Susan Poulos, Mark Benton, Frank Kraemer, Carol McEown & David Duncan

The Society is an independent non-profit organization created and mandated by statute. It is governed by a 15-member Board of Directors, five of whom are appointed by Government, five by the Law Society, and five by Community Law Office Associations. The Society delivers a broad range of legal services spanning criminal, family, immigration and "poverty" law. Poverty law refers to civil legal problems that have a disproportionate impact on poor people, such as income security benefits, housing, and debt.

The Society delivers its intake, referral, and poverty law services through 45 field offices and 15 area directors in smaller communities. The Society is unique amongst Canadian legal aid plans in that its legislated mandate includes the delivery of public legal education (PLE). PLE services are considered part of the continuum of services ranging from legal representation at one end of the spectrum to self-help materials and support for community advocacy groups at the other end.

Funding for the Society comes primarily from the B.C. government, with smaller amounts coming from the Law Foundation and the Notary Foundation.

The Legal Services Society has experienced periods of rapid growth, followed by periods of budget and service reductions. Most recently, growth in the late 1980s and early 1990s has been followed by a period of severe budget constraints. As with legal aid plans around the world, budget considerations have led the Society to "reform" its service delivery systems to optimize the use of scarce funds and develop the most cost-effective models.

In B.C., the push for reform was initiated by a comprehensive report commissioned by government in 1992. The report (known as the Agg Report, named after its author) covered almost every facet of the Society's operation, including governance structure, management, and methods of service delivery. It presented a strong argument in favour of implementing a staff model and using paralegals more extensively.

However, the introduction of change has taken place in a very heated "political" climate. As the Legal Services Society has developed a staff model, experimented with block contracting, and introduced case management techniques, various stakeholders affected by the changes have lobbied intensely for their particular interests and ideological biases. At the same time, severe cuts in government funding have made it necessary for the Society to reduce service drastically (both in terms of the number of clients served and the types of services provided). Moreover, government has simultaneously proceeded with reforms to the larger justice system in an effort to contain costs and introduce innovative alternatives, such as mediation and diversion, to traditional court processes.

Although the level of government funding is still a highly contentious issue in the province, the Society has emerged from its budget tightening and service reform period to a current state of relative calm and budget and service stability. It has also emerged with a significantly altered mix of service delivery models in place.

This paper will describe the processes that went into redesigning the service delivery mix, and our experience and observations regarding the costs and benefits of various service delivery models. Though this presentation is entitled "Mixed Service Delivery: Lessons from British Columbia," we do not claim to have found a magic answer to the problems created by growing demand and diminishing budgets. We only hope that the reader will find some useful information in the material we have to share.

Like most legal aid systems, legal aid in British Columbia began as a system of volunteer work performed by individual lawyers. By 1964, lawyers handling legal aid cases in B.C. were receiving an honorarium of $25 per day. In 1970, the Legal Aid Society was established, and the Society implemented a mixed staff and tariff system to provide criminal legal services. By 1973, the Society had established a legal aid tariff for family matters as well, and by 1978, had built up a network of fourteen offices. In 1979, the Legal Services Society was formed to provide an integrated system of both legal aid and public legal education and information.

There are now 8,500 lawyers in British Columbia. In the fiscal year ending March 1998, 1,700 lawyers in private practice accepted legal aid cases. That group of lawyers handled 24,000 criminal cases, 11,700 family cases, and 2,300 immigration cases. Staff lawyers handled 4,600 criminal cases, 1,800 family cases, and 400 immigration cases.

Throughout the 1980s and 1990s, the fee structure for paying lawyers who handled legal aid cases fluctuated considerably. A cycle of increases and reductions saw fees increased in 1979, 1980 and 1981, followed by reductions in 1983. Again, fees increased in the years from 1986 to 1989, and doubled in 1991, followed by a series of decreases in 1992, 1993, 1994, and 1997.

The 1997/98 fiscal year was the fourth consecutive year that saw reductions in overall tariff expenditures to contain costs and bring them in line with reduced revenue. Between fiscal years 1994/95 and 1997/98, the total expenditures to the private bar dropped from $70,600,000 to $52,800,000. These decreases were accomplished both by reducing access to legal aid and by reducing the amount paid for services. Not surprisingly, the number of lawyers accepting legal aid cases dropped by almost 20 percent in this same period.

