Setting the Stage for Tariff Reform
No issue has provoked more criticism from private criminal law practitioners than the management of the legal aid tariff, and more specifically, the hourly rate it prescribes. While the tariff originally established in 1973 was sufficient to allow legal aid lawyers to cover their overhead, give their cases adequate time and still make a modest profit, by 2000 this was no longer the case. The inflation-adjusted hourly legal aid tariff rate had been declining since 1986 and, notwithstanding the occasional adjustment, the effective hourly rate has never been restored to pre-1974 levels when inflation was taken into account.
The real difficulty with the eroding remuneration is that tariff rates have an unquestionable relationship to lawyer participation rates. The private bar is exiting the legal aid system in increasing numbers leaving the certificate scheme in fragile condition. The number of private lawyers providing legal aid services dropped steadily between 1999 and 2007, notwithstanding modest increases in both the tariff and the number of certificates issued during this period. Between 1999-00 and 2006-07, the total number of criminal lawyers participating has fallen by 14%. The diminishing commitment by the private bar to the provision of legal aid services poses a fundamental challenge to the sustainability of the legal aid system as it currently functions; one that requires urgent and immediate attention.
It is also important to compare and contrast two distinct dichotomies within the criminal bar in order to add some context to the equation and fully understand the reluctance of the private bar to participate in the certificate program. They are: 1) junior vs. senior counsel and 2) the legal aid practitioner vs. other criminal counsel.
Young lawyers entering the profession may be prepared to take on legal aid cases at very low rates, because their cash retainer client base is not yet created. Junior counsel accepting legal aid cases can result in cases taking longer to resolve, particularly complicated ones. However, as they become established, develop reputations in their fields, and acquire a significant fee-paying client base, they are more liable to withdraw from the legal aid services segment of the market. Furthermore, law students contemplating various choices among legal practice areas may be influenced in their choice by comparing the current legal aid rate with prevailing rates of compensation in other areas of private practice or in legal careers in the public sector. This comparison that does not bode well for the whole-hearted adoption of legal aid clientele, especially when taking into account the real possibility of the junior lawyer being burdened with the accumulation of significant student debt.
Conversely, more experienced lawyers who have a developed client base may not be attracted the legal aid clients simply because it is an economically unwise use of their time. When a lawyer has an established client base, taking on legal aid cases at a reduced rate is simply fiscally irresponsible. However, these experienced lawyers may well continue to provide legal aid services through their commitment to particular areas of law and particular client needs. Nonetheless, in the long-run, maintaining legal aid tariff levels substantially below prevailing compensation levels in private legal practice and in legal careers in the public sector is likely to reduce both the number and quality of both junior and senior legal practitioners providing legal aid services to the most disadvantaged members of our community.
It is of additional contextual value to contrast the steady erosion of the legal aid tariff with the compensation rates of other comparable professionals, within the criminal law field, whose income has significantly increased over the same period of time. In particular, the average net income of self-employed lawyers in Ontario had significantly and steadily increased over the period 1980 to 1997, while at the same time the inflation-adjusted gross salaries of federal superior court and provincially appointed judges had seen significant increases. Similarly, the inflation-adjusted salaries of government lawyers with the designation “Crown Counsel 4” had significantly increased from 1987 to 1992. Although the salaries then decreased due to inflation in the period from 1992 to the end of 1998, they were dramatically increased in 1999 as a result of a binding interest arbitration award.
Furthermore, over the ten-year period from 1997 to 2007, Ontario provincial court judges received an approximately 83% increase in their compensation while the compensation of federally-appointed judges has increased by approximately 61%. Similarly, the compensation of Crown lawyers in Ontario increased by approximately 57% in the same period.
Narrowing the scope of the remuneration analysis further, the disparity between the increases in compensation that members of the private criminal defence bar have enjoyed en masse, as compared to increases in the tariff, is equally bleak. In 2000, the average hourly rate for criminal lawyers ranged from $155 (1-5 years) to $182 (6-10 years) to $205 (11 years +), as compared to the respective $67.00, $75.38 and $83.75 rates under the tariff.
In 2005, for a lawyer with 6-10 years experience, the typical fee for an uncomplicated assault charge where the accused intends to plead guilty was $881. By comparison, the maximum fee payable to such a lawyer under the tariff was $452 in 2000, $499 in 2005, and $524 in 2007 (based on a 6 hour limit). In other words, lawyers representing fee-paying clients could earn nearly double what those representing legal aid recipients could earn.
In the nine years since the Holden-Kaufman Report, the tariff has only eroded further. According to the Legal Aid Ontario website, the tariff has been increased by only 10% since 1987, while inflation increased by 60% in the same period. While some modest increases have been implemented, these increases fail to even remotely reflect the increased cost of practicing law, the increased compensation paid to other participants in the justice system, or even modest inflationary indexes.
In sum, it is unfair for current and prospective providers of legal aid services to receive an hourly rate that has declined through time while the compensation levels for federally and provincially appointed judges, Crown attorneys, and lawyers in private practice have increased. Thus, lawyers that are committed to allocating a significant portion of their practices to some of the least advantaged members of society are being asked to make financial sacrifices that most lawyers in public service or other private practice or are not required to make. Furthermore, both the short and long term incentive effects of the under-compensation of lawyers providing legal aid services concerns not only lawyers currently operating within that framework, but also future lawyers who might prospectively provide such services.
 Holden-Kaufman Report, supra note 1 at 144
 Ibid at 115
 Report of the Legal Aid Review, supra note 33, at vii
 Ibid at 122
 Holden-Kaufman Report, supra note 1 at 128
 Ibid. at 128-130
 Ibid. at 130-131
 Ibid at 132
 CLA Submissions, supra note 5, at 16
 Ibid. at 21
 Holden-Kaufman Report, supra note 1, at 179-180
 Ibid. at 170, Table 6.5