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Ontario law society has duty to step up for COVID-19-affected lawyers | Andrew Puiras

Thursday, July 30, 2020 @ 11:31 AM | By Andrew Puiras

The COVID-19 pandemic has led to the most severe economic downturn since the Great Depression. Businesses have been forced to close and many people are out of work. Lawyers and paralegals are not immune from the effects of the recession. In March, the Ontario courts suspended most operations and stopped hearing all but the most urgent matters. The suspension has resulted in reduced workloads and incomes for licensees. Some law firms have laid off lawyers and reduced lawyer salaries.

The impact has been especially devastating for solo practitioners, who have lost their revenue streams but still have to cover their overhead expenses. Many do not qualify for any of the aid programs established by the federal government. They do not qualify for the Canada Emergency Response Benefit because they are still nominally earning more than $1,000 a month. They do not qualify for the Canada Emergency Business Account because they have no payroll and their annual expenses are not high enough.

To help licensees impacted by the pandemic stay afloat, solo practitioner Caryma Sa’d started a petition on March 15, 2020, calling on the Law Society of Ontario (LSO) and the Lawyers’ Professional Indemnity Company (LawPRO) to defer the obligation to pay annual fees and malpractice insurance premiums due to the pandemic. The petition was wildly successful and the LSO responded with unusual celerity.

On March 17, the LSO announced that the obligation to pay annual fees would be deferred, with no late fees or administrative suspensions being imposed until April 6. The deadline has since been extended multiple times, and annual fees are currently deferred until Aug. 15. For those who are enrolled in the monthly payment plan, withdrawals are set to resume in August. Meanwhile, LawPRO allowed licensees to defer the payment of insurance premiums until July 1.

No doubt, these deferrals have helped some licensees stay afloat in the short term, but they are hardly a panacea. The deferral is of no assistance to licensees who already paid their annual fees in full before the March 2, 2020, deadline, and the LSO has refused to offer refunds to those licensees. Furthermore, a deferral is not forgiveness and the LSO will eventually collect full annual fees from licensees, many of whom will still be suffering financial hardship.

As the courts gradually reopen, it is becoming clear that revenues will not rebound to their pre-pandemic levels anytime soon, and the income lost over the past several months cannot magically be replaced. More measures to help licensees are needed. In April, solo practitioner Emily Dixon called on the LSO to help lawyers financially, such as with an income subsidy. In May, solo practitioner Bill Trudell, chair of the Canadian Council of Criminal Defence Lawyers, called on Canadian law societies to forgive fees and consider one-time emergency grants for lawyers. Their requests fell on deaf ears.

New bencher Michael Lesage has proposed a motion to forgive or refund annual fees for licensees whose gross monthly income is less than $5,000 from March 1, 2020, until the courts have resumed full operations. The motion recognizes that the closure of the courts has had a severe impact on the revenues of many licensees in private practice.

The motion notes that licensees pay annual fees in order to be able to provide legal services, but they have effectively been unable to provide services because of the closure of the courts. The motion also notes that racialized licensees are disproportionately affected by the court shutdown because they are more likely to be solo practitioners. If the motion is passed, licensees would be able to request forgiveness or a refund of annual fees by e-mailing the LSO. Benchers would not be able to request such relief.

This measure is sorely needed. The 2020 annual fee for a lawyer in private practice is $2,066 ($2,334.58 with tax). The 2020 LawPRO base premium is $2,950 ($3,186 with tax). This means that a lawyer who pays the base premium must pay $5,520.58 for the year just to be able to practise law.

A lawyer who qualifies for the full 50 per cent discount on insurance premiums, such as a new call or someone who practises exclusively in criminal defence, owes $3,927.58 for the year before earning a single cent. These numbers are exorbitant at the best of times and unsustainable in the middle of a global crisis which has left many lawyers with no income stream.

These high costs are an issue for access to justice and the most vulnerable members of society will suffer. The pandemic has created legal issues for many Canadians in family law, employment law, housing law and other areas of law. There is a considerable demand for affordable legal services. But high annual fees and insurance premiums make it difficult for licensees to provide services at reduced rates or do more pro bono work. Some licensees may be forced into higher-paying areas of law. Some may be driven out of private practice altogether.

The criminal defence bar, in particular, was already under pressure before the pandemic due to funding cuts at Legal Aid Ontario. A weakened bar will exacerbate the access to justice issues which existed before the pandemic. It will lead to more self-represented litigants, which will put a greater strain on the backlogged court system and lead to poorer outcomes. The LSO must not stand by and allow this to happen. As Lesage’ s motion notes, the LSO has a duty to facilitate access to justice.

This pandemic has been a major test of leadership for governments and civil society all over the world, and the legal profession is no exception. We need strong leadership to help licensees weather this storm. Lesage’s motion is a reasonable, common sense measure to help the licensees who have been hit the hardest by the pandemic through no fault of their own. Let’s hope Convocation has the wisdom and the fortitude to do the right thing.

Andrew Puiras is a criminal defence lawyer practising in Sudbury, Ont. Follow him at @PuirasLaw.

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