Solicitors are being encouraged to ‘maximise’ criminal legal aid payments by assigning multiple staff to individual cases, a confidential Department of Justice report has warned.

The documents, obtained by the Irish Daily Mail, show that one legal firm offered a seminar on how to ‘maximise’ revenue from the scheme.

The ‘financial implications’ of the additional claims for free legal aid for the State ‘cannot be overstated’, the report warns.

The damning document also raised concerns that judges are ‘rarely’ demanding to see a statement of means that would prove applicants cannot afford to pay their own legal fees.

There is also evidence that solicitors are still charging clients who are in receipt of free legal aid.

This comes as solicitors begin a three–day strike over Government efforts to introduce a new flat fee for the criminal legal aid scheme in the District Courts.

President of the Law Society Rosemarie Loftus has called the proposals ‘a cost–cutting measure dressed up as reform’.

In the report, Department of Justice officials highlighted that the statement of means necessary to prove someone is entitled to free legal aid is ‘infrequently requested’ by judges, and even when requests are made, the documents are ‘rarely furnished’ to the court.

It says: ‘While the systemic failure to produce statements of means is not linked to the current fee structure, this further shows how criminal legal aid rules and regulations are consistently flouted in practice, with significant implications for the budget.’

On legal aid applicants also being charged by their solicitors, the report said the department ‘regularly receives’ correspondence directly from defendants, requesting confirmation that they had been granted legal aid as they were not asked to provide any documentation by the court, or because they were also being ‘charged privately’ by their solicitor, which is ‘prohibited under criminal legal aid rules’.

This week, the High Court’s Judge Paul McDermott criticised the Law Society of Ireland for failing to inform the courts of proposed withdrawal of legal aid work by solicitors, describing it as ‘highly discourteous’.

Solicitors have voiced their concern about the introduction of a new flat fee set to be paid to criminal solicitors in the District Court who avail of legal aid.

Under the current system, when an individual is before the court on multiple charges, solicitor firms are able to get multiple payments from the legal aid scheme. 

The report also explicitly says that solicitors are ‘openly advertising maximising profits’ under the system.

‘In order to maximise earnings, multiple solicitors from the same legal firm frequently request legal aid be assigned to them in respect of the same defendant who is facing multiple charges,’ it states. 

‘For example, in a District Court case where 30 separate payments were granted in respect of multiple legal aid certificates for one defendant, these 30 separate certificates were divided amongst seven solicitors from the same firm.’

The report also noted that in the vast majority of these cases, the same solicitor – and not multiple different lawyers – was in court representing the same single client.

It also highlighted a presentation called ‘A Crash Course on Legal Aid Applications in the District Court’, which the report said informed lawyers on how they ‘can maximise the legal aid by assigning each prosecution in a different solicitor’s name from the same firm’ when applying for criminal legal aid certificates.

This presentation, which has also been seen by the Mail, was presented by Fergal O’Rourke, a qualified solicitor, who worked for Ferry Solicitors at the time. 

According to his LinkedIn, Mr O’Rourke has also appeared as a contributor to the Pat Kenny Show on Newstalk discussing road traffic law. 

In the presentation, it was stated: ‘If your client has a number of new charges before the court, let’s say two matters, and both are assigned in the same solicitor name, that solicitor will only receive one payment as the matters are for the same client on the same day.

‘However, if that solicitor has a second solicitor on the legal aid panel in the firm, you can maximise the legal aid by assigning each prosecution in a different solicitor’s name from the same firm.’

Mr O’Rourke, who now works for Eleanor Kelly Solicitors in Drogheda, told the Mail: ‘I have nothing really to say in relation to it, to be honest with you.

‘It was given in a previous office that I worked in and I suppose it was a practice that was very prevalent in Dublin.

‘I am working in Co. Louth, it’s not really as prevalent as it was. But I have nothing really to add, it was a presentation... without my knowledge that it was going to be publicised.

‘My understanding was that it was an internal document. It obviously wasn’t, that’s pretty much it.’

Ferry Solicitors was contacted for comment.

The presentation also had the logo of the Irish Criminal Bar Association and the Irish Council for Civil Liberties on it. Both were contacted for comment.

A judgment from the High Court confirmed the existence of this practice. Judge Siobhán Phelan noted that one solicitor wanted to ‘secure the assignment of separate solicitors from his firm as opposed to multiple certificates in his own name as a means of enhancing the level of fees payable to solicitors in the firm’.

‘The reason for seeking the assignment of different solicitors from the same firm of solicitors in practice is explained by the fact that multiple assignments serves the purpose of securing payments to the same firm on foot of separate legal aid certificates, even though the cases were heard together or sequentially and the accused was represented by the same legal representative.’

From July 1, Justice Minister Jim O’Callaghan is set to reform the legal aid system in a bid to manage ballooning costs.

The report noted that while criminal case volumes in the District Court have decreased, expenditure on criminal legal aid in the District Court has nearly doubled, from €19million in 2015 to €37million in 2024.

Instead of the current system, which is based on sliding payment scales, granting payments for multiple appearances which ‘incentivises’ solicitors to seek multiple hearings, a one–person–one–fee system is to be introduced.

At present, solicitors in the District Court get €239.38 for the first day, and €59.86 for days after that. 

Under the proposed new system a draft fee of around €582 for cases in the District Court will be payable to solicitors ‘regardless of the number of appearances’.

However, the final figure settled on by the Department was €455.

A spokeswoman for the Law Society said: ‘We are seeking to address a range of issues that have been identified in the department’s proposals.

‘These include how the proposed flat fee structure fails to reflect the actual number of court appearances required for these complex cases, or the significant amount of work involved outside the courtroom.’