One of the principal ways of reducing the amount paid for services was the introduction of a system of holdbacks. Holdbacks are amounts deducted from accounts at the time of payment. In criminal cases, fees are subject to a 15 percent holdback. These deductions are tracked, and when LSS accounts are audited after the end of the fiscal year, the LSS Board determines whether any money is available in the tariff budgets to repay them. Holdbacks not repaid in any fiscal year are not carried over for repayment consideration in future fiscal years. LSS has repaid holdbacks in family cases in two years and immigration cases in one year.

The Legal Services Society uses a block fee approach to payment of legal fees in criminal cases. Block fees are generally based on court appearances, and the amounts are meant to include all other services that are not billable. In January 1998, the Legal Services Society introduced a fee cap of $50,000. At the time of this change, cases exceeding this amount were consuming 6 percent of the criminal tariff resources, yet amounted to less than .1 percent of the criminal cases covered by legal aid. The current policy results in the termination of legal aid once the total cost of the legal aid fees (excluding disbursements) reaches $50,000 for an individual client in a particular case.

Family services are compensated on an hourly-based tariff that is billable at $80 per hour, less a 10 percent holdback. There are maximums for different types of preparation, and court time is billable on an hourly basis. Immigration referrals are paid at $80 per hour, with a 17.5 percent holdback. There are preparation caps, and actual hearing time is paid.

In exceptional cases, additional preparation time is authorized by the tariff services management group. In particularly complex cases, LSS may authorize the appointment of junior counsel to assist the referral lawyer.

LSS is committed to reducing case costs to a level that is reasonable and necessary for the circumstances of each case, eliminating cases without merit, and ensuring that complex cases receive sufficient resources. In civil proceedings, particularly family ones, the Society makes every effort to direct resources to services that are likely to resolve the dispute with an immediate benefit to the client or his/her family.

In cases involving domestic disputes, the Society has introduced a Family Case Management Program that applies to all services provided in domestic proceedings, except certain services required in emergency circumstances. Emergency circumstances are generally considered to be those involving the ability to feed, clothe and house self and children, safety, or the need to preserve the current circumstances by court order.

Apart from the initial emergency retainer, for all other family services LSS requests an opinion letter from the lawyer conducting the case, together with the relevant supporting documentation. Two staff lawyers assess these cases. Authorizations are provided for preparation time and hearing time. Since the implementation of this program, the average cost of family cases has decreased by 10 percent. The program has already been quite successful in ensuring that the limited resources available are equitably distributed among domestic dispute cases. This in turn has promoted effective representation, early resolution, and directing services to those cases that have merit and significant consequence to the client.

In criminal cases, LSS has had a monitoring system in place for all large cases for the past several years. It is currently developing a more intensive large case management program that will focus on early establishment of case plans, identification of issues, and specific preparation time allocations and court time allocations for each part of the criminal process.

The tariff system has proven to be reasonably flexible in responding to the series of funding crises faced by LSS. The Society has reduced tariff rates and restricted eligible cases without substantial upheaval to the structure of the organization or the courts.

As with all other areas of legal aid delivery, the delivery of services by the private bar must address these common issues in the future:

In its five-year strategic plan, the Board of the Legal Services Society has identified among its major objectives the tasks of reviewing adequate funding and developing quality assurance programs. Ensuring cost-effectiveness and monitoring demonstrably prudent expenditures will continue to be key challenges in the management of the Legal Services Society.

From the inception of the Legal Services Society, the Society and its funded agencies have used a variety of staff models that employed paralegals and lawyers to provide legal information, summary advice, and representation to clients with income security and housing issues. Traditional legal aid services—family and criminal, and later immigration—were provided by the private bar under different tariff schemes.

In the early 1990s, the Society began looking at using staff lawyers to provide more legal aid services as part of its reform initiative. The Board of Directors was responding to a variety of pressures, including increasing tariff costs, the Agg Report’s recommendation to implement staff delivery of legal aid services for 50 percent of tariff eligible services, strong pressure from our major funder, the Attorney General, and limited funds. Some in the legal aid community saw the staff model as a way to manage costs and improve the quality of service, though others argued the opposite view.

Eventually the Board proposed to introduce 183 new staff lawyers as part of its reform initiative. The private bar lobbied strenuously against reducing tariff services. After much consultation and hard negotiation between the bar, government, and the Society, a more modest proposal was agreed upon which restricted the number of new staff lawyers to 90. The Society also agreed to ensure that no more than 50 percent of cases from within a community would be referred to staff, to reestablish tariff review committees, and to carry out an external, jointly managed review to evaluate the quality and cost of staff services in comparison to tariff services.

