Rethinking the Welfare State: The prospects for ... - e-Library

Rethinking the selfare state 94
tariff up to some capped limit will partially address these problems but will lead to underservicing
once the cap has been reached, even though the complexity or merits of the
matter may warrant further expenditure of effort on the part of the provider. Providing for
voucher increments to cover such cases, including meritorious appeals, may address this
problem, but at the cost of greater administrative complexity and expenditures.
Extra-billing, for good reason, is not permitted under most existing legal aid programs.
The specific nature of the normative rationale behind the provision of legal aid casts
doubts on the extra-billing issue because the central idea for providing legal aid is to
facilitate access to legal advice and representation among those who would otherwise
lack the resources to access the law. Allowing extra billing while maintaining fixed
voucher valuations would reduce the supply of legal assistance to citizens in need, which
is the problem legal aid seeks to address. However, this does not rule out the possibility
that a legal aid scheme could mandate client contributions when income exceeds a
prescribed limit. By requiring that clients who have moderate means make a contribution
based on their level of income, it is possible to make legal aid much more widely
available. For example, as has been mentioned, legal aid is available to upwards of 45
percent of the population in the Netherlands. However, individual clients are often
required to make a meanstested contribution to the costs of the services they receive. In
some cases, a person’s income will be so low that the contribution is waived. 90 This
maintains the integrity of a system in which the government purports to ensure access to
the legal system for everyone. However, people with higher incomes (although still
relatively low) are required to make contributions on a sliding scale. 91 In Canada, legal
aid does not require any individual contributions. However, a much smaller proportion of
the population is able to benefit at all from legal aid. Thus, many people who are not
destitute, but who are of moderate means, cannot afford the costs of legal representation.
In the Canadian system, this segment of the population is over-looked. They are not
wealthy enough to hire a lawyer, but they are not poor enough to qualify for legal aid. It
is argued that a system like the one in the Netherlands can help to alleviate this “plight of
the lower middle class” by increasing the legal resources available to them.
Another alternative involves assigning different voucher values to lawyers of various
practice experience. For instance, in Ontario there is a sliding scale of remuneration
associated with judicare vouchers depending upon how many years the participating
lawyer has been practising. The pay scale has three levels. The lowest level of pay is
reserved for lawyers with fewer than four years of experience. Lawyers with five to ten
years of experience and greater than ten years of experience receive vouchers of higher
value, respectively. In this way, the system builds in an added incentive for more
experienced lawyers to provide legal aid services. Of course, such an arrangement is
imperfect because experience is only crudely related to quality of representation, but it is
likely better than ignoring the role of experience altogether.
Cream-skimming is less problematic in the context of legal aid than in other social
programs. First, it is essential that community clinics be allowed to choose their clientele
in order to preserve their community links and promote their specialized knowledge. In
addition, however, all lawyers should be allowed to choose their clients on the basis of
both specialty and ethics. So long as we can maintain a relatively close correlation
between the time and expense of a particular class of case and the value of the