The Cayman Islands Criminal Defence Bar Association (CDBA) gives response to the proposed legal Aid and Pro Bono Services Bill 2012

Executive Summary

We welcome many of the changes that the Legal Aid and Pro Bono Services Bill introduces as creating a system of public funding that recognises the need for professional representation in a broad spectrum of cases as well as the ongoing pressures on those attorneys undertaking public funded work.

We are, however, extremely concerned that many of the clauses in the Bill are unworkable and will lead to some firms ceasing to undertake legal aid work at all.

The underlying proposition that attorneys should be responsible for the funding of the legal aid system is fundamentally misconceived.

The concept of capping – both individual attorneys’ annual publicly funded income and the number of hours work they can undertake each day – appears to be designed to share work amongst attorneys without recognising that a pool of such attorneys to undertake the work simply does not exist. The Cayman Islands already suffers from a chronic shortage of attorneys willing and able to undertake publicly funded work. The imposition of the proposed billing cap will put the current system in jeopardy if not be its death knoll.

Breaches of the Code of Conduct are also inevitable should the pro bono system remain as currently drafted. Forcing lawyers to undertake pro bono work creates significant dangers where they must undertake work for which they are not suitably qualified, nor insured.

The disregard for basic rights in the objectionable clauses is not only confined to attorneys: clients are also likely to suffer under the new system. The proposed tendering system, for example, disregards a client’s fundamental right to elect his representation in favour of a scheme designed to save money by awarding cases to the cheapest attorney as opposed to the attorney best equipped to take on the case.

We raise these concerns in the hope that further consideration and amendments will be made to the offending clauses to ensure that the new Bill does not destroy the current legal aid system and does not breach the Cayman Islands Bill of Rights. In short, if the Government wishes to retain a system of legal aid, which all previous commissions including its own advisors, the Law Reform Commission, have concluded represents ‘good value for money’ for the Cayman Islands, then it is vital that fundamental changes are made to the draft Bill.

Positive Changes in the Draft Bill

We recognise that the Bill has several beneficial amendments to the current Legal Aid Law. Many of these are suggestions, which we have made in the past. Most notably, we welcome the clearer definition and extension of which individuals will be eligible for legal aid. Those charged with offences for which the penalty is 4 years or more will now be eligible for legal aid (if they meet the financial criteria).  This is considerably broader than the previous limit of 14 years imprisonment (s. 23 of the current Legal Aid Law). We also welcome the extension of legal aid for proceedings before the Privy Council (cl. 4(6)).

The financial restriction to eligibility should create an effective means test ensuring that only those who truly need legal aid are granted it.  The ‘means test’ helps to create more certainty as to whether or not legal  aid  is likely  to  be granted  and  should  prevent frivolous  applications  being  made.  We are not, however, convinced that the refusal of legal aid to those with a disposable capital of $16,000 or more is realistic given the high costs of contested criminal litigation and the limited defence costs orders made by the courts.

We believe that the creation of a director of legal aid (cl. 12) is a positive step and the requirement that they be a qualified attorney-at-law ensures that the director will have sufficient experience working in the legal system to recognise adequately the demands and limitations of the legal aid system. Such an appointment, however, creates an extremely powerful role without, at present, a route of appeal. However in order to ensure accountability and to provide a process of reviewing any decisions of the Director, we respectfully suggest that there will need to be a right of appeal to a Judge of the Grand Court and the provision of legal aid must always ultimately be capable of being determined by the Court. We are also heartened by the efforts made to recognise  the unique  pressures  on  the criminal  justice  system.  The provision for emergency legal aid for 28 days and the granting of legal aid for two mention hearings (cl.29(3)) recognises that matters may arise which are outside  the control of an attorneys and which may require urgent action.

We have serious concerns, however, over several clauses of the Bill, which represent an unjustified and impractical attack on legally-aided defence attorneys. The obligation to provide pro bono services or to pay a fee is wholly objectionable.

