David Duncan (Focus Consultants)

In general terms, the pre-pilot selected experienced and well-regarded lawyers for the contracts in both communities. It also realized cost savings in the order of 19%, compared to historical averages for tariff cases, based on preliminary data reports from the LSS Finance Department, which do not take into account administrative time and expenditures devoted to the pilot. The savings were exclusively in category III offences. The administrative relationship between the contract administrators and participating lawyers was judged very positively by both sets of parties.

The majority of participating lawyers did not find the level of profit acceptable in the block contract, and there is concern that - despite the clear intent of "going for quality" in the pre-pilot - over time LSS’s financial objectives will supersede a concern for quality in block contracts.

These and other findings suggest several broad-scale issues and questions that deserve LSS’s attention prior to any expansion of block contracting:

• the need to establish a clearly-defined approach to ensure quality in a long-term block contract system. Several suggestions are made in this report, including a system based on admission of lawyers to a block "roster" eligible to receive RFPs based on quality criteria, the use of RFP criteria that give extra weight to quality over price, direct negotiations with experienced lawyers around set prices, and development of monitoring systems capable of following patterns of practice.
• the length of time it took to assign all the young offender cases in Vancouver (7-8 months), plus the fact that all cases referred to the block contractors were ones in which preferred counsel had been designated, raise questions about the rationale for using a block contracting system in communities using a staff lawyer system. In general, it suggests the need for closer examination of situations/communities where block contracting could be an asset rather than an irritant.
• there is a need to assess the trade-offs between cost savings through block contracting, and factors such as the value of choice of counsel, the morale/trust of the bar, and the need to help maintain access for younger lawyers to practice criminal law.
• a clearer articulation should be made of the perceived advantages of block contracting in LSS’s corporate strategy, and tested in an evaluation of a larger pilot. For example, could a block contracting system be used specifically to raise quality of service in certain situations?

There are other, more specific issues that should be reviewed prior to or doing an expanded pilot. These include:

• the desirability of distributing RFPs as widely as was done in Victoria and Vancouver.
• additional information that needs to be given to potential bidders in an RFP
• consideration of certain exclusions from the case mix
• a policy for reimbursement, or other arrangements, to cover unreasonable complications in cases
• an assessment of how block contracts could be effectively managed within a larger firm

This report presents the evaluation findings of the Legal Services Society’s "pre-pilot" project involving block contracting of criminal legal aid cases. The pre-pilot involved six contracts for blocks of 50 cases each, consisting of two blocks of youth cases in Vancouver, and four blocks (two youths and two adults) in Victoria. Cases were assigned starting in September 1997; it took from three to eight months to assign 100% of the cases, depending on the location and type of block, so assignment of cases was substantially complete by May 1998. At the time of the evaluation of the initiative, approximately two-thirds of the cases had been completed.

The evaluation took place in August and September of 1998. The methodology consisted of interviews with the two contract administrators in Victoria and Vancouver, and seven (one block was shared between two lawyers) lawyers who had contracted with LSS. All except one interview was face-to-face, and lasted from 1 ¹/₂ to 2 ¹/₂ hours. The interview guides are included as Appendix 1 and 2 to this report.

There were several limitations to this evaluation. These pertain not to the methodology, but to the overall scope of the evaluation and the questions it could reasonably be expected to answer:

No interviewing was undertaken with lawyers who bid on the blocks but were not selected, with crown counsel, judges, the Law Society or the Criminal Bar Association. This limited the degree to which one could analyse concerns of the wider legal community, impacts on other lawyers and operational advantages/disadvantages for crown and judges who related directly to the lawyers.

There were particular dynamics both in Vancouver and Victoria which are unlikely to exist in other communities. Findings which are strongly influenced by local factors are not necessarily replicable in other communities. Furthermore, although some information is provided about impacts on non-participating lawyers, the contracts were too small and of too limited duration to make definitive comments in this area. It is also not possible to comment on whether LSS’s criteria for contracting might change over time, a matter of concern among the bar.

Firms selected were almost all sole practitioners. The evaluation can tell us little about block contracts handled by large firms.

Only two blocks were of adult cases. Although some respondents claimed that dynamics were different between adult and youth cases, the overall test of the block contracting approach in adult cases is limited.

