above. I have not accepted certificates because of the low number of hours assigned to files, and the number of times I've done pro bono work. Asking legal aid for more hours on a file is time-consuming and it takes about 2+ weeks to see whether more hours are approved. I volunteer with Calgary Legal Guidance instead.

4 22 months ago

Wayne Barkauskas, K.C. Executive
 view Arbitrator profile
  Wise Scheible Barkauskas
   Calgary, Alberta


My comments could be lengthy, as I worked on this issue for days in direct consultation with the government back when I was CBA President, to little or no effect.
I will be brief in my reply:
1. Many (perhaps most) family law lawyers will not do legal aid. From an administrative point of view, it is cheaper to do pro-bono and have direct control over the conduct of the file;
2. Mechanics at Canadian Tire have a much higher hourly rate than Legal Aid Lawyers;
3. Adding access to legal aid will dramatically reduce the need for court staff who now help self reps through the system. Self represented parties take up an inordinate amount of court resources. It is financially illogical to reduce legal aid funding and then pour those savings, plus multiples more into court administration. Current court delays are DIRECTLY attributable to the dismantling of legal aid for family law issues.


4 22 months ago

Anonymous 2019
   Edmonton Region, Alberta


The hourly rate should be higher than $120-$135.

LAA is basically a loans program that gets bailed out by the government over and over again.

By that I mean LAA tries to get clients to pay the cost of their service over time, but since many don't the GOA gives money to offset the unrecoveraable loans.

This means that LAA is not, in fact, operating on a cost-recovery basis -- even though it goes through the motions by asking people to pay $25 per month.

In some ways, this is the foundation of our problem.

If LAA is supposed to operate on a cost-recovery basis, then I can understand the miserliness.

But if LAA is not supposed to operate on a cost-recovery basis, then maybe it's time to think about what business model it's supposed to follow and where the funding is supposed to come from.

For a few dollars more I will give serious thought to the strike.

But if we want real results we need the GOA to commit to funding the system. It's really that simple.

$120 per hour isn't going to cut it if the certificates have only 8 hours on them and the tariff has a long list of things I am expected to do as non-billable time.

And, by the way, when I say the rate should be higher than $120-$135, it's not because I'm greedy.

I say that because I can think of no good reason why we shouldn't get the market rate for our professional services.

Look at it this way: do administrative and management staff at LAA get paid market rates, or are they getting something like 50% of market rates? If they get market rates, why don't we?


3 22 months ago - edited 22 months ago

Anonymous 2021
   Other Region, Alberta


I would support this. I have rejected certificates for the last year and each time (because they demand a reason), I say "There are not enough hours allocated to address the number of issues/the complexity of issues in this matter."
Why are other "experts" on a family file paid over $100 per hour for their time, but us lowly, uneducated lawyers have to accept under $100 per hour for our time? Ridiculous and not worth it for the administrative headache these files pose.
I HATE having to use their billing system. What a waste of time. Just let us upload the billing logs from our own time tracking system. I know they are now trying to consult with lawyers to improve it, but I'm dubious that they will completely move away from their own proprietary system.
Also, why is Legal Aid insisting on making children their focus, so that any Order that directs the child shall have counsel is sent to their staff lawyers first? They are conflicting themselves out of acting for parents (who actually drive the litigation train) in favour of representing children. The population of this province would be much better served if Legal Aid staff lawyers had to represent one of the actual adult parties in a matter (you know, the people in control of the litigation) instead of defaulting to children. I would also be comfortable pressing for them to change this prioritization of their own lawyer resources.


1 22 months ago

Anonymous 2018
   Edmonton Region, Alberta


I think that lawyers who do predominantly or a lot of Legal Aid work should get a discount in LSA and ALIA fees. This would be an incentive for more lawyers to do Legal Aid work. It would also compensate to some extent for the low pay rate from legal aid.

1 22 months ago

Anonymous 2021
   Other Region, Alberta


It is not fair, especially for those in first-year calls, solo practitioners who have two or three clients from legal Aid, to ask them to pay a full-fledge fee.

