Standard Criminal Case Advisory Committee Issues for Discussion 2 nd Meeting November 23, 2009

FOR DISCUSSION PURPOSES ONLY 2 Introduction This material includes issues and ideas for several standard criminal case topics, including: –Standard Criminal Cases –Block Fees –Compensation –Quality/Efficiency –Access and Availability –Building and Mentoring Criminal Bar –Highest Priorities For Potential New Funding The issues and ideas are not exhaustive. They are intended to assist the committee’s discussions. Most topics/ideas were raised at the committee’s first meeting. Key issues for the committee to consider include: Which choices/recommendations benefit criminal legal aid clients most? Which choices/recommendations best support long-term criminal legal aid quality, efficiency, sustainability and access?

FOR DISCUSSION PURPOSES ONLY 3 Profile of Standard Criminal Cases

FOR DISCUSSION PURPOSES ONLY 4 LAO’s Criminal Caseload Charge Certificates Issued 2008/09 Homicide 646 Sexual Assault 2,490 Narcotics – Cocaine & Heroin 9,734 Robbery 3,924 Break & Enter 5,315 Weapons Offences 2,882 Assault 16,246 Theft 8,657 Threatening Death/Bodily Harm 1,822 Fraud 1,579 Impaired Driving 1,458 Other Vehicle Offences 1,073 Mischief 1,464 Other Drug Offences 245 Fail to Comply 7,168 Other 3,748 Criminal Total 68,451

FOR DISCUSSION PURPOSES ONLY 5 Standard Criminal Cases Standard Criminal Cases make up majority of LAO’ criminal caseload: BCM Cases per year:Approx /yr. BCM Annual Budget:Approx. $25M/yr. Standard Criminal Cases per year:Approx. 68,000/yr. Standard Criminal Annual Budget:Approx. $88M/yr. More than 60% of LAO’s standard cases proceed by way of summary conviction –92% of summary matters end in pleas or withdrawals; 8% in trial –Four charges (assault, theft, mischief, fail to comply) make up approx. 50% of all criminal certificates, at cost of approx. $30M/year. Majority of criminal duty counsel work is on standard cases as well.

FOR DISCUSSION PURPOSES ONLY 6 Average Fees Paid -- Non-BCM Cases Summary Matters (including all summary and hydrid cases that proceed by way of summary conviction) Guilty Plea$658 Withdrawal$933 Contested Trial$1,535 Indictment I Guilty Plea$1,371 Withdrawal$1,382 Contested Trial$3,612 Indictment II Guilty Plea$1,737 Withdrawal$1,592 Contested Trial$4,675 BCM CasesAverage Fee:$21,509 (Est.)

Profile of Criminal Bar Working On Standard Criminal Cases

FOR DISCUSSION PURPOSES ONLY 8 Who Does Criminal Legal Aid? Small # of lawyers take majority of standard criminal certificates: –In 2008/09, 408 criminal lawyers acknowledged 41,740 certificates –In other words, 16% of criminal panel acknowledged 61% of criminal certificates Details: –20 lawyers acknowledged more than 200 certificates –135 lawyers acknowledged between –253 lawyers acknowledged between Lawyers with high-volume practices typically don’t take BCM cases

FOR DISCUSSION PURPOSES ONLY 9 Busiest 100 Criminal Lawyers Profile of LAO’s 100 Highest Volume Criminal Lawyers (2008/09): –Total certificates acknowledged: 21,121 (31% of all criminal certificates) –Average certificates per lawyer: 211 –Average annual billings: $180,018 Over 5 years, many in top 100 could bill up to $1M in fees

FOR DISCUSSION PURPOSES ONLY 10 Block Fees for Standard Criminal Matters

FOR DISCUSSION PURPOSES ONLY 11 Block Fees – The Public Interest Block fees should: –Promote/“incent” high- quality client services –Promote early resolution and systemic efficiency –Reward high quality/efficient lawyers –Increase “bottom line” for legal aid lawyers –Reduce red tape –Improve predictability and timing of LAO payments

FOR DISCUSSION PURPOSES ONLY 12 Block Fees -- Lessons Learned Block fees should be simple and inclusive: –Fees should cover legal fees, most common disbursements, and majority of discretionary requests –Fees should avoid overly complex system with multiple fees for different charges, activities or proceedings Block fees must protect clients from: –Risk of lawyers cutting corners, avoiding clients w. unique or high needs –“Dump trucks,” inappropriate guilty pleas LAO must monitor/manage finances closely

FOR DISCUSSION PURPOSES ONLY 13 Block Fees – General What kinds of cases are a good “fit” for block fees? –Comparatively simple, high-volume cases in which lawyer’s billings fall into narrow, predictable range –Best approach is to set simple “fixed” fee for high % of cases and allow discretion in extraordinary circumstances when appropriate Block fees are possible for trials, stages of proceedings, more serious cases but “pricing” is more complex Different structures/kinds of block fees can have significant impact on client quality and lawyer practices/incentives