The original plan was to locate staff lawyers and paralegals in larger centres and in concentrated groups. There were two reasons for this. First, the volume of cases available in larger centres appeared to warrant a greater number of staff. Second, the concentrated staffing model would allow the Society to hire lawyers with a range of years of call, with one senior lawyer and some very junior lawyers averaging out to five years of call. This practice would be cost-efficient and facilitate monitoring for quality assurance.

Further negotiations with the bar led to the decentralization of many staff lawyers to smaller communities around the province. In smaller centres, however, the Society needed to hire more senior lawyers who had practice experience and who could, in effect, practice on their own. As a result, the Society lost the efficiencies inherent in the concentrated model and had to develop different methods to support and assess the quality of work.

Based on the Agg Report, the Society established caseload expectations for the staff criminal and family lawyers. A staff criminal lawyer was expected to open and close 223 cases annually. A family team with just a lawyer and a secretary was expected to open and close 140 files, while a family team consisting of a lawyer, paralegal, and secretary, was expected to close 200 cases annually.

Two factors have impeded reaching caseload expectations at all centres. First, the Society honours the client's choice of counsel. If an eligible client provides the name of a lawyer, the Society will issue a referral to the lawyer requested. While established staff lawyers are able to generate choice-of-counsel referrals, newly called staff lawyers have much more difficulty. As well, there is anecdotal evidence that, because of the highly competitive nature of the market, the private bar has more aggressively marketed their services to potential clients. A second factor is that there have been situations, especially in smaller communities, where staff could not take on the required number of cases and still leave half of the available cases for the private bar.

The Society is committed to ensuring quality of service to its clients. Decentralizing the placement of staff family and criminal lawyers resulted in individual lawyers practising on their own or being supervised by a poverty lawyer who was unfamiliar with family and criminal practice issues. In response, the Society created two new roles of Criminal Law Advisor and a Family Law Advisor, to be filled by senior lawyers from the Society's excluded management team.

The advisors provide guidance and assistance to individual lawyers on practice matters, and they monitor overall productivity by monthly reviews of cases opened and closed by individual lawyers together with billable hours worked. In addition, the advisors liaise with the direct supervisors of individual lawyers to provide advice in dealing with performance issues. Finally, the advisors perform regular file reviews of the work of individual lawyers. These include reviews of practice systems and quality of work. Practice systems reviewed include file opening, file management, and bring-forward and limitation reminder systems. Quality of work is assessed by looking at the quantity and complexity of cases and the quality of representation undertaken. It is accomplished through file reviews as well as by discussing individual performance with the lawyer, his/her manager, and local stakeholders including judges and prosecutors.

In addition to establishing the advisor positions, another important step taken by the Society was to develop very early on a practice guide for each of the criminal and family areas of practice. These documents set out standards for such things as file opening and closing procedures, bring-forward procedures, and file management procedures. They clarify such things as the definition of a case and the caseload expectations by area of practice, and provide a broad range of advice on practice management. These guides have been widely used and will soon be revised and updated. The value of the guides in setting practice standards has led the Society to begin developing a similar guide for lawyers and paralegals practising in the poverty law area.

A condition of the three-way settlement between the Society, the provincial government, and the private bar regarding the staff model was the completion of a formal evaluation. To achieve this objective, the Evaluation Review Committee was established, consisting of LSS staff (including staff lawyers), as well as representatives of the private bar and the federal and provincial governments. An evaluation firm was hired but was subsequently found to be unsatisfactory before the task was completed.

The Society then sought the assistance of Dr. Patricia Brantingham, a noted researcher at Simon Fraser University, to determine the scope and cost of an evaluation. The results of that examination persuaded all three parties that the time-frame and cost of undertaking an evaluation that might prove acceptable to all interested parties was prohibitive. The result is that no formal evaluation has been undertaken.

As described earlier, the Society has incorporated quality assurance controls, including regular file reviews, into its management strategies. The Society regularly monitors the caseloads of individual staff lawyers together with their hours worked. The staff family lawyers adhere to the Family Case Management Program that determines the hours available for case activity and requires specific approval to exceed those hours.

In addition, the Finance Department prepares cost comparisons between the private bar and staff lawyers on an average cost-per-case basis. These practices allow the Society to monitor the overall cost-effectiveness of its staff and make decisions regarding the relocation of some positions within the province.