The total number of lawyers interviewed was seven. They were all assured confidentiality. There was a strong need for this assurance in regard to only a few questions. In these instances no distinction is made in this report between male/female respondents (all are reported as "he"), nor between Victoria/Vancouver respondents or adult/YOA blocks.

The intent of this report is not to provide an overall recommendation about whether to proceed with a larger pilot, or with block contracting as a whole. Rather, it is to highlight problems, successes and issues that arose in the pre-pilot and which should be considered either as part of the decision whether to proceed, or as part of processes/procedures if LSS does decide to proceed with an expanded block contracting process.

Rather than provide extensive description of procedures (already capably done in the Procedure Manual developed by Roland Kuczma in September, 1997), this report attempts to highlight issues within six broad theme areas. The themes and issues are presented below.

Several points concerning the RFP process deserve attention:

The LSS distributed the RFP widely in both communities (to 240 lawyers in Vancouver, resulting in 18 proposals, and to 60-80 lawyers in Victoria, resulting in 20 proposals). It also chose to contract with experienced lawyers of high standing in the legal community, and carried out this intent with a careful examination of the proposals, review of the lawyers’ record with LSS, checks with references, and various forms of review by experienced counsel in the community. The lowest bid was not accepted, and bidders in the lower ranges did not comprise the majority of the bids accepted.

The relatively small number of responses, (especially in Vancouver) combined with LSS’s intent to attract quality counsel, raise the question of the utility and purpose of a large RFP distribution. A smaller distribution could make clear LSS’s commitment to contracting with experienced counsel, and reduce (in the long run) LSS’s administrative overheads. LSS might wish to consider creating a roster of firms that would be eligible to receive RFP’s. LSS could either send a widely-distributed invitation for applications to the roster, or target specific firms for inclusion. Either way, inclusion would ultimately be based on clearly articulated criteria such as years of experience, percentage of practice in criminal law, and specific checks regarding reputation within the legal community.

A roster could be the basis either for an RFP system, or direct contracting system. It could be reviewed periodically or added to on an ongoing basis.

The RFP Process is one that not only requests information from, but also provides information to the recipient. Respondents in this evaluation discussed various concerns and questions they had when they received the RFP. Many of their concerns were subsequently alleviated in discussion with the contract administrators, and many were reflected in the Procedure Manual for any future block contracting. However, inclusion of the following information in any future RFPs would also assist the potential bidders in submitting an informed bid:

• a listing of the 5 criteria on which assessment of the proposals was based, and the relative weight (expressed as a percentage) given to each criterion.
• information on the ceiling price that LSS will consider, and its relation to average LSS tariff costs for comparable cases.
• the exact number of blocks being contracted. (A proponent may bid differently if he/she knows that there is only one as opposed to two or three blocks being contracted.)
• a "best estimate" of the time period over which cases will be contracted. Contractors assess capacity, work flow, and holiday periods based on these estimates. If it is not possible to state the expected time frame with accuracy, a range of time would be helpful.
• approximate percentage of referrals involving clients who have requested a specific counsel. Although the Procedure Manual states that referrals will "not exclude" such clients, in fact the vast majority of cases in the communities (especially in Vancouver) included them. At times this created awkward dynamics (although for the most part minor) between lawyers and clients, and between lawyers and colleagues who had been specified. This information would simply give bidders a sense of potential personal dynamics.
• specific quality assurance requirements to be fulfilled by the contractor. Some are included in the Procedure Manual, but "minimum number of years since call" and "minimum percentage of practice in criminal law" might be stipulated as prerequisites for submitting a bid (especially if there has been no prior screening through a roster system).

There were various motivations for submitting a bid expressed by the respondents:

• to influence how block contracting would be conducted (notwithstanding reservations about the concept). This was usually expressed as a concern that it be done by qualified counsel, or to "keep LSS honest"
• to protect "market share" (ie. where the lawyer’s practise already consisted of a high percentage of such cases and he did not want to lose that share)
• to expand practise in a particular field
• to make a reasonable business transaction (ie. to achieve some benefit from receiving a block of cases that might not be realized on a smaller base of tariff referrals)

In both communities, participating lawyers expressed considerable appreciation of the management styles of the LSS contract administrators. They were seen as efficient and responsive, and when necessary flexible. The administrators in turn had a high regard for the integrity, experience and judgement of the lawyers. Strictly from a standpoint of communication and mutual respect, the administration of the block contracts was very effective.

