Legal aid row rolls on

| 23/10/2009

(CNS): The two major bodies representing the wider legal profession, the Cayman Islands Law Society and the Cayman Bar Association, have now added their voices to the concerns being raised about the leader of government business’ decision to allow two local lawyers establish a legal aid office on a slashed budget. Charles Jennings and James Bergstrom have written to McKeeva Bush and asked him to revisit his decision. Welcoming any move to broaden access to justice, they state their concerns about the limited information available about the proposed scheme, but above all the proposed reduction in the budget.

The letter, sent to the LoGB on 21 October, follows in the wake of questions and queries first raised by the opposition, followed by the Criminal Defence Bar Association, and most recently the Human Rights Committee. In this letter the legal professionals also raise human rights concerns and the principles in both article 7 of Cayman’s own Bill of Rights within the new Constitution and article 6 of the European Convention of Human Rights that the primary purpose of legal aid is to provide a lawyer for those who can’t afford one to ensure fairness and justice for all.

Like most of those who have questioned the change in policy, the two legal bodies say they are not opposed in principle to a legal aid or public defenders office but note that the government’s own Law Reform Commission had concluded that it would be a more expensive approach, so question, as many already have, how the two lawyers, Steve McField and Theresa Pitcairn, will be able to do more for less.

“The right to be provided with legal representation means the right to be provided with genuine and effective representation not the mere presence of a lawyer,” Jennings and Bergstrom write.

The two legal presidents also tell the LoGB that they are also concerned about his recent comments on a radio talk show (Rooster’s Crosstalk) that government should not have to pay for “expensive lawyers” to get “criminals off the hook”.

“As Mr McField and Ms Pitcairn will doubtless also be able to confirm it is a fundamental principle of law in every civilized jurisdiction that a defendant has a right to a fair trial, and moreover, in common law jurisdictions, such as the Cayman Islands, that he/she is innocent until proven guilty,” the letter states. “Your words imply that you believe otherwise on both counts. We expect you to clarify them before they are more widely picked up on and reported.”

However, speaking after his presentation in the Legislative Assembly this week about the problems with the existing legal aid system and his hopes for the benefits of the new legal aid office, Bush said that he still felt people across the country were uncomfortable when the government was footing the bill to enable people who were involved in crime to walk away from the courts scot-free.

Jennings and Bergstrom raise concerns about the costs of the office and make a comparison to the Legal Department that prosecutes crime. The two attorneys point out that the current budget for that department is $3,525, 513, almost more than three times the annual budget proposed forthe new legal aid office.

“Using the government department as the most reasonable like-for-like comparison and down-sizing very conservatively to two thirds of its size, the annual running costs of a comparable PDO/Legal Aid office will be $2,326,838,” the lawyers write. “To this base operating figure must be added the inevitable costs which will be involved when the PDO/Legal Aid office has to outsource work.”

The authors point out that in many criminal cases there are multiple defendants, which means the office will be forced to outsource to avoid conflict. They suggest that because the economics of the office have not been thought through, “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.”

The writers also present their concerns that the transfer of legal aid funding away from the chief justice to the Executive undermines the independence of the judiciary, which they say is a cornerstone of democracy and civilised society.

“The provision of high-calibre representation for those accused of grave crime is a frontline service. This suggested ‘reform’ will damage the reputation of these Islands and the consequences naturally extend beyond those who are directly working in or are affected by our criminal justice system,” Jennings and Bergstrom write as they ask Bush to engage in dialogue about the reform.

The Law Society in particular, however, has been criticised for not offering to help address the growing legal aid problem over the years. Pitcairn has noted on several occasions that the Law Society does not believe it has to do pro-bono work as the provision of legal aid should be borne by the community at large – in other words through government funding and not just by the legal profession.

McField and Pitcairn (a former colleague of Jennings at Maples and Calder, who has since filed her own suit against the law firm) have yet to explain the details of their plan or answer any of the fundamental questions over how they will manage Cayman’s growing criminal defence costs or the transition period. There are wide concerns in the community, given the number of high profile criminal trials currently pending in the court system, including that of the men accused of murdering Estella Scott-Roberts, that there will be problems during the transition that could undermine the safety of any conviction.  

 A clear message from the two local lawyers, however, is that no one else in their profession has yet stepped up to the plate with ideas for addressing the many problems associated with the current legal aid system. CNS has persisted in asking questions and on Monday asked McField about the transitional issues, but he said he did not yet know the answer to any of the questions posed.

