Legal aid breakthrough

Defence lawyers and Cabinet have found at least a temporary solution to Cayman’s legal aid funding crisis after meeting last week.

Cabinet will make $200,000 in emergency funds available to keep the legal aid system afloat for the next few weeks, ahead of a Finance Committee vote in February on the remaining $700,000 needed for the financial year.

The breakthrough comes as Cabinet prepares to introduce a range of sweeping reforms to legal aid to prevent a funding impasse between lawmakers and court administrators from stretching into a fifth consecutive year.

The reforms will be based on recommendations handed down by the Law Reform Commission in a recent report on legal aid. Legal aid is the system that provides lawyers to defendants in criminal and civil court cases who cannot afford to pay for attorneys.

‘The amendments are now being drafted and will come before Cabinet shortly,’ Cabinet minister Alden McLaughlin said last week. ‘We intend to get these through before the house is dissolved on 24 March.’

The LRC is yet to release its final report on legal aid, but a draft version, released in September 2008, recommended:

  • A comprehensive means test for legal aid applicants;
  • Contributions from defendants or civil litigants who earn above a certain income;
  • Government charges over property as a way of recovering required contributions;
  • The establishment of a legal aid clinic connected to the Cayman Islands Law School;
  • A tendering process and capped fees in long and complex legal aid cases; and
  • The appointment of a duty counsel in criminal cases eligible for legal aid.

Defense lawyers have not been paid since mid-December and most of the $200,000 approved last week will go towards paying monies already owed.

Lloyd Samson, a lawyer and the deputy chairman of the Criminal Bar Defence Association, welcomed the outcome.

‘Plainly, the Government recognises that the protection of basic rights and the provision of legal assistance to those most vulnerable and who can least afford it is part of the lifeblood of a modern, civilised, first world society,’ he said. ‘We trust that the additional funding will be quickly voted through.’

He pointed out that the LRC report found the legal aid system represents good value for money, with the cost of the program having increased by only eight per cent over a period in which the prosecution budget more than doubled and courts saw 70 per cent more indictments.

‘We agree with the majority of the Law Reform Commission’s recommendations and hope that they will be implemented as Mr. McLaughlin has suggested,’ he added.

Ongoing concern

Cayman’s legal aid budget ran dry in mid-December – half-way through the financial year – after legislators provided only $937,000 of the $1.85 million court administrators said they needed.

This is the fourth consecutive year legislators had insisted on half-funding the program. In the past three financial years they eventually paid out the remaining funds after the first allotment ran out.

In approving only half the funds, legislators complained that the program was costing too much, that people that could afford representation were getting legal aid, and that too many services were being provided by foreign lawyers.

Mr. McLaughlin predicted the reforms will ease some of those concerns.

He rejected the suggestion that legislators have been using accused criminals and lawyers as political footballs for the past four years.

‘I don’t think it had anything to do with politics,’ he said. ‘The concerns that were expressed by the Opposition were concerns that were expressed by members of the government.

‘As representatives of the people, people talk to us all the time about what they feel to be issues and this has always been one.’

Defence lawyers have pointed out that the $135 per hour they receive for legal aid work is only about 40 per cent of what they would usually charge, and some law firms have said they provide legal aid at a financial loss, only doing it as a community service.

The $135 per hour rate has been frozen since 2003, despite government fees levied on lawyers to practice in Cayman having risen by between 33 and 50 per cent over the same period.

Cabinet members met with Mr. Samson, Defence Attorney and Acting Magistrate John Furniss and Court Administrator Valdis Foldats to discuss the crisis Tuesday.

Under Cayman Islands Law, if someone is declared to be indigent, the judge or magistrate presiding over their case will appoint an attorney to represent them.

Generally, legal aid in criminal matters is available only for Grand Court cases, or in those crimes punishable by a sentence of 14 years or more.

There were 173 applications for legal aid in criminal cases in 2008, only one more than the 172 received in 2007. Applications for assistance in civil cases jumped from 152 in 2007 to 223 last year