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Legal aid

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Most liberal democracies consider that it is necessary to provide some level of legal aid to persons otherwise unable to afford legal representation. To fail to do so would deprive such persons of access to the court system. Alternately, they would be at a disadvantage in situations in which the state or a wealthy individual took them to court. This would violate the principles of equality before the law and due process under the rule of law.

A number of delivery models for legal aid have emerged. In a "staff attorney" model, lawyers are employed on salary solely to provide legal assistance to qualifying low-income clients, similar to staff doctors in a public hospital. In a "judicare" model, private lawyers and law firms are paid to handle cases from eligible clients alongside cases from fee-paying clients, much like doctors are paid to handle Medicare patients in the U.S.[1] The "community legal clinic" model comprises non-profit clinics serving a particular community through a broad range of legal services (e.g. representation, education, law reform) and provided by both lawyers and non-lawyers, similar to community health clinics.

Main article: Legal aid in the United States

In Scotland, legal aid is in principle available for all civil actions in the Court of Session and Sheriff Court with the significant exception of actions of defamation. It is also available for some statutory tribunals, such as the Immigration Appeal Adjudicator and the Social Security Commissioners.There is a separate system of criminal legal aid, and legal aid is also available for legal advice.

Legal aid is means-tested, and in practice only available to less than one-quarter of the population. It is administered by the Scottish Legal Aid Board. Legal Aid in Scotland is also available in Criminal Cases, where more than 90% of Summary applications are granted. An Interests of Justice test is applied, as well as a means test. In Solemn case (Jury Trials) The Court assesses Legal Aid.

Legal aid in England and Wales was originally established by the Legal Aid and Advice Act 1949.[2] Today legal aid in England and Wales costs the taxpayer £2bn a year - higher per capita spend than anywhere else in the world - and is available to around 29% of adults.[2]

Today, legal aid in England and Wales is administered by the Legal Services Commission, and is available for most criminal cases, and many types of civil cases with exceptions including libel, most personal injury cases (which are now dealt with under Conditional Fee Agreements, a species of contingency fee) and cases associated with the running of a business. Family cases are also often covered. Depending on the type of case, legal aid may or may not be means tested.

Although the European Courts have recently ruled that a lack of legal-aid-libel may be a breach of the right to a fair trial (following the McLibel case), it is still unclear how this will affect UK libel trials.

Criminal legal aid is generally provided through private firms of solicitors and barristers in private practice. There are a limited number of public defenders. Civil legal aid is provided through solicitors and barristers in private practice but also non-lawyers working in law centres and not-for-profit advice agencies.

The provision of legal aid is governed by the Access to Justice Act 1999 and supplementary legislation.

Australia has a federal system of Government comprising federal, state and territory jurisdictions. The Australian (Commonwealth) and State and Territory governments are each responsible for the provision of legal aid for matters arising under their laws.

Legal aid for both Commonwealth and State matters is primarily delivered through State and Territory legal aid commissions (LACs), which are independent statutory agencies established under State and Territory legislation. The Australian Government funds the provision of legal aid for Commonwealth family, civil and criminal law matters under agreements with State and Territory governments and LACs. The majority of Commonwealth matters fall within the family law jurisdiction.

Legal aid commissions use a mixed model to deliver legal representation services. A grant of assistance legal representation may be assigned to either a salaried in house lawyer or referred to a private legal practitioner. The mixed model is particularly advantageous for providing services to clients in regional areas and in cases where a conflict of interest means the same lawyer cannot represent both parties.

The Australian Government and most State and Territory Governments also fund community legal centres, which are independent, non-profit organisations which provide referral, advice and assistance to people with legal problems. Additionally, the Australian Government funds financial assistance for legal services under certain statutory schemes and legal services for Indigenous Australians.

By way of history, the Australian Government took its first major step towards a national system of legal aid when it established the Legal Services Bureaux in 1942. However, there was a move in the late 1970s to service delivery by the States and Territories (not the federal arm of government). In 1977, the Australian Government enacted the Commonwealth Legal Aid Commission Act 1977 (LAC Act) which established cooperative arrangements between the Australian Government and State and Territory governments under which legal aid would be provided by independent legal aid commissions to be established under State and Territory legislation. The process of establishing the LACs took a number of years. It commenced in 1976 with the establishment of the Legal Aid Commission of Western Australia and ended in 1990 with the establishment of the Legal Aid Commission of Tasmania. The cooperative arrangements that were established by the LAC Act provided for Commonwealth and State and Territory legal aid funding agreements, which began in 1987.

