The relative paucity of criminal defense attorneys in Cayman who will accept Legal Aid cases may be due to a host of structural factors unique to the country’s legal landscape.
Chief Justice Anthony Smellie mentioned during his ceremonial address at the seasonal opening of the Grand Court earlier this month that Cayman has just 27 attorneys who will accept Legal Aid cases.
Richard Barton, one of those 27 attorneys, said Friday that there are a lot of reasons for that statistic.
“I salute the chief justice for acknowledging it and for using that forum – which is a very powerful forum – to highlight the issues nationwide. I want to commend him for that,” Mr. Barton said. “But I think we need to ask ourselves, what are the services we provide as attorneys in this country? In a population of under 100,000 people, is there really a disproportionate amount of criminal practitioners?”
Chief Justice Smellie pointed out that there are more than 800 attorneys in Cayman and mentioned the shortage of attorneys willing to accept Legal Aid as one of the factors inhibiting the court’s efficiency. The Grand Court adjudicated 71 cases in 2018 and carried over a record 147 cases into this year.
That means that the Grand Court carried over two cases for every case it carried to conclusion.
Mr. Barton said that the 800 attorneys statistic includes civil, corporate and family attorneys who encompass the entire global demand for legal services in Cayman. The demand for criminal defense attorneys is much smaller and may be pinpointed with just a bit of additional information, he said.
Firstly, Mr. Barton said, he’d like to know more about local recidivism rates and what percentage of cases end in conviction, acquittal or a lack of prosecution. Only then, he said, can the legal community ascertain whether there are too many indictments or too few defense attorneys on island.
“If we deem  to be an undersupply of criminal attorneys, then what does that say about crime in this country?” asked Mr. Barton of lawyer supply and demand. “It’s easy to say we need 50 more defense attorneys, but it’s also important to rehabilitate because the two go hand in hand. If you had 100 criminal defense attorneys in a population of this size, in my estimation, that would be overkill.”
Mr. Barton also said that law firms face steep obstacles in recruiting experienced practitioners from other jurisdictions. The cost for a work permit, legal certifications, health insurance and pension can rise to above $20,000 per year, and it can be cost-prohibitive to pay them back on just Legal Aid cases alone.
The current Legal Aid rate is $160 per hour, and attorneys only get paid upon completion of a case. But what happens when that case gets rescheduled? In many cases, the attorney is left scrambling.
Legal Aid, Mr. Barton said, is important for both the defendants and the system itself. Without the attorneys taking those cases, he said, the legal system would devolve into chaos.
“There are a number of criminal matters that aren’t a scheduled Legal Aid offense. You don’t get Legal Aid, but these people still need representation or they go and represent themselves,” he said. “You deprive them of Legal Aid and they become misdirected, and then what next? Delay. Trial dates. Witnesses. Police officers. Misdirection of resources. It stalls the wheel of justice. It’s not necessarily about, ‘How can we give defense attorneys more money?’ It’s about efficiency.”
Alastair David, an attorney at HSM law firm, said he does not practice in criminal defense matters but he has become acquainted with the Legal Aid system through his defense of Cuban asylum applicants. In many cases, Mr. David said, foreign clients cannot be expected to understand the finer legal points that go into the Refugee Convention, and they need an attorney just to get their argument for asylum across.
If they cannot access an attorney for those cases, he said, their rights are obviously being infringed. Many do not speak English, Mr. David said, and regardless of how they feel about the political system back at home, they might not be inclined to trust the government here.
“They can get Legal Aid for Grand Court but not the Immigration Appeals Tribunal,” he said. “They might not know anything about the Refugee Convention and they have to explain why they need asylum.”
Mr. Barton said he’d like to know more about judicial statistics in Cayman before coming to a conclusion about the ideal number of criminal attorneys in the jurisdiction. The bottom line, he said, is that Legal Aid is intrinsically important to the system and it needs to constantly be tweaked to best effect.
“There needs to be an increase in the Legal Aid rate by at least double,” he said. “And I don’t want to beat up on the Legal Aid director. I think the Legal Aid director is being very efficient in terms of the efficiency and the availability of the checks. I know that department works very hard.
“But if you live in a society where people cannot access justice, it’s no longer a democracy. If you get rear-ended in your car – regardless of where you work – you’d like to know somebody’s been held accountable. And if you rear-end someone, you’d like to know that justice is proportionate.”
Stacy Parke, the director of Legal Aid, was not immediately available for comment by press time.