Cost comparisons are affected by changes to tariff rates and structures, staff salaries, caseload expectations, and coverage and types of services funded. In response to reduced budgets, the Society has introduced changes restricting coverage and eligibility and reducing tariffs and access to services. These changes have had a significant impact on staff-delivered services and also made it extremely difficult to compare costs of staff and tariff-delivered services precisely.

Since 1993, there have been five changes to the criminal and family law tariff in order to effect cost savings. These changes have included holdbacks, changes to the rate structure, and new ceilings introduced for certain types of services. At the same time, staff have seen some wage increases as a result of obtaining parity with Crown attorneys. Making cost comparisons between staff and the private bar for cases has therefore, necessarily, been at the macro level mentioned earlier.

As a consequence of reduced financial eligibility rates and more restrictive coverage criteria, the number of people entitled to legal aid has dropped by 29 percent since 1993 (from 73,272 in 93/94 to 51,871 in 97/98). These changes were implemented not only to achieve a balanced budget, but also to respond to justice initiatives aimed at diverting mainly family clients from the litigation process. The result is a significant reduction in the number of cases available to staff, and perhaps more significantly, in more difficult and time-consuming cases qualifying for representation. The latter outcome is being carefully monitored, and the Society may adjust its caseload expectations, particularly in the family area, at some point in the near future.

The original staff model included paralegals as a part of both criminal and family teams. However, very early on it became apparent that there was insufficient work for a criminal paralegal, and that initiative was abandoned. In late 1995, the Society undertook a review of the use of family paralegals. As a result, all but three positions were abandoned, primarily because of the unavailability of appropriate cases for paralegals to handle and because of the significant cost that was added to the team by including a paralegal. Since that review, the remaining three positions have been eliminated or reallocated for the same reason. This decision was due in large measure to the changes in coverage as well as to the diversion initiatives.

Staff services have been used in innovative ways to respond to specific needs. Two examples are provided here.

Duty counsel services are provided by staff or by private lawyers under contract for specific periods of time. In some communities, the Society could not find private bar lawyers willing to perform these duties under contract at the current rates of remuneration. In order to meet its statutory mandate, the Society "parachuted" staff lawyers or lawyers hired on a casual basis into the community to represent clients who were detained in custody.

In a second situation, the Society has actively recruited a lawyer to take a one-year term position to fill the need for more lawyer services in a remote area of the province. The private bar lawyers in that area were declining family and criminal referrals and duty counsel assignments on the basis that they had sufficient paying clients. The intention is that the lawyer will become familiar with the community and with the operation of the Society, so that when the lawyer leaves the employ of the Society, he or she will be in a position to continue accepting referrals and duty counsel assignments in that region.

The ongoing performance of individual staff lawyers confirms for the Society that it has in its employ capable and efficient practitioners who provide quality services at comparable costs to the private bar. Having staff provide criminal, family, and immigration law services gives the Society a greater understanding of clients’ needs, of changes in the legal or justice system, and of the work of the tariff bar. Having a mix of services allows the Society flexibility in responding to changing needs and changing circumstances. Staff can be directed to fill gaps in services, work in areas of law or on types of cases where considerable savings can be recognized, or provide special expertise to meet emerging legal aid issues.

The Legal Services Society has always used contracts for selected services such as duty counsel and circuit court counsel in remote areas of the province, but it was only during the budget crisis in the mid-1990s that serious consideration was given to introducing "block contracting" as an alternative to both tariff and staff service delivery. It was anticipated that tariff savings as high as 25 percent could be achieved through contracting blocks of 50 youth and adult cases.

The Society’s Board was asked to consider, as one of a number of savings initiatives, the implementation of a pilot block contracting project to encompass approximately 30 percent (9000 cases) of all eligible criminal cases. The private bar responded to this recommendation with fierce opposition, expressing concerns that contracting would have a negative impact on the quality of services delivered, and on the principle of "choice of counsel" that plays a vital role in ensuring client confidence in the services rendered.

Although the Board eventually decided not to implement the block contracting model (a decision which is discussed more fully later in this paper), a "pre-pilot" contracting project for criminal cases had already been implemented in two cities in the province. The methodology and results are presented here, as the findings may be of some interest to jurisdictions contemplating the contract model of service delivery.

