Pandemic leaves criminal lawyers out of work and without help

With the courts mostly closed due to the COVID-19 pandemic and many cases postponed for months, what is a criminal lawyer to do?

"The impact has been huge. It's pretty devastating," said Emily Dixon, a sole practitioner based in Toronto. "I'm a young lawyer. My business has been totally impacted by the closure of the courts."

Some criminal defence lawyers have been navigating the "new normal" in the justice system since March by representing people in remote bail hearings and guilty pleas, usually over the phone.

But for lawyers like Dixon, who mainly does trials, work has almost completely dried up, as the courts have postponed those cases. She said she genuinely does not know what she'll do to earn a decent income over the next few months as expenses, especially office rent, still need to be paid.

Federal government assistance for workers and businesses does not apply to her, she said. It's a situation likely shared by other lawyers who practise alone with no staff. (There were just over 9,000 sole practitioners out of Ontario's 41,000 lawyers in 2018, according to the Law Society of Ontario's annual report.)

Dixon confirmed that she's not eligible for the federal government's interest-free $40,000 small business loan, as she has no payroll - she has no employees at all.

She also doesn't qualify for Employment Insurance because as an independent contractor, she doesn't pay into it. She may one day qualify for the government's $2,000-a-month Canada Emergency Response Benefit, especially now that the government said this week those earning $1,000 a month or less would qualify.

She wasn't previously eligible as she was still receiving some money from legal aid - payments that had been processed for work she did months ago. She made just over $1,000 in March.

"Eventually that will dry up," said Dixon.

She said the Law Society of Ontario, the independent body that regulates the legal profession, should be looking to help lawyers financially, such as with an income subsidy.

"I think the law society should be doing more," she said.

The regulator has deferred payment of lawyers' annual fees, though Dixon had already paid hers (just over $2,300) prior to that decision. It can't be refunded.

A law society spokesperson said the regulator has implemented other measures as well, such as offering free continuing professional development programs to lawyers and paralegals to specifically address managing their practices during the pandemic.

"The federal government has to do more to address sole practitioners," said criminal lawyer Daniel Brown, vice-president of the Criminal Lawyers' Association. "It's a problem that significantly impacts a lot of lawyers who operate under this business structure.

"It's also not a problem unique to criminal law. There are a lot of businesses across the country that don't necessarily have employees, who are impacted by the loss of revenue due to this pandemic, yet have no support from the government."

Brown's own firm was able to apply for the $40,000 loan, as it had employees on the payroll in 2019.

He also shared some insight into how some criminal defence lawyers are navigating the new normal during the pandemic, and of how the crisis has pushed Ontario's notoriously antiquated courts to modernize, at least to some degree.

Brown's firm is still representing individuals at bail hearings - where the court must decide whether a person charged with a criminal offence should be released pending their trial. These hearings are some of the only cases left that are currently being heard remotely by the courts, but they don't bring enough money in to completely make up for a lawyer's loss of revenue.

One example of improvements in the system are relaxed rules that allow for the remote witnessing of legal documents such as affidavits, replacing the need to have someone from the firm drive hours just to watch someone sign a document.

But conducting the bail hearing itself remains a challenge, Brown said, as only a few courts are doing them using video conferencing technology. The rest are reliant on the phone, which can cause chaos when you have a justice of the peace, a defence lawyer, a Crown attorney, an accused person and a court registrar all on the line and sometimes talking over each other.

"What exists right now in most courts is inadequate," Brown said. "And how do you have that private conversation with your client, that you used to be able to have in court? There are no private opportunities to get instructions from your client or to ask them a question."

A spokesperson for the Ontario Court of Justice said the court would welcome the rolling out of more video capacity across the province during the pandemic, but said courtroom technology is the responsibility of the provincial government.

The Ministry of the Attorney General said it has invested $1.3 million in technology to help courts and tribunals work remotely and that operational plans, including technology needs, continue to evolve.

Expanding the remote capabilities of the courts to hear a wider variety of cases, perhaps even trials, is also something that would be welcomed by Dixon, so that she could start earning an income again.

"I'm hopeful that this will happen eventually," she said.