Winnipeg Free Press - PRINT EDITION

Tussle over lawyers' pay

Overnight visits to police station are pro bono

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Defence lawyers are doing a double-take after they were told it's their professional responsibility to meet with youths in custody in the middle of the night at the police station at their own expense.

Darren Sawchuk, president of the Manitoba chapter of the Criminal Defence Lawyers Association, said Legal Aid Manitoba is asking too much of criminal lawyers to work for free in the middle of the night.

Letter of the law

EXCERPT of a notice sent by Legal Aid Manitoba to criminal defence lawyers earlier this month:

"Concerns have been expressed that on-call counsel may be refusing to attend the police station, thereby depriving youth of the presence of counsel when making a statement to police...

"Legal Aid Manitoba does not have additional funds to provide on-call counsel for providing this service... The provision of such services by counsel, when provided, is carried out pro bono, and out of respect for the professional responsibilities of counsel.

"The fact that the Legal Aid Manitoba tariff does not provide specified compensation for these attendances does not remove the professional obligations of counsel providing on-call services."

The complete notice can be found at: http://www.legalaid.mb.ca/pdf/notices2012en.pdf

"Unless you're going to pay someone a premium, who in their right mind would be going down (to the police station) at two o'clock in the morning to do this?" Sawchuk asked.

"Lawyers do pro bono work all the time, but for goodness sakes, you've got to do it within reason."

Legal Aid Manitoba earlier this month posted a Notice To The Profession on its website, saying defence lawyers either meet with a youth in custody at the police station in the middle of the night or find someone who will, without being paid.

Legal Aid Manitoba chairman Mario Santos, who is in private practice, said the notice isn't a new policy, just a reminder to lawyers of their responsibilities.

Santos said if private bar lawyers want to participate in legal aid cases, they must meet their obligations, adding he believes those who are expressing concerns about the directive are overreacting.

"(Lawyers) who choose to take on youth court matters must provide the service to the clients the law society requires and the client requires," Santos said.

Santos said the issue arose after a senior Crown attorney complained to legal aid that young people being questioned by police in the middle of the night were unable to contact a lawyer or get one to be with them when they make a statement.

Young people can be intimidated by police, Santos said, and the law requires an adult guardian or lawyer to be with them if they're going to make a statement.

Santos said no one is being asked to work for free and no lawyer has to meet an arrested youth in the middle of the night. Defence lawyers can meet their obligations, he said, by instructing the youths not to make a statement to police.

However, Santos' statements are in contrast to the memo, which states lawyers who take on youth cases have to provide on-call services without being compensated.

"The provision of such services by counsel, when provided, is carried out pro bono," the memo states.

"The fact that the Legal Aid Manitoba tariff does not provide specified compensation for these attendances does not remove the professional obligations of counsel providing on-call services."

Santos said Legal Aid Manitoba has limited resources, adding private lawyers who take on those cases will be compensated according to a formula (the tariff) they agreed to accept.

Sawchuk said a lawyer has no way of knowing if a youth qualifies for legal aid, adding if he shows up in the middle of the night, he could be providing that work without charge and the youth and his family might not be able to afford the fees, either.

Sawchuk said it's also unreasonable for Legal Aid Manitoba to expect private lawyers to find another lawyer to go to the police station in their place.

Sawchuk said defence lawyers know legal aid isn't being adequately funded, but added if it requires lawyers to meet with youth clients in the middle of the night, it should find the funds so lawyers can be paid to do it. He said Legal Aid Manitoba could hire lawyers to work overnight at the police station.

 

aldo.santin@freepress.mb.ca

Republished from the Winnipeg Free Press print edition April 28, 2012 A3

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