Flexibility was especially important in the pre-pilot because the contract administrators were feeling their way through issues that inevitably arise in a new initiative. One contract administrator noted that if the contracts had been with larger firms with a strong civil component to their practice, there might have been a more litigious approach towards contract matters that could have impeded speedy resolution of problems. It was emphasized that any future contracts be carefully reviewed by LSS general counsel to minimize the likelihood of litigation.

Administrative requirements for the block were seen as no more onerous than for tariff cases, as essentially the same forms are used. Several respondents noted that in cases where subsequent offences arise in the three months following referral, only one billing form is used. In terms of LSS’s Management Information System, subsequent charges within the three months go unrecorded.

The primary issues that required resolution between LSS contract administrators and participating lawyers were:

geographic area of courts that lawyers would be required to attend. Decisions on this matter would have to be made on a community by community basis for any block contracts in future.

case mix or change of mix (see discussion in section 2.3)

change of counsel/referral back to counsel of choice. This need was very infrequent, but was usually because of a perceived conflict of interest or because of a need to have the client served by counsel he/she had had before. Requests of the former type were usually straight forward. Those of the latter type required more explanation, but appear to have been resolved without significant difficulty. There was an understanding on both sides that justification for a change of counsel was not a matter of client preference, but of compelling reasons why the particular nature of the case at hand meant the client would be better served by counsel who had had prior lengthy experience with the client (eg. if the client had mental health problems).

In this context, it was important for the LSS contract administrator to make clear to legal aid lawyers in the wider community that they could not meet with the client several times before advising the client to apply for legal aid, in the hope of establishing a "prior relationship" that might justify exclusion from the block. If block contracting were introduced to new communities, the local LSS contract administrator would need to give ample notice to all criminal legal aid lawyers in the community about the impending changes in procedures around choice of counsel.

Three general issues were raised by respondents in respect to the types of cases involved in the blocks and the length of time required to process them.

In Victoria the case mix of category one, two and three offences did not materialize as projected, which led to negotiations between the lawyers and LSS to adjust the mix. Although irritating for some of the lawyers at the time, the increase in the proportion of category II offences compared to category I offences ultimately proved to be acceptable, as the large number of breaches in category I cases was proving time-consuming (see below).

Errors in projections could occur in other communities in an expanded block system. The contract should provide for some sort of formula to adjust costs if the mix cannot be achieved by the LSS.

LSS Department of Finance data show that with 95% of the cases reported, Victoria blocks took from 3 to 4 months to assign for adult cases and 4-6 months for youth cases. Vancouver youth cases took 7-8 months to assign.

In both cases this was longer than expected. The factors that extended the time period were:

• the 3 month rule (ie. separate charges arising from discrete incidents were added to the same case rather than comprising separate referrals)
• the fact that in Vancouver, cases where choice of counsel was not specified were referred to LSS staff lawyers. This had the effect of seriously reducing the speed of assignment of block cases
• in Victoria, during the first month the administrator was more flexible with legal aid lawyers who had met with clients several times prior to telling them to apply for legal aid. These cases were not referred to the block contractors
• the case mix. As noted above, there were fewer category 1 offences than anticipated, so the overall completion of the block was held up not by the overall number of cases, but by cases in particular categories.

Although LSS has specified certain category 3 offences for exclusion from the block, the rationale for why others remain in the block is not clearly articulated. It presumably relates to a sense of seriousness of the offence, potential for case complications, average time requirements, and predicability of process.

Participating lawyers suggested a number of other exclusions from the block:

• breaches - a majority felt these category I offences were more complicated than category II offences and should be excluded. For youth cases this was because breaches were often in the context of a "spree" of offences, and also involved resource questions. For adult cases, breaches often involved family issues. Both involved contacts with lawyers who handled the original offence, and familiarization with the original offence itself. The majority of respondents felt that breaches should remain attached to the lawyer involved with the original offence. One respondent felt that breaches and similar category 1 offences should be handled by duty counsel.

A minority of respondents stated that the court outcomes for breaches were simpler and more formulaic than some other offences, and should therefore not be excluded. It was also stated that the block contract price for a breach was better that the tariff price in any event. One respondent pointed out that in larger and longer block contracting processes, the "original lawyer" in many breach cases would probably be the contractor him/herself.

