The Law Society of Ireland has said two critical issues have been identified by their members as efforts continue to resolve the dispute involving the new Criminal Legal Aid Scheme.
Hundreds of solicitors nationwide opted to withdraw their services following the introduction on July 1st of a flat fee payment of €520 per client.
Previously a solicitor was paid for each court appearance by a single person, starting at €239.38 for the first appearance, and then a fee of €59.86 for each subsequent hearing,
The dispute has caused disruption in district and circuit courts nationwide, and the adjournment of a large number of cases.
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Minister for Justice Jim O’Callaghan met members of the Law Society on Monday.
Law Society president Rosemarie Loftus sent a letter to the Minister on Friday in which she acknowledged several positive developments in recent days. These include splitting fees into two instalments and a commitment to ongoing engagement with the profession as the scheme beds in.
The Criminal Law Committee of the Law Society held a meeting with 250 criminal law practitioners on Friday to discuss the recent changes to the scheme.
In a statement the Law Society said it had received feedback 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.
The first critical issue identified by practitioners relates to treatment of separate and distinct criminal cases that happen, for efficiency, to be before the court at the same time.
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The Law Society emphasised that a solicitor instructed on multiple separate cases is not dealing with a single body of evidence, a single set of allegations, a single Garda or a single expert witness.
“Each matter requires separate preparation, consultation with the client, examination of evidence, legal analysis, and representation, with each case involving different complainants, different witnesses, different Garda investigations, different CCTV footage, separate and distinct disclosure obligations, separate and distinct legal issues and different factual circumstances,” the statement said.
“For example, a defendant could be charged with a burglary that was alleged to have taken place in Dún Laoghaire in February, an assault that was alleged to have taken place in Swords in April, and a public order incident that was alleged to have taken place on Grafton Street in June.
“These cases involve entirely separate and distinct locations, times and victims, yet they could be brought against the one defendant on the one day.”
The Law Society said under the new scheme these cases would result in just one Legal Aid Certificate for €520 if they began on the same date, whereas three Legal Aid Certificates would issue if these three cases started on separate dates.
“The workload involved in both scenarios is the same. The workload involved does not diminish or disappear merely because the cases happen to be listed before the same judge on the same day.”
The second issue concerns complex cases of extended duration. Typically, these cases involve children, people with mental health issues and people remanded in custody by judges, where more hearings are required due to multidisciplinary involvement, waits for psychiatric reports or the requirement to return to court every two weeks where the accused is in custody, for example.
The statement said that under the new scheme, a solicitor who represents an accused in court for a non-complex matter would be paid the same as someone who represents a troubled child in a complex case involving 20-plus court appearances.
Loftus said the significant majority of criminal legal aid solicitors would “regard the scheme as workable and viable” if these measures were adopted on an interim basis, pending the outcome of the department’s review.
In a statement the Department of Justice said the Minister has agreed to split the flat fee in such a way as to allow for a two-thirds payment at the start of a case. The remaining third to be paid at the end of the case or “after 12 months of the commencement of the case, whichever is the first in time.”
O’Callaghan has also confirmed that the new scheme “allows for a new certificate to issue for an accused person where the charges arising are distinct and separate to any court appearance made by that person previously”.
The statement added that the Minister has asked his officials to keep an ongoing review of the operation of the scheme in the Children’s Court where over twenty appearances are required over the coming six months, to inform of any changes that may be required within these limited circumstances.
