All practicing attorneys in the Cayman Islands would be forced to work a certain number of hours for free or pay an annual fee of $2,500, according to a draft of the Legal Aid and Pro Bono Legal Services Bill, 2012.
The draft bill was made public by the attorney general’s office last week.
According to a summary of the proposal, every attorney-at-law in the Islands to whom a practicing certificate has been issued “shall render pro bono legal services to persons in accordance with this legislation”, or face discipline under the territory’s Legal Practitioners Law.
Attorneys can have their requirement for pro bono services discharged by annually providing at least 25 free work hours at the request of the court system’s director of legal aid services or by paying an annual fee of $2,500.
“A practising certificate shall not be issued to the attorney-at-law unless such a fee has been paid,” according to the draft bill. “The fee under this clause shall be used by the government in defraying the cost of providing legal aid services in the Islands.”
Right now, legal aid services – providing attorneys to poor and/or indigent defendants; mainly in criminal cases – costs the Cayman Islands roughly $1.8 million per year. The money is controlled by the Ministry of Finance under the law, but the courts administration office handles the assignment of legal aid cases.
In practice, only a handful of attorneys routinely provide legal aid services to criminal defendants within the Cayman Islands. They are paid a set fee of $125 per hour.
The draft proposal would allow legal aid to be granted in criminal cases where indictments have been issued, summary court trials where an offence is tried either by way of criminal information or by indictment, certain civil proceedings and in criminal court appeals.
Legal aid payments in civil proceedings would not be made to non-permanent residents in the Islands, except in cases involving immigration matters, human rights cases against the government or certain family law proceedings.
The draft bill also seeks to set limits on the amount legal aid attorneys can be paid and how often they take cases paid for on the public dole.
According to the bill, the legal aid director – who is to be appointed by the deputy governor – shall not authorize any expenditure in a single legal aid matter “in excess of $20,000”, without the prior written approval of the chief officer of the government Portfolio of Internal and External Affairs.
The legal aid services director is allowed to enter a limit on the roster of legal aid lawyers as to the number of proceedings any attorney can act upon in a given year.
“Foreign counsel” are only allowed to assist locally-based lawyers in legal aid cases where the work is “complex” and where efforts to find qualified local attorneys have proved fruitless. “Foreign counsel” means only attorneys operating outside the jurisdiction, not those who are foreign-born, but live here and are licensed to practice in Cayman.
The bill also attempts to set limits on how much one attorney can earn in a year from legal aid cases: “No attorney should, except in certain circumstances, be paid more than $80,000 in a financial year”, according to a summary of the proposal.
The draft bill also sets out general parameters for individuals who are able to receive legal aid assistance. If a defendant or applicant for legal aid has a disposable income of less than $12,000 per year, a legal aid certificate may be granted. However, if that person has “disposable capital” or more than $16,000 per year they “shall be refused” a legal aid certificate.
Individuals who are granted legal aid may, in some instances, be required to pay some or all of the amount back to the government. However, the draft bill states in certain instances the attorney general may waive the debt if it would cause “serious hardship” to the person or if the cost of recovery the amount is more than what the person owes.