• multi-counsel cases. The concern here was with the amount of communication and schedule coordination required

• serious cases of violence and narcotics
• sexual assault, even where proceeding summarily, and assault causing bodily harm

Naturally, there is an element of risk in any bid that needs to be balanced against the advantages of a guaranteed volume of cases. From this perspective, it is easy to dismiss suggestions to remove more time-intensive cases from the mix as merely being a way of achieving a "risk-free" contract. However, it should also be appreciated that the majority of contractors do not see the block contract as a profitable process compared to the rest of their practice, so any case that might seriously skew their average time for the block contract is worrisome.

In addressing this issue, differentiation should be made between 1) relatively foreseeable time demands of whole categories of offences, and 2) unpredictable complications of particular cases. In the first situation, LSS could simply state that the time demands are predictable and are part of the determination of price in any bidding context. To address the second situation, LSS could establish a small reserve for each block or group of blocks, which could be used to offset serious time overruns on particular cases. LSS could set guidelines for usage of the reserve, and block contractors would have to justify requests for a payment from the reserve.

LSS Finance Department data (not included in this report) show that, based on 82% (246/300) of the completed block cases, overall savings of approximately 19% ($23,000/$123,000) were realized through the block system in comparison with historical averages for comparable tariff cases. Savings were exclusively in category III cases, and were proportionately higher in adult cases than in youth cases.

Ironically, the cost of category I block offences averaged the greatest negative comparison with tariff cases. These cases consisted primarily of breaches, and the majority of respondents felt that breaches should be excluded from the block contracts. At the same time, most of the serious cases that respondents would like to see excluded are naturally category III offenses.

Nineteen percent is a significant level of savings. In considering this outcome, it is important to assess whether lawyers of the calibre selected by LSS would bid again at the same level, and therefore whether the same savings could be realized without sacrificing quality of service.

The answer to this question involves many factors outside the scope of this evaluation. Some of these factors are whether there are large numbers of lawyers of similar quality who would be willing to offer bids at the same average level as those in this study, whether collective opposition from the bar to an expanded block contracting pilot would affect decisions to tender, whether LSS takes explicit steps to ensure quality of service through a more restrictive bidding process, and whether certain case types are excluded from the categories.

The lawyers who participated in the pre-pilot were not specifically asked whether they would submit tenders at higher levels in a future block contract. Their response to the question would have depended on circumstances at the time, changes in the structure and procedure of block contracting, and their overall decision about involvement at all.

Nevertheless, the majority of respondents stated that the level of profit was unacceptable. Of this majority, most added that Legal Aid as a whole is not profitable. Rather, from a purely financial perspective, legal aid cases are seen as helping to fill blocks of time, which ensures that overhead costs are paid. Some respondents were simply trying to preserve their overall market share of cases. Some felt that they were able to realize efficiencies through the block (eg. being able to meet with crown counsel concerning 10 cases at one time and/or scheduling a number of court appearances on the same day. For others these efficiencies were already part of their current practise, so the block did not represent an advantage.

While it is thus difficult to state categorically that future bids from other counsel would be at a higher level, it is safe to say that they would not be at a lower level, and therefore that the maximum savings to LSS would not exceed 19% if LSS continues to emphasize quality of service.

Quality of service has been a central issue in the general debate over block contracting, and in the way the pre-pilot was handled. Four aspects of this issue are examined below:

As noted in section 1.3, this evaluation did not canvass either the wider bar, the Law Society, or the Criminal Sub-Section of the CBA. However, the respondents in this study related numerous discussions with colleagues, and their core concerns were:

the lack of choice of counsel under the block contracting system

the fear that block contractors would maximize whatever profits are to be found in the block by: 1) "dump-trucking" clients, (ie. counselling them to plead guilty, avoiding trials, etc) and 2) not devoting as much time to clients

a fear that LSS is more concerned with cutting costs that in maintaining quality of service, and that even if this fear was not realized in the pre-pilot, that over time the cost-cutting objectives of LSS would prevail over quality objectives. This in turn would lead to block contracts with lawyers who would bid low and provide inferior service.

The participating lawyers struggled themselves over these issues. While all were confident about their own abilities, ethics and conduct in their handling of the blocks, a majority still held misgivings about the choice of counsel issue. For example, some stated that choice of counsel was more important in serious matters. Several felt that continuity was especially important in the lives of youths, and that choice of counsel was an aspect of that continuity. A minority of respondents felt choice of counsel was not a guarantee of quality service, and that the emphasis should be placed on mechanisms to ensure competency.