The purpose of the pre-pilot project (involving six blocks of 50 cases) was to test the methodology that would eventually be used for a more extensive pilot project, as well as to examine more closely the assumptions on which the savings projections were based.

The first step was to determine which categories of offences would be included in the blocks of cases. This was done in consultation with a tariff committee of private bar lawyers. A chief concern was the potential for cases to involve lengthy trials that would result in a significant financial loss to a lawyer if he or she were being compensated at block rates that did not take into account the amount of work involved. Using this as a criterion, an agreement was reached to exclude all of the most serious offences such as murder and aggravated sexual assault (referred to as Category IV cases in the Society's criminal tariff), and a significant number of Category III cases. Securing the agreement of the private bar to support the pre-pilot project was very much linked to this agreement on case exclusions.

Assignment of cases began in September 1997. It took from three to eight months to assign 100 percent of the cases, depending on the location and type of block, so the assignment of cases was substantially complete by May 1998. During the course of the pre-pilot study a contracting manual was developed for the future use of all LSS offices. The manual contained: a standard request for proposals, case selection guidelines, criteria for assessing contract proposals, a standard form contract, procedures for administering criminal contracts (intake and referral procedures), and Instructions to Counsel. Billing procedures were handled in two ways. In one contract, payments were made on a fixed monthly basis. In the other five contracts, payments were made on a per case basis. The latter method proved to be the more effective way to distinguish block contract work from other cases the lawyers had accepted on the regular tariff.

In the summer of 1998 the Society retained a private research firm to undertake an evaluation of the pre-pilot project. Although the project was far too small to generate reliable quantitative findings, the intention was to identify issues requiring further consideration should the Society decide to implement the model more extensively. The evaluation is appended to this paper. In brief, the project demonstrated that savings could be achieved on tariff expenditures in a small project and the quality of service could be maintained (or perhaps even enhanced).

In spite of the apparent success of the project, the Society decided not to proceed with wider implementation of the model due, in large measure, to intense opposition from the private bar. The bar had demonstrated an extraordinary level of cooperation with the Society’s efforts to effect savings in tariff expenditures as outlined in Section 1 of this paper. The Society was able to pare its expenditures down to the level required by a reduced funding base without implementing the contracting model. Thus, the fiscal rationale for introducing an unpopular service model was eliminated.

One of the LSS Board goals identified in its Five-Year Strategic Plan of 1998/99 was to "develop the best possible mix of service delivery models." The Board's Core Services Committee has a mandate to examine the current mix of service delivery models and to recommend to the full Board any additions or refinements the Committee thinks would enhance service delivery (first priority) or contain or reduce costs (second priority). At present the Society delivers its criminal services through the tariff and through staff lawyers who cover some 20 percent of cases.

In its efforts to fulfill this mandate, the Committee has conducted an extensive review of the literature on contracting, and reviewed the results of the Society's pre-pilot project. The Committee noted the comments of the Queensland Legal Aid Office on its findings respecting costs per case and increased administrative costs. It also noted that the pre-pilot project evaluation conducted for LSS had reported savings of 19 percent but had not taken into account administrative time and expenditures devoted to the pilot.

The Committee focussed its attention on the issue of administrative costs and undertook a review of the literature to examine the experience of other jurisdictions. Although administrative costs are referenced in a small number of publications, there is very little actual information available.

Society staff had undertaken some of the preliminary work required to implement the contracting model for 30 percent of criminal cases (equal to roughly $6 million in tariff expenditures) and thus were able to provide the committee with a rough estimate of the initial start-up costs. It was not anticipated that, at least for the initial year, savings would be achieved on tariff administrative costs. Those costs currently run at approximately 2 percent of total tariff expenditures (excluding the costs incurred by the Finance Department to issue the actual cheques). These expenditures include maintenance of the tariff policy manual, processing of accounts, exceptional authorizations for additional fees and disbursements, and a small audit and investigation unit.

The estimated cost of first-year expenditures to implement the contracting model was an additional 2 percent of criminal tariff expenditures. A total administrative expenditure of 4 percent in the initial year would be more than offset by a 19 or 20 percent savings achieved through block contracting if such levels of savings could be maintained in a significantly larger project. This possibility has not been tested in British Columbia.

The only comparative information available was provided by Ms. Ann Christian, director of the Oregon State Indigent Defense Program. Her figures indicate that, in a substantially larger program ($117 million in contract expenditures), the administrative costs are significantly reduced (to less than 1 percent of total expenditures). Ms. Christian pointed out that the administrative costs she cited did not include a quality control audit function.

