September 27, 2020

The Editor Speaks: If I can see the flaws in the legal aid bill, why can’t the government?

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I am not a lawyer nor have I had any inclinations to be nor ever wanted to be a member of that profession. I have no legal training, except in the field of building contract and landlord and tenant law I had to do years (and years) ago to become a qualified quantity surveyor.

I, nevertheless, could find giant holes in the government’s proposed Legal Aid and Pro Bono Services Bill 2012. I mentioned as much in an editorial last week as soon as the bill was announced.

On Friday (8) we received the Cayman Islands Criminal Defence Bar Association’s (CDBA) official response that we published in its entirety in yesterday’s (11) iNews Cayman.

My only surprise in their statement from John Furniss, President of the CDBA, was his opening paragraph saying:

“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.”

Perhaps he was being nice, because John is a very nice man.

However, then he outlines all of his members concerns – and they are many. Space prevents me from listing all (see (CDBA) official response that we published in its entirety in yesterday’s (11) iNews.) for the rest.

  1. Attorneys should be responsible for the funding of the legal aid system is fundamentally misconceived. Editor: But it saves government money so they can spend it on other misconceived projects.
  2. 2.    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. Editor: Government obviously did not know this. I hope they are grateful to you for pointing this out.
  3. 3.    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. Editor: Government will not allow it to be buried in a public cemetery.
  4. 4.    Forcing lawyers to undertake pro bono work creates significant dangers where they must undertake work for which they are not suitably qualified, nor insured. Editor: But most of government works that way.
  5. 5.    The disregard for basic rights. Editor: It saves money!
  6. 6.    The proposed tendering system 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. Editor: See my answer under 5.
  7. 7.    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. Editor: the biggest word in this statement is also the smallest. “IF”!
  8. 8.    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. Editor: But that would cost the government.
  9. 9.    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.. Editor: Surely, there’s a 0 missing in that hourly rate?

10. 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. Editor: When has government played by the rules?

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