Equally, while convinced that LSS had made a decision to select quality counsel in the pre-pilot rather than focus exclusively on cost-saving objectives, the majority of the respondents were not comfortable or convinced about LSS’s long-term intentions.

As just stated, the participating lawyers were satisfied that LSS chose quality counsel in the pre-pilot. LSS - either at headquarters or through the contract administrators - received no complaints about the actual quality of service provided by the lawyers. The contract administrators reported not only their own satisfaction with the high standard of service given by the participating lawyers, but also the opinion of members of the bench, crown and other members of the bar that LSS had selected quality, experienced and well-regarded counsel who performed at a high standard. Obviously, in the context of this report these latter comments are second-hand.

Although no complaints were received from clients about quality of service, there were numerous complaints to LSS, especially in Vancouver (over 50% of clients) about cases being assigned to a contract lawyer rather than the counsel of choice. This response was exacerbated in Vancouver by the fact that all referrals to the block contract were of cases where particular counsel had been requested. Similarly, many objections were raised by referring agencies (eg. Native Courtworkers, John Howard Society, Elizabeth Fry) over the lack of choice of counsel.

For the most part, participating lawyers were able to deal with the concern about choice of counsel with short explanations that appeared to satisfy the client. In a handful of cases a client was more adamant, and in one case belligerent over choice of counsel. In two cases clients retained their own counsel, one the client was referred out, and in a couple a strong case was accepted by the contract administrator that the previous client-lawyer relationship was important to sustain for particular reasons. Overall, choice of counsel concerns were common, but not a fundamental problem operationally.

There are two broad approaches to quality of service: pre-screening and monitoring. While the two approaches were not seen as mutually exclusive by respondents, most felt that quality assurance is best served at the front end. Several of the participating lawyers felt that if LSS is genuinely committed to quality of service, it should negotiate block contracts directly with a number of lawyers that may well offer quality service and at a price LSS considers satisfactory, rather than by raising fears of low quality at low prices through a bidding system. Another approach has already been suggested in section 2.1.

In section 2.1 the procedures for selecting quality bids were outlined, and are described in greater detail in the Procedure Manual of the contracting project. In terms of monitoring, the contract administrator described getting informal feedback from judges, crown counsel and other members of the bar about their perceptions of how the cases were being handled.

This study did not include exploration of the capacity of the LSS Management Information System to examine patterns of guilty pleas, preliminary inquiries, trials, etc to compare block contract cases with tariff cases, nor its capacity to compare activity patterns of an individual contractor prior to and during a block. Preliminary non-comparative data on guilty pleas have been produced as of July 11, 1998.

Respondents were divided as to whether block contractors should be submitted to any greater monitoring scrutiny than lawyers completing tariff cases. Some felt quality control was essentially a matter of complaint monitoring that should rightly be handled by the Law Society rather than LSS. Others felt that concerns about "dump-trucking" should be addressed by examining plea and trial patterns, and that this could and should be done by LSS. A contract administrator felt that if LSS was going to move to a larger pilot, or large-scale implementation of block contracting, it would be necessary to have a larger auditing capacity.

If LSS decides to embark on an expanded pilot, it will need to address the very real concern within the bar around the longer-term way in which LSS will approach the issue of quality assurance. The fact that in the pre-pilot quality contractors were selected is unlikely to assuage concerns about LSS’s long term intentions. Nor will the Procedure Manual in the way it currently addresses the issue of quality. It describes excellent procedures for assessing quality, but does not address the critical issue of the weight given to quality of service versus the weight given to the bid price in selecting contractors.

LSS should consider a more explicit way of addressing quality concerns at the front end. Procedures that limit the field before an RFP is issued (eg. through a roster system), or that involve direct contracts with lawyers with excellent reputations without tendering, or that heavily weight selection criteria towards quality over price in an open tendering process, are all possible front-end approaches. Similarly, explicit decisions about the nature and extent of MIS monitoring or auditing of block contracts should be enunciated.