The Committee recommended against implementing a large block contracting program at the present time. The present mix of tariff and staff services has been judged to be cost-effective and to provide the "market" dynamic required to contain costs. The pre-pilot study was too small to adequately test the cost-effectiveness of the contracting model, but indications are that savings would not be achieved on the bulk of the cases referred (categories I and II accounting for approximately 65 percent of all the criminal cases). The Committee did recommend that the contracting model be used selectively where local conditions would favour its use.

The Society has a long history of using contracts for duty counsel work, circuit court work and for area directors (lawyers in the smallest communities in the province who provide intake and referral services for LSS). Thus contracting has a place in the mix of service delivery systems employed by the Society, but will not be a part of the mix used to deliver individual representation services.

The accessibility of criminal legal aid in Canada is quite restricted. People who apply for criminal legal aid and whose applications are rejected face one of several unappealing options: the daunting prospect of representing themselves in court, pleading guilty "just to get it over with," or borrowing money from friends or relatives to pay the fees of a private lawyer. In British Columbia, the Legal Services Society has created information materials for people denied legal aid in an effort to explain common defences and criminal procedure. This section describes this initiative and a preliminary study of how the materials were used.

In Canada, publicly funded legal assistance is intended for the very poor. Financial eligibility guidelines reflect welfare rates in most provinces. Poverty guidelines, or undue hardship, or the necessity to dispose of modest assets to pay for legal assistance, which at one time were elements in determining legal aid financial eligibility, are rarely if ever taken into account any more. In British Columbia an individual now qualifies for legal aid for a criminal law matter if his or her net monthly income is under $833.

Criminal legal aid coverage is fairly restrictive. The coverage standard in effect for the federal-provincial/territorial contribution agreements for criminal legal aid is that the accused person should face a risk of imprisonment. As provincial and territorial legal aid plans struggle with fiscal constraint, this "negative liberty" standard is becoming universal. In B.C. financially eligible clients are covered if they will go to jail, lose their employment, or face a deportation hearing if convicted of the offence.

Increasingly, legal aid plans are facing "hard capped" budgets as fiscal constraints take a permanent hold. The result has been more restrictive coverage policies and tighter financial eligibility guidelines. The number of referrals for criminal law matters in B.C. has dropped from 44,260 in 1991/92 to 28,702 in 1997/98. In contrast, the number of criminal cases in provincial court has increased from 156,196 in 1991/92 to 197,410 in 1997/98.

In Canada as a whole there were 68,501 refused applications for criminal legal aid in 1995/96. There has been a steady increase over the years: up 1.5 percent from the previous year's total of 67,510, and up 49 percent from the total of 47,290 in 1989/90.

There are no data reporting the number of people who appear unrepresented in court. Anecdotal evidence from lawyers suggests that the number is quite large, as much as 30 percent in some courts in certain parts of the country, and that the number is increasing.

Canadian law states clearly that people have the right to represent themselves if they choose. And there is an assumption that counsel is not necessary for a fair trial. The Canadian case law relating to court-appointed counsel sets out the conditions under which state-funded counsel may be necessary to assure a fair trial. These are, generally, the anticipated length of the proceeding, the legal and factual complexity of the case, and the personal characteristics of the accused such as education, language ability, and mental competence. The success with which persons accused of criminal offences can represent themselves, and the circumstances under which they can do so effectively do not appear to have been studied.

A small pilot project was set up in B.C. to provide public legal education materials to people who were refused criminal legal aid because they were not likely to go to jail if convicted of the offence. The study was very exploratory. The general objective of the project was to determine if rejected applicants would use self-help publications developed to assist them, and what difficulties they might encounter if they chose to do so.

The Assisted Self-Representation Project was carried out by the Legal Services Society of B.C. The Department of Justice Canada provided resources to assess the results of the project. The Society was well positioned to carry out a project such as this, as it is one of the few legal aid organizations in Canada with a public legal education (PLE) program. The PLE program had already developed publications on representation in criminal court for intake workers to give to people who were turned down for representation services. The PLE program wanted to explore how they were being used.

The pilot project began operating in December 1996 at five sites. These were: Kelowna, Smithers, Chilliwack, Powell River, and Penticton. Staff were instructed to ask applicants who did not quality for a legal aid lawyer if they wanted the self-help publications and if they would be willing to participate in the study. Demographic and case information was available from the Society's case management system, and interviews were conducted with the participants after they had been through the court process.

