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Legal Aid Manitoba says it is prepared if private lawyers stage work stoppage

Wednesday, January 22, 2020 @ 1:12 PM | By Terry Davidson

Legal Aid Manitoba has a short-term “contingency” plan ready should the province’s private criminal lawyers stop taking new cases to protest the current rates of compensation, says an official with the service provider.

Tensions continue to simmer between the Criminal Defence Lawyers Association of Manitoba (CDLAM) and the provincial government following CDLAM members backing away from staging a week-long work stoppage back on Jan. 13.

The stoppage, which would have involved around 150 private bar lawyers refusing to take on new legal aid certificates, was suspended when Manitoba Justice agreed to meet with CDLAM, which is protesting the fact that the $80 per hour block fees LAM currently pays have not changed since 2008.

That meeting is set for Jan. 27.

A CDLAM spokesperson confirmed to The Lawyer’s Daily that the membership is looking for a 25 per cent increase, whether that comes in the form of a raise in the hourly rate or an increase in the blocks of time allotted for specific tasks.

For example, as it currently sits, LAM pays $160 for the two-hour block it allows for a contested bail hearing; $670 to $1,250 for the first half day of a preliminary hearing, depending on the seriousness or complexity of the offence, with the lawyer getting $250 to $380 for each additional half-day; and $1,540 for the first half day for an appeal against conviction at Manitoba's Court of Appeal, with the lawyer getting $560 for each additional half day.

However, regulations dictate that LAM’s executive director can increase the fees for cases involving “extremely unusual circumstances.” 

CDLAM maintains that the current tariff does not reflect the actual amount of time its lawyers have to put into cases.

LAM uses a mixed delivery model, using both its own staff lawyers and members of the private bar when providing representation.

Allan Fineblit, LAM Management Council chair

When asked about the current situation, LAM Management Council chair Allan Fineblit says a plan is in place should talks fail.

“The contingency plan, at least on paper, would ensure little disruption over a short time,” said Fineblit. “It would be a different story over a longer term because you, of course, have greater challenges, but in the short term, at least, there was a plan in place to ensure people that needed legal aid services were getting those services. So, it would certainly be a disruption, but it would not have a significant impact if it was only a week. … It would not have been catastrophic in any way.”

Fineblit said an advantage of using the mixed delivery model is that, in the event of a stoppage, slack could be picked up by LAM’s 60 staff lawyers — half of whom work exclusively in criminal matters, while the other half works mixed practice.  

“That would mean that you’re prioritizing and putting low priority things to the back burner and all the things you do when you develop a plan to deal with a crisis. I’m not suggesting for a second that if this were to be a long-term action that we can just simply step up and do it, that would not be viable, so we would have to think about what would happen if this were a long-term action.”

But Fineblit noted that a squeeze would be felt by striking lawyers, as well.

“On the other side, like any withdrawal of service, those who are withdrawing the service don’t have any income as a result, so they have pressure to not do it over the long term as well because for many of these lawyers the fees they get for doing legal aid work is a significant part of their income. So, it would have a pretty significant impact on them as well. I’m sure they didn’t take the decision lightly.”

Chris Gamby, CDLAM spokesperson

Of LAM’s contingency plan, CDLAM spokesperson Chris Gamby worried that staff lawyers would be spread too thin, thus compromising quality representation.

“The reality of the circumstances is that I don’t think they have the staffing to be able to actually deal with the potential workload that they would have,” said Gamby, a lawyer with Winnipeg’s Pinx & Co. “One of the main issues and one of the main concerns of [CDLAM] is quality advocacy. It is extremely difficult to do quality advocacy when you have too many cases. … I don’t know how long they’d be able to sustain it. Likewise, I don’t know how long some of our members would be able to sustain that either.”

Gamby called on “the province to properly fund legal aid” so that private lawyers get paid for the actual hours they put into legal aid cases, and that compensation be increased to address inflation and an increasing cost of living.

“The issue is that a lot of the juniors in the bar … will often rely almost entirely upon legal aid to fund their practices. The problem being, of course, is it doesn’t incentivize a lawyer to take on trial matters and it is very difficult to make ends meet on those numbers right now.”

He said private lawyers’ compensation needs to catch up with that of Crowns and LAM’s staff lawyers.

“I don’t like talking about an hourly rate as much as just understanding where the tariff goes and what comes out of the tariff,” he said. “We’re looking at an overall increase somewhere in the neighbourhood of 25 per cent, which is easily aligned with what the Crown attorney’s association and the legal aid lawyers association has received as far as benefits since 2008. … How the tariff actually breaks down, I believe that is something set by legal aid themselves, so they could adjust that one way or another. It may not be that there is an increase in the hourly rate, it may be that there are more hours allocated to a particular file, depending on the nature of it. There are different ways they can change how things are compensated.”

Comment from Manitoba Justice was not immediately available.

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