Three other sets of findings offer some perspective about the context in which the block contracts operated, and are outlined below:

Almost all of the firms that participated in the block contracting process were sole practitioners, or sole practitioners sharing office space and/or office support. Years since call of the lawyers ranged from 7 to 18 years. Percentage of practice that was criminal ranged from 40% to 100%. The percentage of business activity represented by the block contract during its peak referral period was difficult to estimate, but ranged from 10%-50%, and for most contractors was under 25%.

All were firms that had experience managing a practise, rather than, as one contract administrator put it, "operated out of a car". Firms reported having to make only minor - or no- adjustments to accommodate the block contract. These included some minor office assistance and the establishment of separate filing procedures for block cases. None reported having to make adjustments when the contract ended. Most would have preferred a faster assignment of cases and completion of the block, so obviously could accommodate the impact of blocks of this size.

All contract activity except some routine non-court contacts were handled by the lawyers themselves (as was required in the contract.) One block contract was shared (25 cases each) between two lawyers who had submitted a joint bid. Two other contracts were full blocks, but the bids and contract had made reference to the fact that the lawyers would provide coverage for each other as required. Both of these arrangements worked well in terms of coordination from the standpoint of the lawyers and the contract administrator. Factors that contributed to the success of these shared arrangements, are a high degree of personal trust and professional respect between the parties, and previous/current shared activity (eg. ward contracts, office space and resources). LSS might consider specifically encouraging these types of arrangements in future RFPs, should the block contracting process be expanded.

Two observations emerge from the above points:

1. the pre-pilot has not tested block contracting with larger firms. Although distinct advantages of being sole practitioners were noted by the respondents (less likelihood of inexperienced lawyers or of articling students taking cases; quality of supervision was not an issue), this feedback is necessarily one-sided. Since there was no capability of the contractors to devolve activity onto junior colleagues or articling students, LSS has gained no experience in a block contract with monitoring this type of activity.
2. the protracted time period of case assignment has not allowed LSS to learn about problems of lawyers handling large volumes of cases in a block contract. As noted, most of the lawyers would have welcomed a more compressed period of assignment.

When deciding whether to bid in the pre-pilot, most of the lawyers had an eye both on the bid itself, and on the reactions of their colleagues. Some had extensive discussions with non-bidding colleagues and/or would have been unlikely to bid if there had been more organized opposition from the bar. For the majority of the participants, this apprehensiveness about not wanting to be seen to fly in the face of the wider legal community still is a factor.

All of the participants in the pre-pilot received some negative comment from colleagues, ranging from belligerent and isolating to philosophical. Some lawyers were surprised at how little negative feedback they got, others noted that many of the comments were "sour grapes" because the complainer hadn’t got the contract, rather than a philosophical concern with quality or other issues, and others felt that their reputation had suffered - not because of the quality of service they gave, but because of their willingness to participate at all.

Although this issue was not uniformly canvassed with all respondents, most felt that a larger block contracting pilot would be met with greater apprehension from the bar, not just because of the choice of counsel/quality of service issues, but because of a perception that block contracting is primarily a way of driving down prices. This in turn could affect the willingness of some lawyers to participate in future bidding processes.

For the most part, wider impacts of a block contracting process could not be assessed given the limited scope of this study. Several respondents felt that the loss of tariff cases to the block contract was enough to force one or two lawyers out of business. For some this was not necessarily a negative outcome, in that they felt that a rationalization of the "legal industry" was probably inevitable. However, at this scale of pre-pilot, it is not possible to make a definitive assessment on such outcomes.

A related concern was the relationship between block contracting and cultivating an educated and experienced bar. One the one hand, block contracting - with sufficient quality contractors - could be a way of ensuring a high standard of expertise and continuity in certain areas of practice. On the other hand, it could seriously restrict access to areas of law by junior lawyers by creating quasi-monopolies held by the block contractors. Respondents felt that any plans by LSS for widening the scope of block contracting should involve consideration of how it can facilitate or restrict the development of an educated bar.

Several conclusions have been presented with the findings and can be summarized here. It is important to re-emphasize the limitations of the study. Respondents consisted only of those lawyers and contract administrators directly involved in the pilot, so information about wider legal community reaction and impacts has been presented second-hand. Furthermore, the small size of the pre-pilot and the similarity in type of participating firms, makes definitive conclusions on a range of issues difficult.

