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

Rethinking the selfare state 88
basic paradigm of service delivery from demand-side subsidization to another model.
Instead, it seems preferable to devote more attention to the design challenges presented
by information asymmetry and the related problems of professional autonomy and
supplier-induced demand, topics which are addressed in more detail below.
Although there are strong arguments both for and against supply-side and demand-side
subsidies, in order to make a meaningful choice as to which of these alternatives is
superior, one must weigh the evidence pertaining to the effectiveness and efficiency of
each system in practice. The Ontario Legal Aid Task Force surveyed a number of studies
and concluded that, “most of the controlled, comparative studies completed in both
Canada and the United States conclude that there is no significant difference in cost
between a staff and a judicare mode of delivery.” 58 However, others have suggested that
staff schemes are generally less expensive than judicare systems. 59 In South Africa, the
Legal Aid Board has estimated that the move from a judicare model to a mixed model in
which staff clinics are heavily relied upon will lead to a savings of R153 million in a
three-year period. 60 Goriely finds that salaried lawyers are often cheaper because they
tend to spend less time per case than do private lawyers. She hypothesizes several reasons
as to why this might be the case: staff offices may select easier cases, staff lawyers may
be more specialized, staff offices may enjoy economies of scale, and the different
payment structures may induce private lawyers to spend more hours on a particular
case. 61 None of these possibilities has been conclusively determined to be the main
factor, and it is likely that they all play a role in creating this phenomenon. The crucial
question arising from this discussion is whether or not quality suffers as a result of staff
lawyers spending less time per case. There is some evidence from Canada that staff
lawyers and private lawyers achieve similar outcomes. For example, “the Burnaby and
Manitoba studies found that staff clients were convicted no more often and were less
likely to receive a prison sentence. Client satisfaction was much the same.” 62 However,
Goriely points out that this does not seem to hold true for all jurisdictions. She postulates
that, “staff lawyers can only be expected to make efficiency gains where there is already
inefficiency in the system.” 63 Therefore, it is premature to draw conclusions about which
type of service is more cost-efficient, and whether staff and private lawyers achieve
comparable results.
Stronger evidence is presented by the Canadian National Council of Welfare (NCW)
in favour of staff models. It is pointed out that the legal aid expenditure per person (total
legal aid expenditure divided by population size) in Ontario was $29.74 in 1992, in
comparison with a $15.73 expenditure in Quebec. 64 The NCW concludes that the reason
for this discrepancy is that whereas Ontario relies primarily on judicare, Quebec utilizes a
large number of staff lawyers in local clinics. 65 Although this explanation is plausible, the
report provides no basis for ruling out other possibilities. For example, the costs in
Quebec may be lower because fewer people use the system, the means-test is more
stringent, the quality of service is poorer etc. Therefore, one should not uncritically
accept the NCW’s conclusion that the difference in cost can be attributed entirely to the
different delivery methods of legal aid.
As to the effectiveness of staff and private lawyers, the NCW looks at criminal cases
and finds that, “staff lawyers pleaded their clients guilty more often and more quickly.” 66
The report goes on to say that this tendency produces positive results, both from the
perspective of the client and society. Clients who plead out early are less likely to go to