Legal aid still in crisis without a solution in sight
From the Winnipeg Free Press
Saturday, November 20, 2004
By Veronica Jackson
and Susan McGrath
The crisis in the delivery of legal aid services in Manitoba has, like the crisis in health care, gone on for so long that it begins to feel ‘normal’ and any action by the government seems like an improvement. The people of Manitoba must look closely when the government re-introduces The Legal Aid Services Society of Manitoba Amendment Act (Bill 47), expected next week. It may not be the good news citizens so desperately want to hear.
The last time the Bill was in the legislature some of its provisions threatened basic rights and undermined important principles of justice. The Manitoba Bar Association, with the full support of the Canadian Bar Association, has been working hard to alert the government to these problems and to encourage the Minister of Justice and Attorney General, Gord Mackintosh, to change the Bill before it becomes law. We have three major concerns.
1) We believe that Manitobans should continue to be allowed to choose their lawyer when they need publicly-funded legal representation. The last version of the Bill took choice away. Instead, the Bill proposed that Legal Aid Manitoba would select a lawyer for legal aid recipients.
This issue is not the competence of legal aid staff lawyers or lawyers in private practice. The issue is about the nature of the solicitor–client relationship. It is a relationship of utmost trust and confidence. For that relationship to be effective, it is essential for the client to feel they have found a legal advocate with whom they can communicate freely and openly and who understands them. All citizens lose when the government starts to dictate who will represent someone in court.
2) We believe that solicitor–client privilege is critical to the proper administration of justice. The Bill requires lawyers to promptly report to Legal Aid Manitoba if they discover that a client was not eligible for legal aid at the time the client applied for it or is no longer eligible. There are two problems with this requirement. First, legal aid eligibility is a complex calculation involving a number of factors. Lawyers are not experts on the internal workings of Legal Aid Manitoba’s administration and process. It is unrealistic to ask lawyers to become experts in this system and face consequences if they aren’t. Second, and more importantly, for centuries lawyers and clients have benefited from the legal principle of solicitor-client privilege. This protection means that a client can talk openly with his or her lawyer so that the lawyer can give the client the best possible advice. In the same way that patients need to be honest with their doctors so that the doctor can advise on the most appropriate treatment and medicines, clients need to be honest with their lawyers. Requiring lawyers to report on their clients destroys the trust and openness that is essential to the fair representation of clients. The principle of solicitor-client privilege is important to all citizens, rich or poor, and it is in everyone’s interests to preserve it.
3) We believe that conflict of interest rules must apply equally to all lawyers. The Bill says that conflict of interest rules are not broken when a Legal Aid Manitoba staff lawyer handles a case for a client and another Legal Aid Manitoba staff lawyer is representing another client in the same case, even where the interests of those two clients conflict. This not only creates a different standard than the one that applies to lawyers in private law firms, but it is also dangerous. The conflict of interest rules are put in place to protect clients not only from the intentional improper disclosure of confidential information, but also from accidental and unintentional disclosure. Conflict of interest rules protect clients and preserve the integrity of the justice system. We believe that the same rules of ethics should apply to all lawyers, whether they are in private practice or staff lawyers with Legal Aid Manitoba.
We hope that when Bill 47 is re-introduced these problems will have been corrected. We also hope that the government will stop using resources to tinker with the law and, instead, work harder to restore adequate funding to our civil and criminal legal aid services. The integrity of our justice system depends on it.
Veronica Jackson is President of the Manitoba Bar Association. Susan McGrath is President of the Canadian Bar Association.
