Block fees myths and misunderstandings
Posted on: Wednesday, July 21, 2010
Legal Aid Ontario (LAO) is committed to properly informing lawyers about its block fee pilot project. Below, find the facts behind some common block fees myths and misconceptions. For more information, see the block fees FAQ.
- The block fees are too low.
- The tariff increases are not included.
- LAO is cutting funding for lawyers’ fees on block fee cases.
Reality: The block fees paid in the first phase of the program are limited to the cases within the first phase pilot.
LAO did not cut funding for these cases. On the contrary, the total amount of funding went up because of the tariff increase. To be sure, lawyers are paid differently under a block fee system, but they are not paid less.
The block fee prices are based on the average cost of the cases and certificates included in the pilot. Because so many tier three lawyers act on these cases, the average cost if higher than it would have been had LAO simply averaged the cost across the tier levels. LAO then added the tariff increase to arrive at the final fee.
If the block fee prices seem low, it is because:
- the price of the block fee reflects the historical hourly rate;
- the cases in the pilot represent LAO’s lowest cost and simplest criminal certificates.
The second phase of block fees will establish block fees for most other criminal certificates (excluding Big Case Management (BCM) cases). The block fees for these cases will be higher because the average cost of these cases is higher. Also, LAO will introduce a wider range of enhancements or additional services to account for the higher cost and greater complexity of proceedings in indictable cases.
Finally, all block fee prices will rise substantially over time. The Memorandum of Understanding (MOU) commits to five more tariff increases, over the next five years. Each one will be incorporated into LAO’s block fees.
- Block fees don’t compensate lawyers for bail hearings, Charter motions, and pre-trials.
Reality: The block fees in the pilot phase include payments to lawyers for bail hearings, Charter motions and pre-trials.
LAO did not cut funding for bail hearings, motions, or pre-trials. LAO pays for bail hearings in only 15 per cent of the cases included in the pilot. LAO pays for Charter motions and pre-trials even less frequently in these types of cases. As a result, LAO “rolled up” the funding for those matters into a larger, simpler, more inclusive block fee for pleas and withdrawals.
LAO could have established a block fee for bail hearings, etc., in the first phase, but this would have reduced the block fee for pleas and withdrawals. This is because LAO’s budget for block fee cases must remain neutral. In other words, LAO cannot add funding for a new block fee or enhancement without subtracting the funding from somewhere else.
While in some cases, a lawyer may feel that he or she is being paid less because LAO did not create a block fee for motions, etc., lawyers who do a number of block fee matters should make up any difference over time when they take cases without motions, etc. In the end, block fees are designed to give lawyers greater control over how their time is spent on each individual matter while ensuring their compensation is similar to what they would have earned under the tariff.
The second phase of block fees will establish block fees for most other criminal certificates (excluding BCM cases). The block fee structure for these cases will be more complex. LAO will introduce a wider range of enhancements or additional services to account for the higher cost and greater complexity of proceedings in indictable cases.
LAO will ask lawyers whether enhancements such as bail hearings, motions, etc. should be established as permanent block fees during its block fee consultations with the bar.
- Block fees don’t pay lawyers for disbursements.
Reality: The block fees in the pilot phase include payments for the most common disbursements.
LAO did not cut funding for disbursements. Historically, LAO has paid less than $25 in disbursements in more than 90 per cent of the cases in the block fee pilot. As a result, LAO “rolled up” the funding for the most common disbursements into the larger, simpler, and more inclusive block fees for pleas and withdrawals.
The block fee has been calculated to include payments for the following disbursements:
- binding costs
- court filing fees, including motion to be removed as solicitor of record
- Crown disclosure
- fax charges
- service and filing of documents within Ontario
- telephone charges, including long distance telephone charges
Lawyers may continue to bill LAO for more expensive disbursements, such as medical reports and transcripts, on block fee cases.
LAO’s disbursement policy for all other criminal cases remains the same.
- Block fees don’t compensate lawyers if charges are heard separately.
Reality: LAO will pay separate block fees fee if charges are heard separately.
Where charges are resolved separately (i.e. on different dates or before different judges), lawyers can bill LAO separately for two appearances.
Where matters proceed and are resolved separately, lawyers will be able to bill block fee charges for each separately heard matter.
- LAO has diverted some or all of the money for tariff increases to its deficit.