FOR DISCUSSION PURPOSES ONLY 14 Block Fees – Est. Fees for Summary Matters Estimating block fees requires complex financial modeling – See Appendix A for explanation of how fees were estimated LAO’s analysis is cost neutral LAO estimate of block fees for summary matters: –Guilty Pleas: $575 - $600 –Stay/Withdrawals: $800 - $825 Estimates for trials, indictable matters would be higher Block fee estimates are lower than average case costs, but estimate sets aside $ for extraordinary circumstances (discretion)/extraordinary disbursements Fees could increase if more funding were available

Compensation for Standard Criminal Matters

FOR DISCUSSION PURPOSES ONLY 16 Compensation Issues LAO has prepared general tariff analysis/estimates for committee’s discussion and review. The purpose of this analysis is to identify the general range and cost of potential tariff enhancements and to help the committee identify priorities. The estimates included in this presentation are subject to several variables and assumptions. They must be taken as general estimates for discussion purposes only.

FOR DISCUSSION PURPOSES ONLY 17 Compensation Issues Standard Criminal Case Funding Information/Assumptions Annual Standard Criminal Budget (not including BCM budget): $88M/yr. –Budget includes fees for both standard certificates and criminal duty counsel If legal aid enhancement funds are divided based on historic allocations between service areas, the amount available for standard criminal cases is approx. $25M/yr. –Additional annual funding available for all legal aid enhancements: $60M/yr. –MAG’s four year $150M announcement increases LAO allocations by $15M, $30M, $45M and $60M over four years. Every $10/hr tariff increase for all criminal lawyers costs approximately $11M/yr. (See chart 1) Every $10/hr tariff increase for all certificate lawyers (including criminal, family and refugee) costs approximately $18M/yr. (See chart 2)

FOR DISCUSSION PURPOSES ONLY 18 Compensation Issues Next two slides presents estimates of additional funding needed for enhanced tariffs. The first slide presents tariff estimates for all criminal cases (including BCM and duty counsel). The second slide presents estimates for all criminal, family and refugee certificate and duty counsel fees. Important Notes: Enhanced funding could be directed to certain tiers or cases. For example, –Tier 3 hourly rates be higher if greater proportion of funding was directed to Tier 3 lawyers. –Funding could be directed to most complex standard criminal cases and/or highest quality criminal lawyers, resulting in a higher tariff paid to those lawyers and/or cases. These estimates do not include estimates of the potential costs or efficiencies of other standard criminal initiatives. For example, –Estimates do not factor in the potential new standard criminal costs, including improved duty counsel, administration, “total compensation” initiatives (such as support for pensions, students, non-tariff supports), etc. –Nor do estimates factor in potential efficiencies resulting from better case management, quality improvements, etc.

FOR DISCUSSION PURPOSES ONLY 19 Chart 1 – Estimated Funds Needed to Increase Criminal Fees Notes and Qualifications Estimates are subject to several variables and assumptions and must be taken as general estimates for discussion purposes only. Estimates assume 3 tiers Estimates do not include potential costs or efficiencies of other initiatives Current Cost +$5.5 M +$11.0 M +$14.9 M +$26.2 M +$37.6 M +$49.0 M

FOR DISCUSSION PURPOSES ONLY 20 Chart 2 – Estimated Funds Needed to Increase All Certificate Fees Notes and Qualifications Estimates are subject to several variables and assumptions and must be taken as general estimates for discussion purposes only. Estimates assume 3 tiers Estimates do not include potential costs or efficiencies of other initiatives Current Cost +$9.2 M +$18.4 M +$24.8 M +$43.8 M +$62.7 M +$81.7 M

Questions for Standard Criminal Case Advisory Committee

FOR DISCUSSION PURPOSES ONLY 22 Questions – Case Selection What cases are most appropriate for block fees? –Do you believe summary pleas/withdrawals are a good place to start? –Do you think LAO should start with a pilot? –Do block fees have potential for indictable matters? –If so, do some indictable cases (or stages of proceedings within an indictable case) appear better suited for block fees? Are some cases or matters inappropriate for block fees? Other comments?

FOR DISCUSSION PURPOSES ONLY 23 Questions – Quality/Efficiency How can LAO leverage increased compensation to improve the quality and efficiency of standard criminal cases? –Should LAO limit block fees to high quality lawyers? –Should LAO establish higher quality standards/monitoring? –What else can LAO do to improve quality of standard cases? How can LAO avoid poor quality lawyers/“dump trucks?” –What are the indicators of poor quality lawyers/dump trucks? –Should LAO “screen out” poor quality lawyers/dump trucks? –Should LAO place limits on the number of pleas in certain time-period?

