Legal aid audit reveals confusion

The system that provides lawyers
for economically disadvantaged criminal defendants and civil court case
participants in the Cayman Islands is disorganised and chronically underfunded,
a recent review by the Cayman Islands Auditor General found.

The lack of records management and
lack of consistent funding has led to a situation where some lawyers
participating in the legal aid system are not being paid timely, or at all. It
has also led to a lack of reliable information being provided to lawmakers who
decide how much to spend on the annual legal aid budget.

In a financial audit of the legal
aid system, compiled based on information available over the last five
government budget years, Auditor General Dan Duguay found that legal aid cases
since 2004 were costing Cayman $1.7 million to $1.9 million per year. That
figure does not include approximately $100,000 to $150,000 in administrative

However, Mr. Duguay said the legal
aid system was typically given half or even less of that $1.7 million to $1.9
million amount to begin the year – requiring supplemental funds to be provided
by government later on.

For instance, in the current
2009/10 budget year, some $300,000 was initially set aside for legal aid cases.
By 31 December – the mid-way point of government’s budget year – more than $1
million had been spent on legal aid cases.

The report also noted that at least
$100,000 – possibly much more – was owed to legal aid attorneys. However, that
exact amount was completely unknown because of the lack of record keeping and
the fact that the courts are using a different accounting system than central

Auditors said the cash-based
accounting system used by the courts allowed the judicial administration to
“smooth out” legal aid costs – i.e. hold some of them over until the next
financial year, even though those expenses were incurred the year before.

By law, government entities are
supposed to operate their finances on an accrual accounting basis.

In any case, auditors found no
coherent record keeping system for legal aid claims.

“It’s just a free-for-all there,”
audit manager Martin Ruben said of the legal aid administration. “There are
basically no financial records being maintained.”

Mr. Ruben said there are no
computerised records for legal aid claims. Those claims are made after
attorneys have completed work on a case by way of a written invoice.

The invoices are kept in a
less-than-organised manner, Mr. Ruben said.

“Some are in files, some are in
folders, some are sitting on the taxing officers’ desk, some are sitting on the
(legal aid administrator’s) desk,” he said.

Record keeping within the judicial
administration could not specifically determine how much money is being spent
on legal aid work for criminal cases and how much of it went for civil cases.

There was a breakdown of how many
cases were granted legal aid.

Cayman Islands Chief Justice
Anthony Smellie said in 2007 approximately 90 per cent of the country’s
criminal cases qualified for legal aid. However, in the last two years audit
figures showed that percentage has dropped to below 80 per cent.  

The Chief Justice also told
auditors that the legal aid system was putting caps on spending for criminal
cases more frequently. Also, figures showed only a third of legal aid applications
in civil cases over the last two years had been approved.

Mr. Smellie noted in his response
to the audit that only one employee at the courts system is charged with the
administration of legal aid and that more funding was needed to upgrade the
management processes and to computerise records.

He also said certain legislative
changes were required to improve the administration of the legal aid system,
several of which were identified in the report.

Changes ahead

The government has proposed
changing the system of legal aid administration – known as the judicare model –
to create a public defenders’ office.

Under a public defender scheme,
legal aid attorneys would be paid a yearly salary, rather than the $135 per
hour rate they are paid today. Also, legal aid attorneys would work for government,
not for private sector firms. Right now, private lawyers operate on a
contracted case-by-case basis with government.

The auditor general made no
recommendations regarding which legal aid system should be used. However, he
did identify several deficiencies in the current model.

First, the number of attorneys
registered to practice legal aid is 23, but in reality very few of those
lawyers regularly agree to take legal aid work.

“We were told that in most cases it
was very difficult to find an attorney to do the work and that it was easier to
simply speak to an attorney who (the administrator) knows would do the work,”
Mr. Duguay wrote in his report.

Second, legal aid applicants can
choose a certain counsel on their application form. Mr. Duguay said this did
not necessarily work in favour of fairly allocating legal aid work.

Auditors reviewed legal aid
expenses between 2007 and 2009 to see which law firms received legal aid
payments from government.

According to those figures, five
law practices handled between 60 and 66 per cent of the legal aid cases. Two of
those firms, Walkers and Mourant Du Feu & Jeune, are no longer accepting
legal aid work.

Mr. Duguay pointed out that there
was a real concern under the current system that there were simply not enough
lawyers to handle all the legal aid cases.

Finally, auditors stated that
better management of legal aid costs needed to be implemented.

Mr. Duguay said that there were few
guidelines for the courts to use when assessing an applicant’s financial

“We were informed that, because of
the cost of conducting follow-up, there are virtually no verifications being
performed,” he said.

In other words, the courts are
essentially forced to take the word of criminal defendants regarding their
financial status.

Chief Justice Smellie responded
that the courts would need additional resources to implement review procedures.