Two issues ‘critical’ in flat-fees dispute
The Law Society has told the Minister for Justice that two issues remain “critical” to resolving a dispute with solicitors over a new payment structure for criminal legal aid in the District Court.
The new flat-fee system, introduced on 1 July, has led many solicitors to withdraw their services in protest.
Minister Jim O’Callaghan had announced some clarifications and changes to the scheme last week after a meeting with the Law Society.
These included the splitting of the flat fee for cases into two instalments and the commitments to continuing engagement with the profession and reviewing lengthier cases.
‘Significant practical concerns’
After criminal-law solicitors met last Friday (31 July), the Law Society said that, while practitioners acknowledged some of the changes as progress, feedback indicated that the changes did not address “significant practical concerns” underlying the current difficulties.
“The consistent message we continue to receive is that most practitioners would likely participate in the scheme on an interim basis if a small number of targeted corrections and adjustments were made while the broader review is undertaken,” President Rosemarie Loftus wrote.
Separate and distinct cases
The first key issue identified by the Law Society is the treatment of separate and distinct cases which, for efficiency, happen to be before the court on the same day.
Under the revised system, only one legal-aid certificate is issued in such a case.
While acknowledging concerns about the previous operation of the scheme, the Law Society said that the current proposal moved too far in the opposite direction by treating “fundamentally different” criminal cases as though they were one matter, “solely because they happen to be listed before the court on the same date”.
Citing an example of a defendant charged with three offences involving separate times and locations, the Law Society pointed out that each of these matters would require separate preparation, consultation with the client, examination of evidence, legal analysis, and representation.
The president’s letter outlined a “possible compromise” whereby legal-aid certificates would be issued only for separate and distinct cases committed on separate dates, and there would be a cap of five on the number of certificates that could be granted to one defendant in one court on one day.
Complex cases
The second main issue for the Law Society concerns cases of extended duration – often involving children, people with mental-health issues, and people remanded in custody by judges.
The letter to the minister said that, under the new scheme, a solicitor who represented someone in court for a non-complex matter would be paid the same as someone who represented a troubled child in a complex case involving more than 20 court appearances.
The Law Society is proposing that, pending completion of the announced review, a further legal-aid certificate should be issued where a case exceeds ten court appearances.
The president concluded by committing the Law Society to continued constructive engagement with the minister and his officials.
“The Law Society's objective is to support a criminal legal-aid system that is sustainable, fair, and capable of ensuring access to justice across the country,” she stated.