Legal aid still unsettled

| 10/05/2010

(CNS): The clerk of the court revealed some of the findings of the recent Legal Aid review last week while giving evidence to the public accounts committee. Although the results of the report undertaken earlier this year have remained under wraps Valdis Foldats who was a member of the review committee revealed that the cost of a legal aid clinic would be far more expensive than the current arrangements. The review was finished several weeks ago in March but government is refusing to reveal its contents, despite an FOI request submitted by CNS. Foldats revelations were the first indication and public confirmation that the findings may not be to government’s liking.

During the PAC examination of the auditor general’s report on the Legal Aid Programme Foldats pointed out that the committee had established that a public defenders office or legal aid clinic would be considerably more expensive than the current system, which for all its flaws was cost effective.
Foldats admitted that there were a number of issues that needed to be addressed regarding the current legal aid programme but as a result of the premier’s announcement to change the system the courts had not implemented any of the recommendations made by Duguay in his audit, even though they agreed with his findings.
Foldatsexplained that since the premier’s announced intention, last October, to introduce a clinic, the reduction of the budget and the committee’s review of the system no decision had been made about the future of legal aid and it was not clear if it was going to stay in is present form. He said the premier had indicated the desire to remove the judiciary from the decision making process and the system remained in question.
The clerk of court pointed out that the law reform commission’s original review of the system in 2008 had made a number of recommendations which were noted in the auditor general’s report and which he said the court had hoped would have been  implemented.  “I would have hoped the Legislative Assembly would have acted upon the law reform commissions report as it was apparent that reform was needed,” he added. The law reform commission had found that the current legal aid system was good value for money but had established the law and regulations needed to make the system function properly and made a number of recommendations.
He pointed out that this was reinforced by the recent review of which he was a part. The review calculated that a minimum of 13.5 attorneys would be needed to match current delivery and given the cost of work permits, benefits and salaries as well as the cost of support staff and office premises this would far exceed the current $1.8 million that the system is given each year.
During the PACs questioning the issue of who gets the legal aid work was also examined and Elio Solomon made accusations about lawyers pushing civil cases into the courts in order to get the money instead of sorting the disputes through mediation.
Foldats said he disagreed with Solomon’s comments. Attorneys were officers of the court, he said, who have a duty to act properly and they would be appalled by his accusations which Foldats advised Solomon to withdraw – which he did not and continued to imply that lawyers were cheating the system.
The clerk told PAC that most of the legal aid civil work focused on difficult divorces often involving child custody issues and violence, cases where people needed legal assistance and lawyers were certainly not forcing cases into the court room. “If people need a divorce they need legal assistance it has to be done in the court a divorce cannot be done through mediation it’s a legal matter,” he said.
Pointing out that the current legal aid rate of $135 per hour paid to any lawyer who was conducting legal aid work was far below current commercial rates, Foldats also noted that many attorneys also worked over and above the hours they billed — effectively working for free.
The issue of who gets the work was also a key point raised by PAC members and Foldats said that as a result of the recent review he had canvassed all the local law firms to ask them there current position regarding providing legal aid services and 23 attorneys said they were prepared to do the work.
It was also confirmed by the other court witnesses Jenifer King and Delene Cacho as well as Foldats that there were in reality a very small number of lawyers who were able to assist the courts when it came to the work. The idea that one firm was taking a significant amount of the legal aid budget was explained by the fact that the firm had the highest number of lawyers willing to assist the court and undertake legal aid work.
In recent months the court has seen the number of even the most willing attorneys decline as problems over receiving legal aid payments have mounted as a result of uncertainty surrounding its future.
Foldats noted that he agreed broadly with the AG’s findings in his review of the legal aid programme and that there needed to be more accountability and tracking in the system but that the systems problems were down to the lack of funding. He pointed out that the most important remit the system had to fulfil was that all those who faced serious crimes who had a right to legal representation were assisted by the current system.
The PAC Committee chair focused on why the law reform’s original recommendations had not made its way into legislation. It was revealed that the bill and regulations had been revised and were ready for consideration by the Legislative Assembly since last year. Miller committed to doing what he could to find out why the legal reforms had not been brought to the House.
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