On one hand, the pre-pilot was successful in:

1. attracting and selecting experienced counsel who provided quality service to clients, as assessed by the contract administrators, by the absence of complaints to LSS, and (second-hand) by comments made to the contract administrators.
2. realizing cost savings in the order of 19%, compared to historical averages for tariff cases. Note that this statistic is based on preliminary LSS data, and does not take into account administrative time and expenditures devoted to the pilot.
3. demonstrating a supportive contract administrative relationship with participating lawyers.

On the other hand, the experience of the pre-pilot raises a number of issues and questions that need to be addressed if an expansion of the block contracting system is contemplated:

1. a methodology should be established which shows LSS’s commitment that quality of service will not be sacrificed to cost-saving objectives in any longer-term plan for block contracting. Various approaches to this issue have been suggested in this report, including a roster system, weighted RFP criteria, direct negotiations with experienced lawyers around set prices, and increased monitoring of case patterns.
2. there does not appear to be a compelling rationale to implement a block contract in Vancouver for youth courts, given the existence of a staff lawyer system which absorbs virtually all cases where choice of counsel has not been specified. This resulted in a long assignment period (7-8 months) for a relatively small number of cases and initially irritated over half the clients. This situation raises the need for LSS to develop a rationale around situations/communities where block contracting could be an asset, versus where its effectiveness might be less because of the presence of a staff office or some other factor.
3. since the majority of lawyers found the level of profit in the block contract unacceptable, LSS needs to assess:

• whether the 19% savings apparently realized in the pre-pilot is likely to be obtained in subsequent block contracts, especially if clearer policies are in place around quality of service.
• if lesser savings were achieved (e.g. 10%), at what point would the savings be insufficient to offset the loss of choice of counsel, morale/trust of the bar, and other perceived advantages of the current system.

1. are there other specific advantages of block contracting (apart from potential cost-savings and predictability in projecting costs) that inform LSS’s corporate strategy? Can these be articulated and subjected to evaluation if a larger pilot is undertaken?

There are also a number of issues that could be reviewed by LSS prior to and/or assessed during an expanded pilot. These include, for example, the desirability of distributing RFP’s as widely as was done in the two communities, additional information that might be included in the RFP, various exclusions from the case mix, a policy around reimbursement for unreasonable complications in cases, and assessment of how block contracting could be effectively managed within the context of a larger firm.

Response to RFP:

Did you have any apprehensions or concerns about a block contracting process when you received the RFP?

Why did you decide to submit a proposal?

Are there any aspects of the Request for Proposal process that you feel should be changed to help law firms develop more effective and relevant proposals?

Administration

Did you have concerns about the proposed contract prior to signing? If yes, what were they? Did you request any modifications to the proposed contract?

Did your firm make any special efforts or undertake specific organizational changes in order to take on the contract? If so, what were they?

During the term of the contract, did any major issues arise that you needed to discuss with the LSS manager?

Was the LSS manager of the contract readily available to deal with any issues or queries you had?

What information/reporting requirements did you have in relation to LSS?

Were these requirements problematic at any point? If so, in what way?

Overall, did you find that the administrative requirements of the block contract, when averaged per case, were any more or less onerous than what is required in tariff cases?

Do you feel the case mix stipulated in the contract was met?

Were you satisfied with this mix? Did it meet the expectations you had in mind when you submitted your original proposal? If not, explain why.

Did your firm make specific adjustments to accommodate the kinds of cases received? Examples?

Would you recommend any changes in case mix in any future block contracts?

In accepting a block contract, did you expect to make a profit on each case, or to achieve an acceptable level of profit in relation to the overall block?

Does your firm keep detailed records of time and costs per case?

Were certain types of case particularly difficult to deal with? What types? Why? Did these cases adversely affect profits?

With respect to those types of cases in which your firm lost money, or made profits that were too low, what were the factors which caused this? (e.g., client characteristics, case characteristics, legal process factors)

Were certain types of cases handled without unexpected problems? What types? Did these cases provide acceptable levels of profit?

Was the overall level of profit acceptable? If not, why not?

What determined an acceptable level of profit for the firm?

Size, Responsibility and Referral Frequency

What is the size of your firm? Total lawyers, (years since call), paralegals (years of experience), support staff.

Who handled the block contract cases? Were they all handled by the same lawyer, or were particular types of cases, or aspects of cases assigned to more senior or junior colleagues? If assigned to more junior colleagues, what supervision — if necessary — was provided?

