Lawyer groups pan legal aid plan

Two of Cayman’s leading attorney groups have blasted a reform proposal for legal aid that would create a government-funded public defender’s office and effectively cut private lawyers out of legal aid cases.

Government pays for legal aid to assist those who cannot afford to hire their own lawyers, usually in criminal matters.

‘We fear that, as a result of these reforms, the standard of representation for those accused of grave crime will suffer, scrutiny of the police and prosecution will be undermined, and the innocent will be placed at greater risk,’ a letter signed by Cayman Islands Law Society President Charles Jennings and Caymanian Bar Association President James Bergstrom read.

That letter was sent to Leader of Government Business McKeeva Bush last week.

However, not all attorneys in Cayman agree that professional standards will slip with the creation of a Legal Services Office, as it is being called. That office, under the government’s plan, is due to start operating in January.

In fact, a report given to the Law Reform Commission in early 2008 by former Complaints Commissioner John Epp indicated the opposite.

‘It is correct that there is plentiful evidence that public defenders are able to provide services of a comparable, if not higher, quality to those provided by lawyers in private practice,’ Mr. Epp wrote in the report.

That 2008 study quoted Lord Carter of the United Kingdom as being opposed to legal aid models similar to the one the Cayman Islands currently uses.

‘Lord Carter is especially critical of the traditional method under the judicare model of paying lawyers once the case has been concluded on the basis of inputs such as letters written and telephone calls made,’ Mr. Epp’s report stated. ‘This does not, in his view, provide the best incentive to be efficient. On the contrary, it provides an incentive for lawyers in private practice to perform more work on a case than is necessary to achieve a desirable outcome.’

There is no evidence to indicate that is what has happened under Cayman’s current legal aid system. However, Mr. Bush pointed out last week that no audit of legal aid funds had ever been done to determine precisely how that money was spent.

Mr. Epp’s report seemed to support claims by the law society and bar association that a public defenders/legal aid office would end up costing the country more money.

Quoting from an evaluation performed on the England and Wales public defender system, Mr. Epp’s report noted the following: ‘There is, as yet, no evidence that public defenders can provide services at a comparable cost to lawyers in private practice save in relation to smaller and medium-cost Crown Court cases.’

The letter sent to Mr. Bush last week from local attorneys groups sounded even less hopeful.

‘The notion that the new scheme is going to save money and improve service is misconceived and ill-advised,’ the joint letter from the law society and bar association read.

Moreover, the bar association/law society letter to Mr. Bush noted that Cayman could find itself in violation of international human rights’ law if the country started short-changing legal aid.

‘If government, by under-funding, creates a situation in which representation cannot be secured for those accused of a criminal offence within a reasonable time, it will be in breach (of Article 6 of the European Convention of Human Rights),’ the letter read.

The ruling United Democratic Party government has chiefly proposed the change to Cayman’s legal aid system as a cost-cutting measure. Last year, Cayman spent more than $1.8 million on legal aid cases. Mr. Bush has said he hopes to reduce those costs to $1.2 million a year.