Technical Stuff

Just about every so-called free and democratic society on earth has a government-subsidized agency which dishes out legal aid referrals to private lawyers, or through a centralized group of lawyers. Each, though, has different scopes of services covered by legal aid. For example:

As well as any, the Canadian jurisdiction (province) of British Columbia (BC) is a good example as it evolves to extend assistance in an environment of tax-cuts. In family law cases, entitlement is not automatic. Violence or child protection may be a criteria of entitlement (as of the date of this representative article, 2013).

Since 1979, the BC legal aid program has been administered by a non-profit, the "Legal Services Society" under the auspices of the Legal Services Society Act (Chapter 30 of the 2002 Statutes of British Columbia).

This independent agency structure is typical of legal aid programs, such as Legal Aid Ontario. The non-profit is a partially independent organization. "Partially" in that it must report to the local legislature and that legislature (the provincial government) is the primary funding source although a portion is also received from the federal government and, in varying amounts, the Law Foundation and the local notary foundation.

legal aidThe legal aid non-profit is required to balance its budget and may not incur a deficit without the permission of the provincial ministers of justice and of Finance.

It is directed by a board of directors appointed as follows with members noiminated by the local bar association (Law Society of British Columbia) and the provincial Minister of Justice.

The Society is under a statutory duty to:

"... to assist low income individuals to resolve their legal problems and facilitate access to justice for low income individuals".

The crossed-out words having been more recently struck from the enabling legislation, the Legal Services Society Act, see §9 of the 2013 version.

Who/What Qualifies?

Circa 2007, the Act provided "free" legal services for a "qualifying individual" who:

  • Is a defendant in criminal proceedings that could lead to the individual's imprisonment;
  • May be imprisoned or confined through civil proceedings;
  • Is or may be a party to a proceeding respecting a domestic dispute that affects the individual's physical or mental safety or health or that of the individual's children;
  • Has a legal problem that threatens the individual's family's physical or mental safety or health, the individual's ability to feed, clothe and provide shelter for himself or herself and the individual's dependents, or the individual's livelihood.

To put that into plain language, and generally speaking:

  • There's a dual-qualification criteria: your legal problem must qualify and your income must be below certain levels.
  • While the threshold for eligibility changes from time to time, as of April 2006, and by way of example only, and generally, for a household of three, a "net monthly income" of about 2,500.
  • Legal Aid may also deny coverage based on assets if they are of a substantial value.
  • As to the type of 'legal' problem covered, and again generalized for the sake of this article, legal aid in Beritish Columbia covers criminal cases only where imprisonment is a possibility and in regards to family law issues, if there is a violence or child protection component.

In some cases, the qualified litigant may receive legal aid but it will not be completely free; he/she may be asked to pay a small user fee called a "contribution" (e.g. $25 or $100). This will be the case if your income is higher than local welfare rates.

The legal aid beneficiary is under an ongoing obligation to inform the legal aid non-profit of any advantageous changes in his/her income. If finances improve such that he/she exceed the limits for legal aid, he/she may suddenly find legal aid coverage cut and be responsible for paying their lawyer directly. In cases where a legal aid litigant receives a monetary settlement or is successful in obtaining and enforcing a court order, he/she may be asked to pay the legal aid office back part or all of the money it has paid in legal fees for his/her lawyer.

The non-profit investigates complaints received from legal aid clients about their lawyers or about legal aid delivery. I have been involved in family law cases where eligibility for legal aid has been a substantial issue because once a legal aid retainer has been issued, there seems to be a distinct reduction in the incentive to settle. Correspondingly, a litigant paying for a lawyer out of his/her own pocket can be beaten into (financial) submission by legal initiatives subsidized by a legal aid-financed litigant. Worse, once the scent of legal aid gets out, the other litigant has, in some of my cases, filed several complaints to the non-profit alleging hidden income on the part of the legal aid litigant, hoping by that to have the rug of legal aid pulled from under his/her feet.

Some Final words....

Assuming that the applicant has all required information, the application for legal aid is accepted or rejected fairly quickly.

If a person is eligible for legal aid and if a registered lawyer has been identified on the application, the lawyer will be contacted and may be tendered a referral form. If the purported legal aid client has not selected a registered lawyer on the application form, he or she will be referred to another registered local lawyer with an expressed interest or experience in the field of law in which the legal services will be provided.

Not all lawyers are prepared to work for the relatively low hourly rate provided by the non-profit, and have neither resistered with the non-profit nor will take any legal aid retainer. That means that the litigant will not necessarily get the most competent lawyer, just one who is competent.

The lawyer then provides legal services but his/her legal bills are paid by the non-profit, in accordance with detailed rate tables as set out in binders published by the non-profit. As of April 2006, for example, that rate was about $80 an hour.

If the application for a legal aid referral is rejected, there is an entitlement to appeal the decision.

Everywhere, and not just in British Columbia or Canada, legal aid programs have been under political scrutiny since inception. Many lawyers and lawyer groups quickly, and with their hearts (if not their wallets) in the right places, quickly raise a fuss over any reduction of public funding for legal aid, as well as other proposed changes, or delays in receiving payment from the non-profit.

Because this is a publicly funded service, subordination to political decision comes with the territory. However, some lawyers and special interest groups argue that reduction in funding for legal aid has resulted in some disadvantaged persons being denied access to legal representation especially where they face considerable personal consequences or a complex legal case in which, without legal aid, he.she would be as lost as a tourist in the midst of the Sahara Desert.

Other criticisms include comments that the level of income required to qualify means that only the very poor can benefit from the program, leaving the population in low to mid-range income range to reach for very expensive if not often prohibitive private lawyer fees; and that funding should not be provided to provide free defence counsel for repeat criminals, regardless of income.

I recently had lunch with a delightful young lawyer who, in private, proposed as a panacea to access to justice issues, universal legal aid. Such a proposal, one could only imagine, may well provide universal access to justice but other than lawyers, every other citizen would be financially crippled under the horrendous tax burden of such a proposal.

Still legal aid which is affordable to society. remains a conundrum and new ideas ought to be always welcome.

Researched and written by Lloyd Duhaime as a free public service. Any opinions expressed are solely those of Mr. Duhaime. This information is not legal advice. Provincial laws and regulations or Legal Services Society or Law Centre policies, procedures or forms can change at any time, and with little or no notice. Therefore, this information, while believed to be accurate in November of 2013 can only be provided without warranty of any kind.