On April 6, 2010, Legal Aid Alberta (LAA) implemented a change that saw the removal of choice of counsel. Since April, we have heard suggestions from roster lawyers that LAA may use this amendment to direct clients to roster lawyers who will provide the lowest cost resolution for the client (guilty plea), or to favoured lawyers. The goal of this amendment is not to simply expedite client matters or manipulate the flow of legal aid certificates. The amendment exists to support our new service delivery model, and the initiatives within it, and to aid in keeping the appointment of Counsel timely.
Previous to the change, Rule 61 stated the following:
The Legal Aid Society may allow Legal Aid Clients to choose Lawyers from anywhere in the Province of Alberta, but the Society is not obligated to reimburse Lawyers for their travel time and travel expenses unless there are no available Lawyers in the area. (The Legal Aid Society of Alberta Rules, 2004)
This rule has served as barrier to LAA in managing the quality and cost of services for complex cases, and to introducing new initiatives as recommended in the LAA Review. The success of new initiatives, such as the Expanded Duty Counsel Program or the provision of unbundled service offered through the Legal Services Centre), rely on LAA maintaining authority over appointing.
For clarification, the new rule and procedure LAA is using for directing clients to lawyers is laid out below.
Rule 61 has been revised and now states that:
Legal Aid Alberta will provide a staff lawyer or a lawyer from the roster to act on behalf of the client. Legal Aid Alberta may provide choice of counsel for designated criminal offences or civil matters, however choice of counsel is always subject to the approval of the CEO or designate.
The following procedure will be followed in implementing this Rule:
A client is entitled to indicate his/her preferred Counsel; however, LAA will determine whether the client’s preferred Counsel can be appointed in accordance with the following:
1. If the client has an outstanding and not yet completed certificate issued to a roster lawyer for a criminal matter, coverage for any new or additional charges will be issued to the same lawyer appointed on the outstanding certificate.
2. LAA will refer a client’s criminal matters to expanded Duty Counsel if the client’s matters fall within the list of matters designated for expanded Duty Counsel (see Appendix A) and clause 1 above does not apply.
3. Criminal matters for youth in Edmonton and Calgary will be referred to YCDO unless there is a Conflict.
4. LAA will refer immigration matters to Staff Lawyers on the LSC Immigration Team in accordance with the capacity of the Staff Lawyers to accept matters.
5. A Family matter will be referred to alternative dispute resolution (including mediation or the Family Settlement Service) if the matter is deemed appropriate for these services.
6. A Limited Scope Certificate or full certificate in a Family matter or Child Welfare matter will be referred to FLO/CALO if there is no conflict and if FLO/CALO has capacity to accept the matter.
7. All clients will receive services from Staff Lawyers at LSCs whenever deemed appropriate.
If Staff Counsel is not being appointed, LAA will attempt to appoint the client’s preferred Counsel, taking into consideration the following:
1. The client’s preference (including whether the client’s preferred Counsel is willing to accept a legal aid referral and has an office located within the Region where services will be provided).
2. the client’s unique needs (for example, language, Aboriginal ancestry, or disability); and
3. the demands and complexity of the case