Victoria lawyer Kevin McCullough wants the province’s 12,000 lawyers to perform mandatory free legal aid to unclog the court system and reduce the number of people representing themselves.
A resolution by McCullough and lawyer Danielle Young will go to the annual general meeting of the Law Society of B.C. on Oct. 30. It calls on the law society to amend its rules and require all practising lawyers to provide a minimum level of pro bono legal aid.
“Legal aid is in a crisis,” said McCullough, a criminal lawyer. “And this resolution is about access to justice.”
Lawyers and the law society have failed to deal with the crisis in access to justice, McCullough said. For the past 20 years, report after report has suggested that legal-aid programs should be expanded so more people could be covered. But regardless of which party is in government, those reports have fallen on deaf ears, he said.
“No informed person thinks lawyers are doing enough,” McCullough said. “The reason I believe the resolution is so important is that it will show the government and the public that we’re going to do something fairly extraordinary. It’s my hope that the public and the government will get how brutal the crisis is.”
This month, Attorney General David Eby launched a review of how legal aid is delivered in B.C., asking lawyer Jamie Maclaren to come up with a report with recommendations by Dec. 31.
Under the legal-aid system, people eligible for legal assistance are connected with private lawyers paid for by the Legal Services Society, a non-profit funded primarily by the provincial government. The society has a budget of about $80 million a year, recently boosted by $12 million from the province for 2018-2019.
In B.C., 1,000 lawyers are licensed to take legal-aid cases, which are assigned on a rotating basis. Those who are eligible for legal assistance can choose their own legal-aid lawyer. The income cutoff to receive legal aid is $1,580 a month for a single person ($2,580 for child protection cases) — if you earn more than that, you’re not entitled to legal aid.
In 2017-2018, legal aid made 26,000 client referrals — a number dwarfed by the more than 130,000 people who are forced to represent themselves in criminal, family or small-claims matters each year in B.C.
As a result, their cases take substantially longer, McCullough said. The hardest-hit area, he said, is family law, where individuals often make more than the cutoff to receive legal aid, but can’t afford a lawyer.
Currently, the average wait for a five-day criminal trial is more than nine months. The wait for a five-day hearing involving the Family Law Act or the Children, Family and Community Services Act is about 81Ú2 months, and for a five-day small claims matter, it’s almost 10 months.
Those numbers fail to meet standards set by the Office of the Chief Judge, which require a five-day criminal trial to be held within eight months, a five-day Children, Family and Community Services Act trial to be held within six months and a five-day small claims matter to be held within eight months.
McCullough, who has done 34 murder cases and 29 dangerous-offender cases, said his resolution is aimed at private bar lawyers not doing legal-aid work. “Those lawyers would absolutely benefit from a more robust justice system with fewer self-represented litigants before the court. They could get their cases before the court much more quickly.”
McCullough said what he wants is not a big ask.
The mandatory pro bono requirement would be fulfilled for two years if a lawyer takes on a summary proceeding criminal matter, one where some of the formal procedures are dispensed with.
It would be fulfilled for three years for a lawyer who takes on an immigration refugee claim, and four years if a lawyer takes on either a Family Law Act proceeding or a CFCSA proceeding.
“The reality is it’s a case that will take less than 10 hours to conclude.”
Lawyers who don’t want to do pro bono work could opt out by paying a penalty of an estimated $2,500 — the equivalent of two criminal cases or one family law case — every four years to the Legal Services Society, he said.
Lots of lawyers do pro bono work, but because of solicitor-client privilege, they can’t tell people they’re doing something free for Client X, McCullough said.
“My resolution will make pro bono work accountable. It will provide a level of accountability and auditability that simply does not exist.”
If adopted, the move would nearly double the number of family cases legal aid does each year, McCullough said. He estimates it would extend legal-aid coverage to about 4,000 people each year.
“It’s 100 per cent not about increasing the fees paid to lawyers. It’s strictly to do with expanding coverage to pick up self-represented litigants.”
Lawyers have to protect their self-regulation by acting in the public interest, he said.
“We have to show the public and the government that we, as a profession, will take steps to deal with the crisis in legal aid.”
If it’s adopted, it would raise the quality of litigation across the board, said McCullough.
“It would be fantastic for B.C. and fantastic for the courts.”
Some lawyers have reservations about McCullough’s resolution, however. Richard Schwartz, a criminal defence lawyer with a large legal-aid practice, said he’s worried the proposal will result in lawyers doing work in areas in which they’re not qualified.
“I am concerned that it is a proposal which simply asks lawyers to do even more pro bono work than they are already doing in order to ease the legal-aid funding concerns that we have long been trying to address,” Schwartz said.
“If the law society believes there is an obligation for lawyers to further contribute to the Legal Services Society’s budget … they should simply seek a mandate to tax individual lawyers. But this is a cumbersome and inefficient way to deal with the issues that plague our court systems.”
Victoria lawyer Kirk Karaszkiewicz also expressed concern about McCullough’s resolution.
“In my 14 years in B.C., I have found that lawyers give a great deal of their time uncompensated to help people,” Karaszkiewicz said.
Karaszkiewicz said lack of access to justice has less to do with lawyers not working hard enough than with system failures, arguing the government has failed to fund the justice system properly, from sheriffs and judges to other courtroom staff or legal aid for those who can’t afford a private lawyer.
Victoria lawyer Chris Considine said he has heard lawyers commenting that they’re very concerned about being required to do pro bono work in areas that they are not competent in.
“Very few lawyers know about criminal law. Very few lawyers, even less, know about family law. And so it would probably be a disservice to the public to suddenly foist somebody who’s not an expert in the area on the public. It would be like saying to a dermatologist: ‘We want you to do cardiac surgery,’ ” Considine said. “I don’t think the patient would be very pleased with that.”
In 2017-2018, legal aid made 19,179 client referrals for criminal-law services, 3,276 referrals for family-law services, 2,255 referrals for child-protection services and 1,327 referrals for immigration-law clients.
> As part of the review of legal aid in B.C., members of the public can provide written submissions until Nov. 23 at email@example.com.