In July 1997, the Australian Government changed its arrangements to directly fund legal aid services for Commonwealth law matters. Under this arrangement the States and Territories fund assistance in respect of their own laws.

Legal aid in Hong Kong, which is a unitary jurisdiction, is solely provided through the Legal Aid Department, which is in turn overseen by the Legal Aid Services Council.

Administratively the Legal Aid Department was under the Administration Wing of the Chief Secretary's Office. In 2007 it was moved to the Home Affairs Bureau, which chiefly oversees cultural matters and local administration. This was heavily criticised by the opposition pro-democracy camp for further jeopardising neutrality of the provision of legal aid. They voted en bloc against the whole package of reorganisation of policy bureaux, of which the transfer of the Legal Aid Department was part of.

Legal aid in Ontario is administered by Legal Aid Ontario (LAO). Legal Aid Ontario provides funding to more than one million Ontario residents who need help with their legal problems. Legal aid is available to low income individuals and disadvantaged communities for a variety of legal problems, including criminal matters, family disputes, immigration and refugee hearings and poverty law issues such as basic employment rights, worker's compensation, landlord/tenant disputes, disability support and family benefits payments.

Legal Aid in Ontario is provided in a number of ways: the largest is a legal aid certificate program. The program provides low income people with certificates for a set number of hours of service to be provided by a private lawyer (i.e. a 'judicare' model). When the lawyer has completed their work, they bill Legal Aid Ontario for the services they provided. The certificate system is limited by the fact that many lawyers do not accept certificates because the hourly rates are too low. Lawyers are also wary of accepting cases because a certificate may not provide enough hours for the lawyer to provide adequate representation.

Ontario also has a community legal clinic system. Ontario’s 80 Community legal clinics are staffed by lawyers, community legal workers, and sometimes other professionals or law students. Each legal clinic is run by a volunteer board of directors composed of members from the community. Legal clinics provide information, representation, and advice on various kinds of legal issues, including social assistance, housing, refugee and immigration law, employment law, human rights, workers’ compensation, and the Canada Pension Plan. Many legal clinics also produce community legal education materials, offer workshops and information sessions, undertake law reform initiatives and engage in other community development activities including campaigns to change the law. Specialty legal clinics serve a particular community or focus on a specific area of law. Unlike general service legal clinics, most specialty legal clinics are not limited to serving a particular geographic area.

The clinic system is seen by many to be a preferred model of legal aid delivery. Services are provided at the community level and clients therefore benefit from the agency's connections to other services, e.g. health care. Legal problems are seen in their social context and issues of broader societal concern can be identified by clients and staff. The model is also financially beneficial in that resources are invested in the development of long term stable service located in and informed by the communities they serve. This way, resources can be devoted to legal work that is most beneficial to the community. Clinics are independently governed, but primarily funded by Legal Aid Ontario.

Ontario also provides immediate legal aid service to those appearing in court via duty counsel. Duty counsel are salaried lawyers and per diem lawyers who will represent low income people in criminal or family court. There is also a duty counsel program which provides representation to low income tenants appearing before the Ontario Rental Housing Tribunal.

Funding for Legal Aid in Ontario has been frozen for many years. While the Ontario Liberal Government recently announced a 19 million increase in funding over the next three years, this will do little to remedy the serious and chronic underfunding of the system. The lack of funding means that legal aid lawyers are paid half as much as other government funded lawyers and must do their work with a severe lack of resources. The result is that many new lawyers with massive student debt cannot consider legal aid careers, other lawyers leave the system frustrated at the lack of recognition for their work, and those hiring new lawyers in the system find it hard to find well qualified lawyers who will even consider taking legal aid jobs. This undermines the system's quality of service and sustainability.

There is currently significant pressure on the Ontario Government to increase funding to the Legal Aid system to ensure that the quality of service remains high and the program as a whole is sustainable. At the same time, Legal Aid Ontario has embarked on a restructuring program, which aims to shrink the number of community legal clinics in Ontario.

References

  1. ^ Alan W. Houseman & Linda E. Perle, Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States, pages 10 and 29. Center for Law and Social Policy, November 2003.
  2. ^ a b The Guardian, 12 March 2009, Legal aid in 21st-century Britain

See also Community Legal Education Ontario (CLEO) publication entitled "Getting legal help: Community Legal Clinics in Ontario" at [1].

See also

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