Pro bono Services

Clause 7 represents a thinly veiled tax on attorneys to pay for the legal aid system. It is not clear why lawyers alone should be responsible for funding this system.

Clause 7 lacks clarity as to what work would  be required  by the pro bono scheme: would  it involve lawyers undertaking work for which legal aid has been refused or undertaking work for which legal aid has been granted but at no cost? If the former, then the scheme is simply unworkable. There is insufficient pro bono work for all lawyers to complete their allotted hours. Furthermore many of these cases are refused legal aid  in  part  because  they  are  appropriate  for  defendants  to  represent  themselves.  If, alternatively, the expectation is that lawyers will undertake legal aid cases without charging, then it is requiring lawyers  to work pro  bono on cases  that justify renumeration.  As we assert above, there  is absolutely  no basis why the funding of a system  which  represents  a basic human  right and  which is society at large’s  obligation to meet, should be provided by the legal profession. Where would this end? Will doctors  be required  to work  for  free  if there  is a  funding  shortage  for  public  health  care?  If government wishes to save money in the field of education, will it be permissible to require teachers to work part of  the year  for  free  or alternatively  pay a  fee?  Aside from the  potential  breaches· of  the constitution  involved, we respectfully submit that the reasoning which lies behind this section of the Bill is flawed.

Clause 7(4) which states that an attorney ‘may offer pro bono legal services in any area of law’ simply and naively ignores the fact that by their professional rules and pursuant to their contractual obligations to their insurers, attorneys can  only  offer  services  in  an  area  of  law  in  which  they  are  qualified  and competent. The vast majority of attorneys on the roll in the Cayman Islands will not be qualified or insured to provide any pro bono services.

We are bound by the Cayman Islands Code of Conduct and the requirement to provide pro bono services outside our areas of expertise represents a clear breach of the following provisions:

“1.01 An attorney must not conduct himself:

(2) So as to prejudice or undermine confidence in the administration of justice or otherwise bring it or the profession into disrepute;

(3)  in  a  manner   which  is  unbecoming  to  the  profession   or  otherwise  may  be  deemed unprofessional

1.07 An attorney must not undertake to provide a service that he knows or ought to know he is not competent to undertake or for which he does not have the time or opportunity to fit/fill.

Government lawyers are exempted from the pro bono system for no discernible reason – there would be nothing to prevent them completing pro bono work where there was no conflict like all other attorneys working on the island.

This puts added and undue burdens upon legal aid defence attorneys, the majority of whom already undertake a significant amount of pro bono work. In the criminal sphere we regularly act pro bono for clients who have several cases at one time where only one case has attracted legal aid. Attendance at the police station is often provided notwithstanding a client’s inability to pay for such legal advice. Criminal attorneys already undertake such work, not expecting remuneration, in order to assist clients, the judiciary and generally to expedite the administration of the criminal justice system. They should be commended for their existing willingness to so act, not punished by having further pro bono work enforced upon them.

The provision of legal assistance is an issue for society as a whole and not just one for the legal profession. Those undertaking criminal legal aid work already do so at a modest rate ($135 p/h). It is unconscionable and, we submit, potentially unconstitutional to force them to provide their services for free.

Tendering Process

We have significant concerns over clause 30 due to the lack of clarity as to how the tendering process would work. We seek clarification of this – for example, would one tender an hourly rate or a fixed fee for the case?  If a defendant’s chosen lawyer does not win the tender is his right to choose simply to be disregarded? Such an approach may represent a breach of the Defendant’s rights under Article 6 ECHR, a breach of the Bill of Rights due to come into force on 6th November 2012 and a breach of Rule 6.04 of the Cayman Islands’ Code of Conduct which provides that “a client has an unequivocal right to change one practitioner for another”. Thus, should a client seek to be represented by an attorney who lost the tendering process the appointed attorney is duty bound by the Code of Conduct to allow the change, thus circumventing the tendering process entirely.  Many defendants seek continuity of counsel. This is an approach which, in the long run, saves expense as fewer hours are spent on the case establishing basic background information.