0 22 months ago

Tracy C Brown Executive
 view Arbitrator profile
  Brown Law Group
   Edmonton, Alberta


I echo most of the concerns raised and have been venting of late about these issues. Happy to see this is all coming to the fore. I too am very concerned about the perpetual under-funding problem which is obviously a political problem needing concerted advocacy through the CBA and our other Membership organizations. I was happy to see the research commissioned by CBA Alberta last year which found efficacies in funding the Legal Aid system --- which all assists in the work that has to be done to maintain pressure to ensure adequate funding levels. And Wayne Barkauskas adds the argument re the extra burden on Court Administration with under-funding.

I would personally like to see a very strong voice coming from the Family Bar through the CBA Family Law Section - where in my view our collective voice has been a little too muted and lacking a certain passion and energy on these critical Family Justice issues of late (I note also that the CBA commissioned research found that more than 80% of Albertans support a unified Family Court and on this too we need to be FIERCE. I see these issues quite related and part of an overall strategy for reforming / transforming Family Justice in Alberta).

BUT -- I have to also comment that there are many challenges at Legal Aid Alberta specific to the Family Bar which are different than the some of the key issues faced by the Criminal Lawyers. These relate to Certificate Management and the point made above by Christina Wallace and seconded by Kim Ketsa. It is unacceptable for complex Family matters to be sent out to the Roster as 10-12 hour Certificate. The experienced lawyers know it's a joke and the inexperienced or high volume lawyers are taking these and then having to dump them when the hours run out and the Clients are left high and dry.

How can I continue to encourage (cajole) the younger lawyers in my office or in general all lawyers to take these LAA Certificates - as I have always advocated that we all should be taking some LAA files as a contribution to access to justice --? I cannot in good conscience say to a young lawyer - take that crazy complex file with 10 hours and then spend hundreds of hours over the next year working pro bono to get it done -- while you make not even enough money to pay your basic expenses.

Then to make matters worse -- we spend an inordinate amount of time making the pitch for more hours on a file, providing all the documents and proof of work done and our experienced opinion as to what is required (having already contributed huge amounts of pro bono time - and not being among the small sub-set of lawyers who have a high volume practice and who might be said to be milking LAA) - and we are blown off and told to suck it up --no more hours, no to your urgent request for an expert, no to anything you are asking for. It was actually said out loud in a LAA info session last year that we should be doing the work for free when the hours run out.

I was even refused 2 additional hours to finish a Divorce matter with 100% coming back to LAA from the Property Settlement. That blew my mind. Not a big deal in the big picture but indicative of the problems. Even when LAA is going to get full reimbursement of fees --- I still couldn't get a few more hours to finish the file - again having contributed a lot of pro bono time over the life of the file.

A lot was made by LAA about one expensive crazy LAA file I took on for a few years with the very real likelihood of full recovery from a Property Judgment. I had to go off the file for health reasons and LAA proceeded to then not fund hours for another lawyer to continue the huge amount of work that would have secured FULL recovery. What a disaster that was. And we are talking about the 50 binder type of file, working in 3 languages, dealing with corporations in 3 countries, subterfuge, machinations of all kinds, personality disorders, kids in the mix, threats from the opposing party, lawyers being sued, etc --- the first degree murder Trial of Family law --but it was treated like any other matter and obviously my opinion as to how to get to the end game with full recovery for LAA seemed to have fallen on deaf ears.

There is something not good happening internally with Certificate Management on the Family side. I fully acknowledge this is a tough situation -- and management at LAA must be a thankless and extraordinarily difficult place to be. But it can't continue like this. Private lawyers have left the Roster in droves. Who is left?

I am currently just taking Child Counsel files on LAA for all of these reasons (after being interviewed and deemed fit to do this work for $92.40 + pro bono by a lawyer who does not take LAA files). I have probably done upwards of 350 hours pro bono on Legal Aid Certificates over the last 8 years which are files I did not need to take, as I turn away private work every day, and it's just not sustainable. Even with my Child Counsel files - I'm not happy about being forced to do pro bono work on demanding and important files - often with mentally ill parents and kids in distress. Yes - I could drop the kids into the abyss, but I find this an unacceptable alternative. I'd rather speak out about the systemic problems and hope that there is someone listening and looking for solutions.

