Legal aid debate rages

Leader says reform plan will go ahead

Debate over a plan to control skyrocketing legal aid bills in the Cayman Islands intensified this week, as government reaffirmed its intention to move forward with a cost-cutting proposal in January.

Changes made in the budget in a surprise last-minute amendment to the country’s spending plan will attempt to control legal aid costs by requiring attorneys working legal aid cases to accept a yearly salary, rather than an hourly wage.

The plan calls for $500,000 to be provided to a legal aid office from January through the end of Cayman’s budget year on 30 June.

The details of the proposal were revealed Wednesday in Legislative Assembly by Leader of Government Business McKeeva Bush.

Mr. Bush reiterated earlier statements he made, which indicated the United Democratic Party government believes costs of providing legal representation are too high and are being applied too narrowly.

Typically, legal aid is provided only in criminal cases, with a few civil court cases qualifying in matters that involve domestic abuse or disputes over children. Mr. Bush said he wants that assistance expanded to include people who need representation before entities like the Labour or Immigration Appeals Tribunal.

The Legal Services Office, as it is being called, will be headed up by local attorneys Steve McField and Theresa Pitcairn-Lewis. It has been stated that the office could include at least seven attorneys, including a Queen’s Counsel, as well as volunteer Caymanian law students.

‘The Legal Services Office will be staffed with salaried qualified attorneys and support staff together with Caymanian law students and graduates,’ Mr. Bush told the assembly Wednesday morning. ‘Those law students and graduates will receive on-the-job experience and training to become the future pool of Caymanian legal aid attorneys.’

Mr. Bush said government records showed more than $13 million had been spent on legal aid cases over the past decade in the Cayman Islands. He said he believes the new legal aid office would significantly cut costs that are approaching $2 million per year.

The Legal Services Office is anticipated to cost some $1.2 million to run for a full year.

The leader acknowledged the major public debate that followed his surprise announcement of legal aid changes the evening of 12 October. He also noted that he had taken a fair amount of criticism over the proposal, but said he intends to carry it through.

Quoting from Machiavelli’s ‘the Prince’ Mr. Bush stated: ‘The reformer has enemies in all those who profit by the old order, and only lukewarm defenders in those who would profit by the new order.’

Some local attorneys pointed out, in contrast, that Machiavelli also wrote: ‘No proceeding is better than that which you have concealed from the enemy until the time you have executed it.’

Proposals for the creation of the Legal Services Office were brought before the Legislative Assembly’s Finance Committee at 8.30pm on 12 October. Neither the attorney general nor the chief justice, who has responsibility for legal aid allocation were consulted about the change. Mr. Bush said government members did speak with Solicitor General Cheryll Richards and a court administrator about the plan.

To date, Chief Justice Anthony Smellie has not commented on the changes made to the legal aid system.

Questions about the proposal continued to be raised this week, from both opposition lawmakers and local attorneys’ organisations.

Opposition MLA Arden McLean asked Wednesday whether the $300,000 budgeted for legal aid services through December would be enough to carry the justice system forward until the new legal aid office could be established.

‘The $300,000 will have to do…for the next two months,’ Mr. Bush said.

Although he did reveal some details of the plan, Mr. Bush declined to release full details of the proposal for the legal aid office that was presented to LA members by Mr. McField and Mrs. Pitcairn-Lewis. He stated that further information about the office would be made available in the future, possibly in pamphlet form.

Mr. McField and Mrs. Pitcairn-Lewis have both declined to speak to the Caymanian Compass on numerous occasions regarding the subject of legal aid.

The Cayman Islands Criminal Defence Bar Association, a loose coalition of the attorneys who practice before the criminal courts – about 10 in all – indicated this week that the $300,000 left in the legal aid budget would not be sufficient.

‘The $300,000 will not even cover work to date for which lawyers are awaiting payment,’ a statement from the defence bar association read.

The defence bar has also raised concerns about what might happen if a criminal case arises where three defendants charged in the same crime wish to seek separate representation.