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  1. Anonymous says:

    Mac is doing the right thing. Lawyers fee’s are a rip off. Other professionals on this island such as Doctors, Architects & Engineers have the same professional standing, same office expenses, same government fees to pay and same salaries for staff and yet their hourly fees are in the CI$ 150 range so why are we paying CI$ 300 plus per hour for lawyers.

    Other professionals offer fixed fee proposals but we cannot get this service from Lawyers, who seem to alway under estimate the cost of the case and have no quams changing often twice their estimated costs.

    There should be a cap of the fees these people charge to local market because we are paying for world class corporate rates for normal lawyers, who else where in the World would be a lot cheaper.

    • Anonymous says:

      The author of this post is totally misinformed.

      As has been stated on numerous occasions, the Legal Aid rate paid to attorneys is only $135 per hour.

      Yes, that’s $135 per hour.

      The rate is less than half that attorneys would otherwise charge private clients.

      In addition, attorneys have to cover work permit fees, practice certificate fees, wages for support staff (secretaries, paralegals, IT, compliance, accountants -etc  and their work permit fees where suitably qualified Caymanians are not available). Not to mention office rental etc

      Photocopying and telephone bills are not covered by legal aid.

      The idea that attorneys are making a killing on legal aid, when they are foregoing far more lucrative work, is plain wrong.

      The idea that a public defender’s office would be cheaper, is also wrong- see the Law Commission report.

      This has nothing to do with saving money, and everything to do with ‘jobs for the boys’

      I wonder what Steve McField’s salary will be?

      I am amazed that Caymanians are content for The Leader of Government Business to play politics with the liberty of his own constituents. If the police are prepared to arrest a Grand Court judge (wrongly, as it turns out), we are all at risk of arrest.

      The rich need not worry about these developments. The poor certainly should.





    • Anonymous says:

      You don’t get it.

      1. The market determines whether your services are appropriately priced. If they are overpriced there will be a corresponding reduced demand for your services.

      2. The nature of litigation is such is that there are many more significant variables than say the cost of designing a house.  You do not know what legal point the prosecution may raise that will require 10 hours of research.

      3. Legal aid is not about doing a favour for lawyers who can simply choose not to do any legal aid at all since he is giving up charging out to paying offshore clients at US$750 per hour. The issue of legal aid is not the lawyers’ problem, it is society’s problem. 

      4. Most other professionals do not even remotely have the overheads of lawyers with their premium office space, libraries, support staff etc. I am not sure why a comparison is being made in any event since other professionals are not generally asked to make such a charitable donation of their time.  

      5.  I don’t know where you got the idea that doctors charge CI$150 per hour. The reality is that you have to sit and wait sometimes for half an hour to an hour to see a GP even though you had an appointment. The doctor may not see you for more than 5-10 mins but will charge you at least $75 which calculates to at least CI$1,200 per hour. This is on the top of the fact that you have wasted 1/2 hour to an hour of your time simply to allow him to cram in 10 patients for the hour. When you make an appointment with a lawyer your meeting starts as scheduled and you have his/her undivided attention for that hour. Provided he/she is competent, you receive value for money and not wasted time.             

  2. Anonymous says:

    your client is innosent until proven to be broke

  3. O'Really says:

    Do you believe in the concept of innocent until proven guilty? Simple question, yes or no will do.

  4. Twyla Vargas says:

    MAKING A KILLING, Thats what other lawyers were doing holding onto the purse string for the legal aid from Government.  Revisit his decision?  Why should Mr Bush have to revisit his decision and Calypso/dance to the tune of certain persons from the Cayman Law and Bar association.   And, I am not going to tango with anyone who can give better legal advice that me, but I will waltz with a little bit of commonsense.

    I am not going to be political either, because I speak from the heart and let the chips fall where they may.  Why should government have to pay the expense of High profile Lawyers to get criminals of the hook.  "If you play the game, bear half the blame"

    I remember about 35 years ago there was a foreign lawyer who was used for all legal cases on the Island.   As soon as he had taken the client to court for two or three weeks, and he had made enough money, he would tell the client "Plead guilty, "Plead Guilty"  

    Also, some persons are trying to put CJ on a trip by  suggesting the word "Undermine". That is Bull %$#(:~ and stirying it to stink up the judicial and legal department with it too.  Blessed..

    • durrrr says:

      Making a killing? From doing legal aid work? This is the exact same nonsense that McKeeva came out with, with his Machiavelli quote.

      The fact is, that you both are wrong, plain and simple.

