Lawyers lose challenge over files for legal aid clients

Two solicitors with the Legal Aid Board have lost a High Court challenge to a board decision formalising a practice of allowing a limited number of authorised officers access to client files, including files containing confidential or privileged information and certain family law files.

Clients who secure legal aid are bound by laws allowing such access, Ms Justice Mary Laffoy also found.

After the decision, Frank Brady, director of legal aid with the board, said such access is granted only to a very small number of authorised officers and is necessary in order for the board to be able to independently review the performance of its solicitors to ensure clients receive a quality service.

Pending the outcome of the court action, the board had suspended implementation of the disputed decision of April 28th, 2003, which effectively formalised the practice of access to files in place since the 1980s.

The challenge to the decision was brought by legal aid solicitors Catherine Martin and Diarmuid Doorley.

Yesterday, Ms Justice Laffoy rejected their claims that the decision is in excess of the board's powers under the Civil Legal Aid Act 1995 and in breach of the Constitution or European Convention on Human Rights. She also dismissed claims that Section 32.2 of the 1995 Act, which provides that legal aid solicitors should permit the board access to files, is unconstitutional.

She took the view that the 1995 Act permitted authorised officers access to family law files but reserved her decision on whether access could be permitted to court-ordered reports for family law cases.

The board decided in March 2001 that the process of access to files was to proceed in accordance with arrangements in place since the early 1980s and formally confirmed that decision on April 28th 2003.

It denied that authorised officers would gain access to case files without the express or implied consent of clients or that its decision was unlawful.

Ms Martin and Mr Doorley had complained that non-legal personnel, administrators and civil servants, could access case files and take notes of those without either the consent of the solicitor acting for the client or the express consent of the client. While they accepted it was necessary for the board to review files, they claimed that should be carried out by, or under the control of, another solicitor.

The judge rejected arguments that there is a constitutional imperative that every communication which a client makes to a solicitor in confidence should be protected from disclosure.

The issue was whether implementation of the board's decision would impact unfairly on the conduct of a client's legal business by their board solicitor, she said.