Has LAA been consulting on these issues? I have not heard about any consultation. I want to remain optimistic as a long-time supporter of Legal Aid. Clearly Legal Aid is essential in our Family Justice system. We have to fix this!



2 22 months ago

Tracy C Brown Executive
 view Arbitrator profile
  Brown Law Group
   Edmonton, Alberta


Oh -- and the political hackery around the QC process is a problem. Deb Hatch, Moira Vane -- and god knows how many others, probably mostly women lawyers, who have dared to speak out about Legal Aid and other important issues only to be relegated and crossed off and out - is not acceptable. We must and can do better as a profession. A culture shift requires courageous leadership and more of us not turning a blind eye.

I'd hate to see the end of honorifics when there are so many deserving lawyers who contribute so much to the profession and the community. The political hackery is a stain on our profession. It should be named and shamed.


2 22 months ago

Anonymous 2018
   Edmonton Region, Alberta


Does anyone happen to know if these issues are specific to Legal Aid in our province? Are other provinces facing similar issues with their Legal Aid programs?

0 22 months ago

Wayne Barkauskas, K.C. Executive
 view Arbitrator profile
  Wise Scheible Barkauskas
   Calgary, Alberta


The funding and operation of legal aid is unique to each province. It is subject to the political whims of the people in power from time to time. Many have advocated for some kind of financial self-sustaining model so that legal aid is no longer a political football, but without success. Alberta's legal aid model, as it relates to family law, is the least funded and most restrictive in the country by a large large margin the last time I checked.

2 22 months ago

Suchetna Channan Executive
  Suchetna Channan
   Calgary, Alberta


Would the family bar be willing to join in on a job action initiative? As a member of the family bar, I am willing to join in.

0 22 months ago

Wayne Barkauskas, K.C. Executive
 view Arbitrator profile
  Wise Scheible Barkauskas
   Calgary, Alberta


Perhaps a one day walkout by all family lawyers in Alberta? This would mean no scheduling of any court matters that day across the province. I'm sure the bench would buy into it. It has to be lead by someone who does not have regular invitations by governments to consult on other matters though, so it could not be CBA for example. Maybe someone here on this forum would be willing to take up the torch?

0 22 months ago

Dustin J .Tkachuk
  Lawrence & Tkachuk
   Edmonton, Alberta


I've been asking Legal Aid for years to adopt some kind of flexible approach that would expand the financial guidelines, reach that section of the "middle class" who can't afford lawyers at regular rates but make too much for the FEGs.

Do a sliding scale. Have clients come up with a retainer, even if it's $500 or $1000 so they have some skin in the game.

I agree with the above that the recoveries are poor, but also sometimes clients are rejected because they theoretically are on a bunch of joint assets and then wouldn't meet the FEGs...yet we all know just because they may be on the assets, they have no real control or access to them.


3 22 months ago

Tracy C Brown Executive
 view Arbitrator profile
  Brown Law Group
   Edmonton, Alberta


Totally agree with this. Right now dependent wives with zero income are rejected because their name is on a jointly titled home -- even when they are not in currently living in the home, and have no control over any assets.

The LAA system probably can't be based on fee-recovery overall but I also know that recoveries would be much higher on Family files with Property - if Roster lawyers were enabled to make it happen. And I really like the idea of a small retainer for certain kinds of files.

I see there is finally a Legal Aid Consultation happening so hopefully this will be a forum through which constructive ideas can be brought forward to improve some of the dysfunction. Hopefully. But it won't fix the major challenge of funding.

In addition to the Roster rate and eligibility issues, there should be funding for not just the Family Law Office staff but more community legal clinics with full-time staff lawyers (in other provinces this occurs through the Legal Aid funding stream).


1 22 months ago

Anonymous 2018
   Edmonton Region, Alberta


I know a person who was deemed ineligible because he made $80 over the LAA income threshold.

0 22 months ago

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