Capping

We have concerns that Clauses 31 and 37 represent an unjustified attack on publicly funded defence attorneys based on an erroneous belief that capping of work will ensure a sharing of work with other attorneys who, quite simply, do not exist.  The proposed cap of 10 hours per day on legal aid cases is ostensibly a realistic cap. The cap fails, however, to recognise the nature of publicly funded criminal work. Criminal litigation, whether trials or appeals, inevitably has an element of unpredictability because of delays and adjournments due to lack of court time, lack of prosecution disclosure, lack of prosecution readiness, defendants failing to attend etc which makes adhering to a  particular cap very difficult. Attorneys frequently have to prepare several trials at the same time and require sufficiently flexible working hours to accommodate this.

Serious or paper-heavy criminal cases will inevitably require extra work in the weeks prior to trial which is likely to result in the cap  being exceeded. Additionally, days spent in court preparing for and conducting trials will consume the l 0 hour daily cap without recognising that considerable work may be required before the resumption of the trial the next day. This may necessitate work beyond the cap.

We assume that the objective of the capping of individual attorneys in clause 31(7) is intended to spread legal aid work around among more practitioners. This assumes that there are more attorneys in the Cayman Islands who are willing to accept legal aid work at $135. Such an assumption is simply wrong given there is already a shortage of practitioners willing to accept legal aid work.

The proposed capping also prevents an individual from choosing his attorney as those attorneys who are perceived as being more able will be more regularly instructed and will therefore reach their cap and be unavailable for instruction.

We are, furthermore, concerned that the proposed capping will potentially conflict with our duty to our client, since it may mean that we are not able fully to explore all legal and evidential points (or at least not be paid for doing so). We are bound by the Cayman Islands’ Code of Conduct and believe that the proposed caps create a conflict of interest putting us in breach of rule 1.04 which provides that “attorney’s primary duty is to his client, to whom he must act in good faith. He must at all times and by proper and lawful means advm1ce and protect his clients’ best interests without fear or regard for self interest.

We are concerned that when an attorney’s cap is exhausted the attorney would be duty bound to continue representing the client but will not be permitted to be paid for any necessary further work. The current Legal Aid Rules 1997 6(7) provide that “an attorney who agrees to act pursuant to a legal aid certificate shall have a duty to represent the assisted person until the matter is completed or the certificate is discharged.”  Clause 50(4) of the draft Bill provides that the previous Rules will continue in force until such time as new ones may be passed. The net effect is that an attorney who has accepted a legal aid certificate(s) will be required to finish the matter in spite of the fact that he may have exceed his cap and therefore cannot be paid. This is unacceptable and unworkable.

Additionally, the caps appear to be arbitrary with no explanation as to why they are fixed at the rates they are.  If these caps come in to force many firms will simply have to cease to accept publicly funded work as to continue to do so will be unviable. This is at a time when the system requires more attorneys who are willing to undertake legal aid work. If this Bill comes into force the small pool of available attorneys is likely to diminish.

Billing Clause 34

We seek further clarification as to the requirements of clause 34, which appears to impose a heavy and unnecessary extra administrative burden.

Payment for Court Time- Clause 31(1)

It is wholly unfair and arbitrary to pay attorneys for 45 minutes of every hour they work in court. The set rate of $135  is already low and has been in place since 2003. This effectively reduces it to $101 an hour for court work. Appearances in court represent the foundation of the criminal legal system. When attorneys are in court they are working no less hard than out of court, whatever the reason for the appearance in court. The expectation that attorneys should accept a lower fee for appearing in court represents an illogical and unjustifiable attack on the legal profession itself.

All practitioners are aware that they can only undertake work that is necessary for a case to be properly prepared. The current Legal Aid Rules state this. Any work that cannot be justified will not be allowed by the Taxing Officer.

(signed)

John Furniss

President – Criminal Defence Bar Association