The project anticipated interviewing 100 people who had completed their cases, to find out how they had fared, but only 44 people could be contacted. The rest of the participants could not be traced. Of the 44 people contacted, 11 were contacted before their trials had been completed and two refused to be interviewed. Given the very small numbers, the findings must be considered anecdotal.

The offices had been asked to approach all rejected applicants, but only 23 percent of the potential client group were asked to participate in the study. Of those, 60 percent agreed (108). Intake staff, or their supervisors, used their own judgement and selected applicants they thought might benefit from the publications and agree to participate. Staff told us that people with mental problems, or those who had trouble with written English, or who couldn't be bothered were not invited to participate. A comparison of the group of people selected in the field and the pool of potential participants found that people with previous convictions, aboriginal people, and people without high school were slightly less likely to be chosen to participate in the study.

Almost all of the respondents told us they wanted lawyers to represent them in their criminal matter. Almost half of the people interviewed sought additional help (20 people, or 48 percent). Fourteen people hired lawyers to represent them, often saying that they had to borrow money from a family member to do so.

Participants were asked to comment on the publications. Twenty-five people made favourable comments: the publications were easy to read, clear, useful, easy to follow and helpful. Four had negative comments: one felt they were too complicated for the average reader; a second was a recent immigrant with little experience with English; and the third person felt that nothing he could do would make a difference in the outcome. A fourth person said that the publications gave the reader a false sense of security.

Thirteen participants claimed they used the publications in preparing for their trials. Twelve participants told us that the information led them to seek further assistance: nine decided that they needed a lawyer, and three sought assistance to have their cases diverted.

Participants were asked to tell us of their experiences in using the publications to prepare for their court appearances. Only 22 people represented themselves in court and of these, only five attempted to defend themselves. A number of participants reported success at obtaining particulars, negotiating diversion, and speaking to sentence. Two reported that they had no difficulty with their trials and were satisfied with the outcomes. Three people reported difficulties and problems that they were unprepared for in their trials, including witnesses not showing up, problems leading evidence, and an unsympathetic judge.

Participants who were able to resolve their matter early by having the charge dropped, using diversion, or pleading guilty were more likely to find that the materials were useful and be satisfied with the outcomes. Participants that pled guilty to get it over with or because they felt they had no other option were more critical of the publications and the system.

The results of this study are not conclusive. The study was intended to be mainly quantitative, but several factors emerged to limit the utility of the data. The small number of clients who actually did represent themselves, and the length of time required by the court process, were factors that limited the amount of useful data that could be obtained. Some anecdotal material was collected in the interviews. However, this qualitative data was not sufficient to compensate for the lack of robust quantitative data.

While the sample is too small to draw firm conclusions about fair hearings and the ability of people to represent themselves at trial using publications, some tentative offerings are made here.

Overall, the results of the study suggest that the PLE material is very useful for accused persons who are refused publicly funded legal assistance. The clients in this study became more acutely aware of the seriousness of their situation. They seemed better able to assess their options and to avail themselves of other assistance.

In response to these findings, a new publication has been developed to provide assistance to those who are making decisions about how to proceed once they have been charged with an offence. It includes information about how to obtain particulars from Crown, how to find out if one has a defence, the criteria for diversion, and an explanation of sentence options.

Nevertheless, most clients think "representation" when they think of legal help. Several clients told us that they had not received any help or assistance from LSS and then revealed that they had been given publications, and that staff had reviewed documents or arranged for diversion. As well, staff recorded second interviews with clients more often than were reported by the clients themselves.

No one wants to defend himself or herself in court. The technical complexity, the formality, and the lay person's unfamiliarity with the system seem to present obstacles too great to be overcome. The problems reported by accused persons representing themselves were the types of problems that cannot be adequately addressed in a small booklet, but which, nevertheless, add to the difficulties of self-representation. The comments of one respondent, a 31-year-old male with a previous record, who represented himself on three assault charges, capture this conclusion well:

No one should have to defend themself (sic) ... the pamphlets should emphasize attempts to get a lawyer. The pamphlets were easy to understand, and prepared (me) well to anticipate what would happen. The pamphlets give a false sense of security ... you think you can do it on your own but you can't.

