Legal aid reform uncertain

The Cayman Islands Government’s
years-long struggle with the system that provides free legal help for the poor
in both criminal and civil court cases is no nearer an end, members of the
Legislative Assembly’s Public Accounts Committee heard last week.

Both court officials and lawmakers
agreed that reform of the somewhat antiquated regulations that govern the legal
aid system were needed. How that reform was to be accomplished remained

At the heart of the issue seems to
be a fundamental dispute between the court system and the elected arm of
Cayman’s government.

The courts generally favour the
current legal aid system – called judicare – in which government provides the
court a certain amount of funding each year to hire private sector lawyers to
represent criminal defendants and certain participants in civil cases as well.
A means test is used to determine whether those individuals qualify for legal

Premier McKeeva Bush proposed an
entirely different system in October of last year; an arrangement similar to a
public defender’s office. Under the premier’s proposal, a number of attorneys
would be hired to staff the Legal Aid Services Office. Those attorneys would be
paid a fixed salary, rather than the current $135 per hour rate legal aid
attorneys receive.

The budget for the legal services
office would fall under the control of the Ministry of Finance, not the courts.

A committee that met to review the
premier’s proposal completed its work and submitted a report to the ministry on
1 March. Neither that report, nor any of the comments submitted regarding it
have ever been made public.

Public Accounts Committee members,
including Chairman Ezzard Miller and George Town MLA Ellio Solomon, questioned
Clerk of the Court Valdis Foldats regarding the delay in reforming legal aid.

“The law is archaic and should be
reformed,” Mr. Foldats told the Public Accounts Committee. “That’s a matter for
legislative change. I would have hoped that the Legislative Assembly would have
acted upon the Law Reform Commission report.”

That report, completed in 2008,
recommended that Cayman stay with its judicare legal aid system. According to
former Cayman Islands Auditor General Dan Duguay, draft regulations based on
that report were submitted to the government last year.

However, when Mr. Bush proposed a
new legal aid system in late 2009, Mr. Foldats said the court system became
unsure of how to proceed.

“We were uncertain if legal aid
will continue in its current form,” Mr. Foldats said. “We haven’t expended
resources in the cost of doing something we may not be involved in.”

Mr. Solomon said that Cayman’s
legal aid costs were more than likely to increase in the coming years, given
the implementation of the country’s first bill of rights in its new constitution
and with the likely increase in fees paid to legal aid lawyers.

The $135 per-hour fee for legal aid
lawyers is typically less than half of the commercial rates lawyers charge in
Cayman’s private sector, Mr. Foldats said.

Premier Bush said in October that
he expected annual costs for legal aid services to be reduced from the current
$1.85 million per year to about $1.2 million for a full year to fund the Legal
Aid Services Office.

Mr. Miller asked how many attorneys
could be hired for the $1.8 million that is spent each year on legal aid cases.

Mr. Foldats said the courts had
estimated that about “13 and a half” lawyers would be needed to do the work
performed by attorneys who participate in the judicare legal aid system.

“Would it be possible to hire 13.5
attorneys for $1.8 million?” Mr. Miller asked.

Mr. Foldats said earlier estimates
had shown Cayman would spend about $400,000 to set up and run such a public defenders
or legal services office before one attorney was hired. Those costs included support
staff, rent payments, phones, computers and the like.

If Caymanian attorneys refused to
do legal aid work, Mr. Foldats said it was likely that people from other
jurisdictions would have to be hired to staff the legal services office. Work
permit fees for lawyers range from $12,000 to $14,000 a year and professional
fees were $2,000 a year.

“The initial first year costs are
going to be extraordinary,” Mr. Foldats told the committee.