FOR DISCUSSION PURPOSES ONLY 24 Questions – Quality/Efficiency How can LAO ensure clients with unique or high needs (Aboriginal, clients with mental health issues, etc.) receive high-quality representation? –Should block fee program include an extraordinary funding budget to compensate counsel for cases with complex client needs? –Permit Gladue tariff hours? –Other initiatives? Should LAO have an expedited process for removing poor quality lawyers from LAO panels? How can LAO support training/mentoring for young criminal lawyers? Other comments?

FOR DISCUSSION PURPOSES ONLY 25 Questions – Ensuring Access/Availability How can LAO leverage increased compensation to improve access to high-quality criminal lawyers across Ontario? –Contracts with high-quality criminal lawyers? –Innovative LAO supports for criminal bar? –Initiatives to build/mentor criminal bar? How can LAO leverage increased compensation to improve access for Aboriginal clients, rural clients, clients with linguistic or cultural needs? Other comments?

FOR DISCUSSION PURPOSES ONLY 26 Questions – Building/Supporting Bar How can LAO leverage increased compensation to build and support the criminal bar? How can LAO better support lawyers with a high-volume legal aid practice? –Funding for students/articles? –Innovative payment procedures? (Retainers? Advance payments?) –Delegating some decision-making to proven lawyers? –Improve the speed or predictability of payment processes? Should LAO develop “total compensation” initiatives to support criminal lawyers (pensions? other initiatives?) Other comments?

FOR DISCUSSION PURPOSES ONLY 27 Questions – Funding Priorities What is committee’s advice about priorities for potential new funding for standard criminal cases? –Increased compensation? Increase for all criminal lawyers or highest quality lawyers? –More funding for specific cases or proceedings? Summary pleas/withdrawals? Trials? Indictable pleas/withdrawals? Trials? –Should more resources go to clients with unique or high needs? –Should funding be used to support mentoring and junior counsel? If so, how? –Should funding be used to develop initiatives to increase “total compensation” of criminal lawyers (articling students? pensions? etc)?

FOR DISCUSSION PURPOSES ONLY 28 Questions – Funding Priorities Which choices/recommendations benefit criminal clients the most? Which choices/recommendations best support long-term quality, efficiency, sustainability and access?

Appendix A Estimating Block Fees for Summary Matters

FOR DISCUSSION PURPOSES ONLY 30 Block Fees – Estimating “Prices” The “price” of a block fee has to consider three variables: Sum and range of fees paid to lawyers Disbursements Discretion The “price” of a block fee should not be average case cost Simply paying average doesn’t allow extraordinary compensation/discretion for complex cases As a result, clients with unique/high needs and their lawyers would likely suffer Better approach: Block fees but allow discretion when appropriate

FOR DISCUSSION PURPOSES ONLY 31 Summary Pleas/Withdrawals Summary conviction pleas/withdrawals have high potential for block fees Implementing block fees for these matters would cover high proportion of criminal certificates Why? –More than 60% of LAO’s criminal certificates are for summary matters (summary conviction/hybrid by way of summary conviction) –92% of summary matters end in pleas or withdrawals; 8% in trial –Summary pleas/withdrawals are comparatively simple, high-volume cases in which lawyer’s billings fall into narrow, predictable range

FOR DISCUSSION PURPOSES ONLY 32 Average LAO fees paid for summary plea/withdrawals: Plea:$658 Withdrawal:$933 Note (1): Averages include fees for all tariff items (regular hours, motions, bail, JTPs, discretion). Note (2): There is a small but significant number of expensive cases. Setting block fee at average would place heavy financial pressures/ burden on hard to serve clients, lawyers with complex matters Current LAO Fees In Summary Matters 32Block Fees - Financial Modeling and Analysis DataHighlights

FOR DISCUSSION PURPOSES ONLY 33 For summary pleas and withdrawals, the great majority of disbursements are less than $25 (91% -- pleas 85% -- withdrawals) As a result, most disbursements should be ‘prepaid” with the block fee Expensive disbursements should be covered by a separate budget for extraordinary disbursements Disbursements In Summary Matters 33Block Fees - Financial Modeling and Analysis DataHighlights

FOR DISCUSSION PURPOSES ONLY 34 Block Fees – Est. Fees for Summary Matters Estimating block fees requires complex financial modeling – See Appendix A for explanation of how fees were estimated LAO’s analysis is cost neutral LAO estimate of block fees for summary matters: –Guilty Pleas: $575 - $600 –Stay/Withdrawals: $800 - $825 Estimates for trials, indictable matters would be higher Block fee estimates are lower than average case costs, but estimate sets aside $ for extraordinary circumstances (discretion)/extraordinary disbursements Fees could increase if more funding were available