Do you feel the size of your firm was an asset, a liability, or irrelevant in handling the block contract?

Did the speed of referrals within the block contract meet your original expectations?

Did the frequency of referral of individual cases within the block cause problems at any point, either because of too great or too small a volume? Did you have to make any adjustments to deal with this level of referral?

What is the total volume of business of your firm?

What percentage of this volume is criminal law?

In the course of the closest calculable business year, approximately what percentage of your business volume did the contract comprise?

During the period of the contract, approximately what percentage of your business volume did the contract comprise?

Once the block contract was completed, did you find that an adjustment was necessary to offset the lack of contract cases, or was there a smooth take-up of tariff or other cases? (If necessary) How did you make this adjustment?

Although the experience and reputation of your firm were important criteria for the selection of your firm by LSS, are there other factors about your firm which, in retrospect, you feel contributed to (i) the ease of management, and (ii) the success/non-success of your handling a block contract?

During the period of your block contract, did you receive any expressions of concern from other lawyers in regard to quality of service? If so, of what sort?

Did you have any concerns about providing quality service when dealing with a block contract? If so, what were they?

Did you make any specific adjustments to your operations to ensure that you could continue to provide quality service under a block contract?

Did you receive any complaints from clients of contracted-out cases in regard to quality issues? What was the nature of the complaints? For what types of legal issues? How did you deal with these complaints?

Do you feel that there should be any greater concern with monitoring quality of service under a block contract than there is for normal tariff cases? Why or why not?

Regardless of your answer to question 2a:

what do you feel should be the main issues, if any, that LSS should monitor in regard to service quality in a block contracting system; and

how much monitoring should be done, if at all.

Overall, how would you describe the successes and limitations of this project in terms of:

your administrative relationship with LSS;

the quality of service to clients in the block contract?

Apart from those described in your answer to the preceding question, are there any impacts — foreseen or unforeseen — that you feel have occurred as a result of the project? These impacts could be within your own firm, between you and colleagues external to your firm, or in some wider sphere.

Do you have any other comments or recommendations to make about the block contracting process, and whether and how it might be handled in future?

How did you decide which firms to send the RFP to?

To how many firms did you send RFPs?

How many firms responded?

Did you receive inquiries or concerns from firms in regard to the RFP?

How would you describe the quality of the firms that responded relative to the quality of all firms that you sent the RFP to?

(If lower or higher quality) To what do you attribute this difference in quality?

What process and criteria did you use to select firms that responded to the RFP?

Do you feel there were any negative or positive spin-off effects as a result of the decision to select these firms?

Did you receive inquiries, complaints or concerns from the firms that you did not select?

Did firms ask for modifications of the contract terms before signing? What were the issues?

Did issues arise during the course of the block contract which required discussion and/or changes? Were these initiated by the contracting firms? By LSS?

Did the contracting firms have a working level contact which facilitated communication?

How were the issues resolved?

Please describe the procedure used for selecting cases and issuing cases to contractors.

How long did it take to fill each block?

What problems, if any, were encountered in filling the blocks and/or in achieving case mix targets?

How many cases were refused by the contractors? For what reasons?

Did you receive complaints regarding choice of counsel (or any other matter) from clients or others? Clarify approximate number of complaints, by whom and whether they were related to a specific referred case or to a more generalized philosophical disagreement.

In general, was the process of issuing cases to the contractor efficient? Easy to manage?

How, if at all, can it be made more efficient and easy to manage?

During the course of this project, did you receive any expressions of concern from any sector (e.g., general private bar, LSS staff lawyers, criminal tariff lawyers) in regard to quality of service issues?

Did firm managers have specific concerns related to quality? If so, what were they?

Did you receive any complaints from clients of contracted-out cases in regard to quality issues? What was the nature of the complaints? For what types of legal matters?

Explain what mechanism you had for assessing quality of service. Was this mechanism adequate?

In general, describe what you feel should be:

the main issues, if any, that LSS should monitor in regard to service quality in a block contracting system; and

how such monitoring should be done, if at all.

Overall, how would you describe the successes and limitations of this project in terms of:

quality of service to clients involved;

the administrative relationship with the participating law firms;

its effect on the relationship between LSS and private firms that undertake tariff work.

Apart from those described in the preceding question, are there any impacts—foreseen or unforeseen—that you feel have occurred as a result of this project?

Do you have any other comments about the project?