      As has been widely reported, lawyers can only charge CI$135 per hour for legal aid work… their bills are then reviewed (i.e. reduced) by the Court taxing officer, so they will actually be paid between say CI$110 and CI$135 per hour, regardless of their experience or seniority.

      With paying clients, lawyers are free to charge what ever rates they agree with their clients… and I know from experience that most firms charge between CI$250 (for junior lawyers) and CI$500 (for partners and senior lawyers) per hour.

      It doesn’t take a genius to do the maths… but I will spell it out for you, just in case: Lawyers lose money from doing legal aid work.

  5. Anonymous says:

    The problem is that if the major law firms had contributed properly to legal aid as a part of their moral obligation instead of lining their pockets there would be no problem

    • Anonymous says:

      Some had Caymanians do this work to keep nthem busy and quiet rather than involving them in the international stuff – but a couple of immigration permissions followed immediately by  "austerity measures"….

  6. Anon says:

    "Jennings and Bergstrom raise concerns about the costs of the office and make a comparison to the Legal Department that prosecutes crime. The two attorneys point out that the current budget for that department is $3,525, 513, almost more than three times the annual budget proposed for the new legal aid office"

    this is comparing apples and pears.  Not all defendants get legal aid – less than 1/3 of cases prosecuted are entitled under the current regulations which appoint legal aid lawyers. There is no reason to think the test will change.  Therefore QED prosecution lawyers deal with 3 times the number of cases AND they deal with general advice to the police, advice on cases which don’t get to court or are never charged, training etc etc.  The two are just not synonimous and it is fallacious to try to compare the two.  For educated lawyers I am surprised they should put forward such a flawed argument.

    • Anonymous says:

      I am not so sure that it is so far-fetched to compare the two (the Legal Dept and the Legal Aid Office, given that the legal defence office will have to have similar administrative support and accommodations, and that the lawyers’ duties are envisaged to extend beyond the regular representation in court, that is to representing people making appeals to the Labour Tribunal as well as to mediation of domestic abuse, among others.

      They are going to be hugely busy!  And if you are involving law students and at the same time dealing with the public they way this office will have to (and the way that the Legal Department does not have to), you are going to need to have a very efficient administration.

      I assume that Pitcairn and McField will be salaried — I wonder how much of their services will be pro bono — and I don’t imagine they will be working for peanuts.  Everybody knows what that means in the Cayman economic context and ambitions.

      Then for the salaries of the ten or so lawyers — hello!  If you can get them at $75,000, I can guarantee you will be bringing in inexperienced persons from elsewhere, and they won’t be working for the office at that rate for long.

      What we are going to find is that, in fact, the costs are going to run up to $2 million quickly and easily.  Then they are going to cite the extra duties they do as reasons, and from there, it will be inching upwards in no time.

      Right now much of the administrative costs both on the Courts’ side and the law firms’ side are being absorbed.  As is true for most government-related services, we really don’t know the true costs, as so much is absorbed by the organisations involved.

      We shall see.  But, somehow, I am beginning to feel rather prescient these days.  I said two years ago — and I have a letter to the editor of one of the newspapers to prove it –that we were not going to get anywhere with the Jack fiasco.

      So said, so done.  I am now making another prediction — the costs for this new operation are going to be frightening and the new system will have to be reversed — if it gets that far.  Or I will gladly eat my words.

      There is a wise old saying, "Fools rush in where angels fear to tred."  I really hope that this will not turn out to be a national and very large scale example of that truism.


      • what a mess! says:

        Well Said!

        I too believe this new proposal by Mac will be mush more expensive and less effective. Especially as he proposes to move the administration of these funds from the Judiciary to the Govt. (himself). If he is so sure and above board about this, then why not involve the Cheif Justice, Attorney General and other bodies representing the legal fraternity? Where is the study or evidence to support the claims being made by LoGB?

        This does not seem above board! And is alarming.

    • durrrr says:

      Legal aid does not just cover the defence of those who are accused of crimes – poor people are granted legal aid to prosecute and defend civil actions, which the legal department are not involved in. The comparision is therefore a good one.

  7. Anonymous says:

    I have a feeling this situation would NEVER arisen if  Travers were still at the helm of Maples  

    • Anonymous says:

      What situation? The UDP deciding to create a Public Defender’s Office, or Charles Jennings criticising it?

  8. UniqueCommonSense says:


    another classic cock-up by the great ‘mad-mac-magician’!!!

  9. Anonymous says:

     What are the problems?  Just PAY.