Local solicitor sets out why legal aid protest matters to all of us

AS THE dispute over legal aid payments to criminal defence lawyers continues into its third week, local solicitor, Niall Fox, explains why it’s important his profession is properly remunerated for defending the most vulnerable in society.

Mr Fox represents clients from Cavan, Monaghan and beyond from his practice in Cavan Town. He is also a member of the Cavan Solicitors Bar Association.

It was he who interrupted the first day of the summer sittings of Cavan Circuit Court last week to announce that solicitors were withdrawing their services in protest to proposed changes in the legal aid flat fee scheme.

Circuit Court Judge John Aylmer adjourned all matters before the court last Tuesday for a week, or the day before the Justice Minister’s new proposals are supposed to come into effect on July 1, “in the hope the dispute will be resolved”.

Scores of cases at three sittings of Cavan District Court and others at Monaghan District Court have been adjourned since solicitors withdrew their services on June 17.

In February, the Minister of Justice, Jim O’Callaghan, himself a barrister, brought proposals to introduce a flat fee paid to defence lawyers for representing clients “from the beginning to the end of a case”.

The Department says the new pay structure fulfils a commitment within the Programme for Government. The minister says the reform “will simplify the administration of criminal legal aid, resolve cases sooner, and ensure practitioners are remunerated fairly”.

Under the existing payment system, solicitors are paid €239.38 for the first time they represent a defendant in court and €59.86 for each time thereafter.

If the flat fee scheme is introduced as planned today (Wednesday) solicitors will receive one payment of €455 for defending a client in court no matter how many times it takes to finalise the case or how complex the matter.

“From our point of view, the flat fee model is a fixed fee for an indeterminable amount of work, and it just doesn’t work,” Mr Fox told the Celt. “You can’t treat complex trials and very minor matters the same.”

Typical district court cases like shoplifting, possession of a small quantity of illegal drugs or being drunk and disorderly could, under the presiding judge at Cavan and Monaghan district courts, Raymond Finnegan, be mentioned four to five times. It is often more under other district court judges. “Some drugs cases go on for months,” Mr Fox says.

There are multiple reasons for this including - awaiting directions from the office of the Director of Public Prosecutions; preparation and disclosure of evidence; adjournments for missing witnesses, gardaí or solicitors; allowing time for a defendant to engage with the Probation and Welfare Service or awaiting a victim impact statement from an injured party.

In the case of repeat offenders, a judge may also want to monitor the defendant’s behaviour and allow time for the person to receive treatment for mental health or addiction issues.

“Most adjournments are driven by the State,” Mr Fox contends.

Judges determine who is entitled to legal aid based on metrics like a defendant’s income, number of dependants, whether he/she is in receipt of social welfare or in full-time education. The seriousness of the charges against a defendant could also mean they are assigned legal aid to cover a solicitor and one or two barristers.

Mr Fox worries that if the flat fee proposals go ahead there will be an “exodus” from the panel of criminal solicitors just as there was from the family law panel after the same payment model was introduced to that branch of the law.

“There are a lot of people out there who know how difficult it is to get a family law solicitor today,” Mr Fox said. “That is because so many solicitors left family law because it is so poorly remunerated.”

He said solicitors do not become criminal defence lawyers because it is lucrative.

“Criminal defence lawyers choose this type of work because they want to represent vulnerable people, they get satisfaction from doing advocacy work,” he said.

“It’s a very difficult area to work in and it can be heavy going. Clients who need our help could have mental health or addiction issues, there are language barriers but, at the same time, we have to do our work for the same reason there is criminal legal aid: People have the right to be legally represented in court. We are protecting civil liberties,” Mr Fox said.

The experienced solicitor also says the new model could create “incentives for an early guilty plea and more trials and people turning up to court who are not represented”.

“Everyone who is before the courts and needs to be represented by a criminal defence solicitor has a story behind their offences and it is our job to go into court and tell that story on behalf of some of the most vulnerable in society,” Mr Fox explained.

“And if you want a democracy where people’s civil liberties are protected, you have to fund the system otherwise lawyers will leave the field altogether,” he added, “that will have an overall effect on the constitutional rights of the most vulnerable to a fair trial.”

The local solicitor also expressed his disappointment that the Justice Minister and his department have not engaged with solicitors and the Law Society more on the issue as the date to change to the new model was just days away at the time he spoke to the Celt.

“We weren’t included in the consultation,” he said. “I don’t know who was on the panel but the minister could’ve done a peer-led review. We’re asking him to stop now. Don’t introduce it and let’s look at an inclusive review.”