‘(Those defendants) will have no choice,’ the defence bar statement said. ‘Unless (the defendant) is prepared to pay privately; its public defender or represent yourself.’

Other legal and human rights organisations have pointed to the potential costs of a public defender/legal aid office. A 2008 report completed following a lengthy study by the Cayman Islands Law Reform Commission estimated that the costs of setting up a public defender’s office would approach some CI $400,000 before a single lawyer was hired to work there.

The commission pointed to specific examples where legal aid/public defender’s offices had been tried as a cost-saving measure.

The commission’s 2008 report stated: ‘A public defender’s scheme would involve significant expense…to include secretaries and paralegals, expenses which the private practitioners must assume as part of their own costs of doing business.

‘A separate Scottish Public Defender Solicitor’s Office had been established in Edinburgh in 1998. The scheme, however, does not appear to have been a success. In the final evaluation of the pilot scheme it was concluded that the cost of the service was around twice as much to operate per hour as opposed to paying private firms.’

Mr. Bush has generally rejected these arguments, stating they are put forth by the very lawyers who are profiting from the legal aid system. He said one attorney had billed the legal aid system $146,042.14 last year.

‘The perception (is) that there are firms that rely solely on legal aid for the existence of their practice,’ Mr. Bush said. ‘This perception suggests that government sustains these firms and without government funding they would be bankrupt.’

Mr. Bush said this raised questions of ‘whether this is the appropriate use for government funds and whether there is a fraud with respect to the Immigration Law.’

The general opinion amongst local attorneys, both foreign and Caymanian, seems to be that most Caymanian attorneys will not accept legal aid work simply because the pay is too low, compared to what private attorneys make – particularly those who work in the financial sector.

The fee for legal aid services charged to the government is $135 per hour.

However, Mr. Bush noted it has not always been the case that Caymanian attorneys would not accept legal aid work.

‘Before 1997, the majority of attorneys providing legal aid service were Caymanians,’ Mr. Bush said.

But Mr. Bush said the local attorneys started getting frustrated with the system when they were forced to wait between three and four months for payment because of bureaucratic delays.

‘That scheme of putting Caymanian attorneys out of payment for such long waiting periods drove most away from the legal aid practice,’ Mr. Bush said. ‘The cry went up that there was a shortage of attorneys to do legal aid work. That cry was far from the truth.’

The Cayman Islands Human Rights Committee has questioned whether the public defender scheme will provide adequate representation for criminal defendants.

Government spends about $3.5 running the criminal and civil departments within the country’s Legal Department. Costs budgeted for the Legal Services Office for a full year are $1.2 million.

‘Criminal litigation is a highly specialised, complex and technical area of law,’ a Human Rights Committee statement issued this week read. ‘The HRC notes that at present no explanation has been given for how such suitably qualified experts will be recruited. The defence of serious criminal offences cannot be undertaken by untrained or inexperienced lawyers.’

‘Such a system would inevitably produce delays, miscarriages of justice and appeals – the high cost of which would have to be borne by the public purse.’

The committee advocated in favour of the Legal Services Office handling other areas such as immigration appeals or labour disputes, but wondered whether the $1.2 million budget would be sufficient to do that.

‘The previous legal aid budget ($1.85 million) was extremely tight and these further cuts are significant,’ the committee’s statement noted.

Mr. Bush said statements about the previous legal aid budget being ‘tight’ were not backed up with facts, simply because no audit of the system’s spending had ever been done.

He also noted that judges decide on legal aid contributions and that no maximum cost is set on court cases where legal aid is used.

‘There is no financial formula used to ascertain the contribution that must be made by a recipient,’ he said.

Mr. Bush has said previously that the Legal Services Office would be evaluated as it goes along, and if it ended up costing more, government would look at other options. But he said the legal aid system had to be changed.

‘We must try something else,’ he said. ‘The present cost to government is far too high.’