Re: Legal Aid-Representing the Wealthy
Our President has just sent out the monthly BarTalk with her editorial on how much the Bar Association is doing for us. I’m wondering whether or not they might provide some assistance to the members by making representation to the Legal Services Society requesting a more diligent policing of those who qualify for Legal Aid. In our area, we are seeing repeated examples of Legal Services paying for representation of people in criminal matters who own substantial property and have substantial income in one fashion or another. I’m not in the position, when I get to see it, that I can reveal the individuals or the assets that are not being used to pay for representation. I can tell you that I have received complaints about the issue from some of the people in the banking industry who come to know that an individual has been represented on Legal Aid when the banker is completely aware of the assets that would have been available. A common complaint in our area is that the Legal Services Society simply “does not check” or demand to see proofs of assets from the third parties who have the knowledge.

I suggest that allowing resources to be wasted on those who can pay for them when there are so many who can’t and need the help, is something that is not doing the public image of lawyers any good either. One of the worst abuses of this problem arises out of the “duty counsel” who simply don’t have any time to see whether or not the person should be paying for representation. (I don’t have any big suggestion about how to deal with that).

If this was a minor or exceptional case situation I would be the first to ignore it. My experience however, is that Legal Aid certificates are passed out, especially for criminal cases, with a minimum of checking on the capacity of the client to pay.

Yours truly,
Glenford E Greene
Barrister & Solicitor

cc: Legal Services, Smithers
Legal Services Society, Vancouver

Response from the Legal Services Society
Dear Mr. Greene,
Thank you for your letter regarding the need for diligence to ensure only those who are financially eligible receive legal aid services.

LSS takes very seriously its responsibility to ensure clients meet our financial eligibility requirements. Applicants for legal aid are required to provide us with proof of income; it is an offence to mislead the Society in that regard. Applicants also sign a consent for their lawyer to disclose to LSS documents and financial information that pertain to their eligibility for legal aid.

I strongly encourage all lawyers who have reason to believe a client is ineligible for services to send that person back to the nearest legal aid office for reassessment. Under the terms of their contract with the Legal Services Society, lawyers are obliged to notify the referring office if they learn that a client has failed to disclose assets or income to LSS, or that the individual’s financial situation has improved.

LSS investigates all complaints from third parties who believe our clients are improperly receiving legal aid. We receive complaints about anywhere from 400 – 500 clients each year. Last year, 137 complaints were unfounded, 12 were about non-LSS clients, and 119 resulted in termination from legal aid or conversion to private retainer. (As of March 31 another 153 complaints were still being investigated).

Finally, services provided by duty counsel facilitate the court process and are limited to advice about the charges against them, court procedures and legal rights; and representation in hearings where they are applying for release, entering a guilty plea, and/or speaking to sentence. People must still apply and qualify for legal aid before receiving a legal aid referral for ongoing representation.

You may be interested to know that a study in Ontario a few years ago found it was not viable to investigate the ability of an individual to pay for such services. Even a five minute inquiry by duty counsel into clients’ financial circumstances was not cost-effective.

Working with the private bar is a key element to an effective legal aid plan. I appreciate your input on this matter and look forward to working with you in the future.

Yours truly,
David S Duncan
Chief Executive Officer and Executive Director

cc: BarTalk, CBA BC Branch

Re: BarTalk, April 2001, Vol 13, No 2
Mr. Fattedad’s article in the April issue of BarTalk is quite correct in saying that law firms are now paying less in base premiums than they ever have. The reason for that is that there was a gross overcharge initially. Mr. Fattedad’s comments that we are among the lowest rated industries is also quite correct. The reason for that is that we have a low frequency of claims. My earlier correspondence indicated that for every $7.50 in premiums, the claims paid were somewhere in the area of $1.50.

The item left untouched in Mr. Fattedad’s article, but hopefully not by the Canadian Bar Association, is the other aspect of where premium dollars go, that is, administration. For every $7.50 in premiums, there is $2.50 in administration. In other words, the cost of administering WCB for lawyers is more than the cost of claims. This aspect of the matter was significantly stressed by Geoff Plant in his recent letter to The Advocate. Is this matter going to be pursued with the Worker’s Compensation Board?

The other matter is the use of low claims industries to bail out high claims industries. Many of these high claims industries are particular favorites of the government in power in Victoria in the bulk of the 1990s. Will this matter be pursued?

Yours very truly,
G G Ridgway QC

These letters were published in the June 2001 issue of BarTalk.