Reality: All of the new funding designated for tariff enhancements has been put into tariff enhancements. None of the new tariff money is being used to fund LAO’s deficit.
LAO has already implemented the first two tariff increases set out in the MOU for a total increase of 10 per cent to the hourly rate. These increases include a 5 per cent increase for certificates issued on or after Feb. 1, 2010 and a second 5 per cent increase for certificates issued on or after April 1, 2010.
All of the tariff increases set out in the MOU have been codified in the regulations under the Legal Aid Services Act.
The MOU and the regulations commit to five more tariff increases, as well as establishing the new, higher complex case rate. At the conclusion of the MOU, the hourly rate for criminal certificate work will range from $109 - $161/hr.
- LAO eliminated tiers to save money on payments to tier three lawyers.
- Block fees penalize tier three lawyers.
- Block fees will drive experienced lawyers away from legal aid.
Reality: For the pilot phase, LAO is not paying block fees on the basis of tiers or levels of experience. In other words, LAO is paying all lawyers the same fees, irrespective of their experience or year of call.
LAO’s block fee prices are heavily weighted towards senior lawyers and the tier three tariff. This is because LAO currently pays more than 70 per cent of the fees on block fee-eligible certificates to tier three lawyers. As a result, the difference between the single block fee and a “tiered” block fee for experienced lawyers is not very great: A tier three block fee for guilty pleas would be only $17 higher than the single block fee. Tiered block fees do, however, have a significant impact on young lawyers. A tier one block fee for guilty pleas would be $73 lower than LAO’s uniform block fee.
During the pilot, LAO will be testing whether a uniform block fee helps support and recruit young criminal lawyers by making legal aid work financially more attractive to them while not having a material impact on fees for senior lawyers.
These considerations do not necessarily apply to more complex criminal cases. LAO must ensure that lawyers’ skills match the complexity of the case.
LAO will be consulting on whether and how tiers should apply to block fee cases.
- LAO has already made up its mind on block fees.
- LAO will not be consulting lawyers on block fees.
Reality: The MOU commits to ongoing consultations with the Criminal Lawyers’ Association (CLA) and the Ministry of the Attorney General (MAG) on block fees. This commitment is more than a formality: LAO needs the advice of the CLA and the bar to ensure block fees are successful.
LAO will consult with the CLA, criminal lawyers who are not members of the CLA, and other stakeholders to help analyze the block fee pilot, including recommendations for reform or amendment. LAO will also consult with stakeholders to help design and analyze the subsequent expansion of block fees beyond the pilot.
LAO is also developing an evaluation strategy for block fees.
LAO made a number of policy decisions respecting the design and implementation of the pilot, including decisions regarding experience tiers and the cases included in the pilot. These decisions are not conclusive or determinative of LAO’s long-term policies on block fee cases, nor have they been enacted in the legislation or regulations.
By their very nature, pilot programs test assumptions in order to learn important lessons. The pilot phase consultations and evaluation will inform the long-term decisions on block fees, including decisions respecting:
- the structure and sum of block fees paid;
- discretion and enhancements;
- the effect of block fees on lawyers;
- the effect of block fees on LAO administration and finances;
- accountability and quality programs for block fees.
- LAO is paying block fees for trials, indictable matters and appeals.
Reality: The block fee pilot does not include block fees for trials, indictable matters or appeals. The pilot is limited to a range of summary conviction pleas and withdrawals. The pilot includes approximately 20 per cent of LAO’s criminal certificates. These cases represent LAO’s lowest cost and simplest criminal certificates.
The following criminal charges/proceedings are excluded from the pilot:
- indictable charges
- BCM cases
- hybrid charges where the Crown proceeds by way of indictment
- Youth Criminal Justice Act (YCJA) matters
- Ontario Review Board (ORB) proceedings
During the pilot, the matters on this list will continue to be paid according to the regular criminal tariff.
Family certificates and refugee certificates are not affected.
The MAG/CLA/LAO Memorandum of Understanding commits to expand block fees to other “standard” criminal cases, including remaining summary cases and many indictable matters, in 2011. The MOU also commits to introduce block fees for trials.
For further information
If you have any questions, or require further information, please contact:
Lawyer Service Centre
416-979-9934 or 1-866-979-9934
Monday to Friday 8:00 a.m. to 5:00 p.m. EST