No justice for lawyers

Monday 28 July 2014

Being forced to provide free advice under the legal aid scheme may be breaching lawyers’ human rights, the head of the Law Society has warned an inquiry into access for justice.

Advocate Jonathan Speck, the president of The Law Society of Jersey, wrote a submission to the review of access to justice citing article 4.2 of the European Convention on Human Rights and warning that a challenge could be brought on the grounds of “forced labour”.

In his letter, Advocate Speck also said that one small firm has already gone under because of its legal aid burden, and that the system may be breaching the human rights of applicants too.

And he claims that the maintenance of the scheme in its current form is “not sustainable” and that the States should provide appropriate funding to offset the burden on the legal sector.

For their first 15 years after qualifying, Advocates and Solicitors have to take on legal aid cases without guarantee of payment on a rota system. That system is estimated to cost local law firms between £5 and £7 million a year, but Advocate Speck states that there’s no legislation requiring the local legal profession to provide the Island’s legal aid system and that in its current form it is “substantially unrestricted and uncapped”.

Currently, the legal profession deals with around 1,300 legal aid cases a year, as well as providing a year-round duty advocates service for the courts and other agencies, but the sharp increase in crime levels over the last ten years, and the plethora of new legislation, has led to the profession dealing with an increasingly complex legal aid workload.

In his written submission to the ongoing Access to Justice Review, Advocate Speck says the allocation of legal aid work on a rota basis means applicants do not have a choice of representation and that this could potentially represent a breach of Article 6.3 of the European Convention on Human Rights (the Convention).

Such an issue also applies to lawyers, who have to represent the client allocated to them, even it the case relates to an area of law they may not be “expert or specialist in” nor a part of their practice. Advocate Speck suggests this may prejudice the client, especially when complex cases are allocated to small firms (including sole traders) who have to balance the demands of legal aid work with their private work, which can result in delays and “may even impact the quality of advice provided”.

Advocate Speck submits that, because the allocation of public funds to help cover lawyers’ costs is not applied consistently, it could lead to a challenge being brought under Article 4.2 of the Convention that a legal aid liability (where financial support is not forthcoming) constitutes ‘forced labour’.

He confirms that says the profession is supporting of improving access to justice, but while there is a willingness to continue to provide legal representation for those who are truly disadvantaged, the burden should be assumed by, or at least shared with, the States.

This could either be through full or partial funding or through the development of initiatives such as a Public Defenders’ Office, the establishment of firms or chambers to service legal aid clients (or co-operatives for smaller firms) or the imposition of limits on the time aspects, value and eligibility relating to legal aid certificates – all of which run alongside an appropriately funded system.