It is difficult, based on the results of this project, to recommend with much enthusiasm the option of self-representation at trial. The question of whether an accused can obtain a fair trial if unrepresented remains unanswered, and should be examined further.

The Legal Services Society's mix of service delivery models will undoubtedly continue to evolve to meet changing demands for service and changes to the environment in which we operate. For the time being, however, the Society does not foresee any radical changes to the current mix. The Society's Board of Directors has indicated that it favours an approach that seeks to refine and enhance the current system, and the Board intends to use any additional money which might become available to expand its clientele and the range of services offered.

There are some observations that the Society can share on the topic of mixed models of service delivery. First, while there are both advantages and disadvantages to utilizing a mix rather than a single model of service delivery, the Society believes that the former outweigh the latter.

The advantages include:

1. Avoidance of a monopoly situation whereby suppliers can more easily influence the rates for remuneration. Such a situation in fact occurred in B.C. in the early 1990s when only the private bar was involved in the delivery of criminal, family, and immigration services. The bar "went on strike" and was successful in achieving a significant increase in tariff rates. In that instance, government agreed to significantly increase the Society's budget to expedite a settlement with the bar.
2. More opportunity for specialization. This has been particularly notable in family law where staff lawyers have been able to specialize in child protection work, for example, and accept some of the more demanding clients whom the private bar has declined to serve. As another example, in the Vancouver staff criminal clinic, the Society has been successful in hiring an aboriginal lawyer who, it is anticipated, will structure her caseload around services to aboriginal clients.
3. Increased flexibility in responding to changing circumstances. Staff family lawyers have assisted the Society to assess the service needs on the circuit courts in remote areas of the province. While the Society has traditionally contracted with criminal lawyers for the circuits, it has become apparent that family lawyers are required in order to deal with significant court lists involving domestic disputes and spousal assault, along with Family Relations Act and Divorce Act matters.
4. Providing a "window in" on the tariff practices. Staff have provided feedback to the Society, enabling it to gauge the adequacy of the tariffs. They have, for example, assisted the Society to rewrite the child protection tariff, providing information on preparation time required for various legal processes.

The disadvantages would include:

1. Greater administrative complexity and time required, particularly during the early stages of introducing alternative service models, and particularly if quality assurance processes are built into staff or contracting models.
2. Friction and conflict with the private bar. While this appears not to have been a significant factor in many Canadian provinces, it most decidedly has been in B.C. The introduction of the staff model prompted a withdrawal of services by the private bar. Compromise was required to reach eventual agreement on the number and location of staff lawyers. The provincial government played a significant role in brokering a compromise agreement.

The Society has found that introducing case management processes provided a considerable measure of control and cost containment in both the staff and tariff models, and would strongly endorse the introduction of case management programs concurrently with additional models of service delivery.

While the Society has conducted a number of in-house evaluations on staff costs as compared with private bar costs, such assessments have lacked precision as they have not incorporated time records for staff lawyers. Time records are the only precise method for calculating the exact cost per case for staff. The Society has experimented with a variety of time-keeping systems and is presently standardizing to a software package called Time Sheets Professional. Current time records on open cases will be transferred into the new system as conversion takes place. It is anticipated that data analysis and comparison with tariff services can commence in the fall. And, more precise in-house research should provide data to determine the optimum caseloads for staff.

In a report commissioned by a Joint Evaluation Committee, researcher Dr. Patricia Brantingham outlined the minimum requirements for rigorous research on cost and quality comparisons for staff and private bar models. She projected that a reasonable evaluation would require five years in order to collect sufficient prospective data, and that time record-keeping would be essential. She estimated the cost of such research to be close to $1 million.

The Society's Board decided against pursuing such an evaluation, particularly given all participants' awareness that the results or findings of such research can be rendered irrelevant overnight by new policy decisions which impact on costs. For example, the Board is exploring a potential change in the rates paid to the private bar for duty counsel work to determine whether that could ensure the necessary supply of lawyers willing to take on the work. Any changes to the rate structure and service level will impact costs and cost comparisons. The Society has concluded that cost savings are not inherent to any particular models, but rather good management of the models is what produces efficient and cost-effective services.

A final point to note is that the Legal Services Society attaches great importance to public legal education as a method of providing some service to people who are otherwise not eligible.

As a part of its five-year strategic plan, the Board of the Legal Services Society will continue to pursue it objectives to review adequate funding and develop quality assurance programs while meeting the challenges of monitoring expenditures and ensuring cost-effectiveness.