Cayman Islands Chief Justice, Anthony Smellie, said the draft Legal Aid and Pro Bono Legal Services Bill 2012, which was circulated last year for public comment, could be counterproductive as it may drive the already select few lawyers doing legal aid work away, creating a far greater problem at a time when the bill of rights now enshrines the right to representation.

The Chief Justice made these remarks on Wednesday (16) when he gave his report on the past year at the Opening of the Grand Court. He said the issue of legal aid in the face of the proposed bill has fundamental concerns. However, he pointed out whilst the current system needed some reform it did provide value for money, was not escalating in cost and ensured all those facing serious criminal charges had funding for a lawyer.

He also warned the bill of rights obligated government to fund qualified lawyers for those charged with serious criminal offences and who could not afford to pay for representation.

The chief justice said that the perception of escalating costs was unfounded with the appropriation remaining around $1.8 million every year, despite the massive increase in legal cases. Last year 557 defendants in the criminal courts were funded via legal aid and represented by the handful of local lawyers willing to undertake the work.

The Bill requires all private attorneys to provide at least 25 hours of pro bono services a year or pay an annual fee if they want to opt out.

The proposed bill comes as the island faces cuts to its legal aid budget and a steady increase in crime coupled with a rise in attorney fees.

Attorneys who decide to take on pro bono cases and do not follow through would face disciplinary measures.

Those who opt out would be required to pay nearly US$3,000 a year. This would appear to be like an average wage earner losing a $1 bill. Most law firms, especially the large ones in the Cayman Islands, would send you a bill for $3,000 for visiting them for an hour’s consultation.

It is the smaller, 1, 2, 3 manned legal firms who defend the poorer off members of Cayman’s society who get into trouble. These are the firms who will have to do most of the pro bono work. These are the ones who get hit the hardest, do most of the work, and make the least money.

As an added incentive for attorneys who take on the pro bono work and don’t follow through, face “disciplinary measures”.

There are approximately only TWELVE lawyers who regularly execute legal aid work and are in almost all cases criminal lawyers who get paid from the legal aid pool, $135 per hour.

In the proposal the legal aid funding will be managed by a director and support staff appointed through the Deputy Governor’s office. The director will establish a list and manage a roster of available attorneys for defense and introduce a duty counsel system for those remanded in custody at the police station and charged with a crime. There will be a cap on the legal aid earnings of any individual attorney at $80,000 per year, except in certain circumstances. The director will be responsible for preparing the annual legal aid budget.

The bill has now been sent to the Law Reform Commission, and the Chief Justice urged legislators to settle the matter of legal aid once and for all warning the more elaborate the legislation, the more unwieldy and expensive things would become.

Other issues, Chief Justice Smellie, mentioned were the need for a new court house, as its delay was now presenting a very real problem. In a new constitutional era with enshrined human rights, he warned, delays in justice could present legal problems for government and the tax payer.

The current courthouse was built over 40 years ago and there was now a pressing need for a modern facility to accommodate the needs of the various specialist courts as well as the criminal trials. He said the courts needed to be running at least three trials a week in the Grand court alone if they were to dispose of the caseload within a reasonable time frame.

At present the average is 300 days from charge to trial, and is considerably longer than the international standard of 180.