CONCERNS OVER SOLICITORS “maximising” their earnings through criminal legal aid payments has been highlighted in a confidential Department of Justice report.
The review, seen by The Journal, helped inform Justice Minister Jim O’Callaghan to make changes to the criminal legal aid fees paid to solicitors, which are due to kick in in July.
The introduction of a flat-fee payment model for District Court cases under the legal aid system means that from 1 July, solicitors will receive a single payment of €455 for District Court criminal cases regardless of the number of court appearances involved.
A number of solicitors have said publicly that, in their view, the measures would have a “detrimental effect”.
The department report shows that one legal firm offered a “crash course” to solicitors on how to “maximise” revenue through the scheme.
The seminar showcased how solicitors 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.
‘Financial implications’ to the state
The report warns that the “financial implications” of the additional claims to the state “cannot be overstated”.
Citing examples, the department said it uncovered 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.
In another instance, 10 separate legal aid certificates in respect of the same defendant were assigned to four solicitors from the same firm.
Over the past two years, the department said it has queried legal aid claims with the courts service and solicitors after it emerged the number of legal aid certificates granted to one single accused has, in several cases, increased dramatically.
However, the report goes on to note that in the vast majority of cases, the same solicitor (and not different solicitors) were in court representing clients.
The department report states that regulations do allow for colleagues from the same legal firm to stand in for each other in cases where the solicitor on the certificate cannot attend the hearing, but the intention “was not to allow for the maximisation of profits under criminal legal aid through abuses of the system”.
In addition, the report also raised concerns about judges “rarely” demanding to see a statement of means that would prove applicants cannot afford to pay their own legal fees.
The departmental review looked at more than 350,000 District Court cases that took place during 2022 and 2023, and found that cases with criminal legal aid take significantly longer than those without, though the outcomes are similar.
Cases with criminal legal aid take an average of 313 calendar days to complete, compared to 133 days for cases without, it found.
Solicitors withdrawing services this week
Changes to the legal aid fees to a flat-fee model is resulting in solicitors withdrawing from legal aid work for three days this week in opposition to the proposed reforms.
Courts around the country face disruption this week as a result, with a number of court reports on Tuesday giving examples of trials stalling or being delayed.
On Tuesday, The Irish Times reported that a High Court judge criticised the Law Society of Ireland for failing to inform the courts of proposed withdrawal of legal aid work by solicitors this week, describing it as “highly discourteous”.
Mr Justice Paul McDermott said the court had not been made aware of any proposed action by solicitors and that this was “disappointing to say the least”.
Meanwhile, The Irish Independent reported that another judge in Dundalk Circuit Court had to apologise to a jury for wasting their time after a trial they were due to hear had to be postponed.
New flat-fee model
While solicitors have publicly voiced their concerns about the new measures, it understood the justice minister is not for turning on the issue, and believes the new fee structure will improve efficiencies and speed up case resolution, while also reduce unnecessary adjournments.
Speaking in May of this year, the minister pointed out that while criminal case volumes in the District Court have decreased, expenditure on criminal legal aid in the District Court has nearly doubled, from €19 million in 2015 to €37 million in 2024.
The minister said the flat fee model provides “a generous set fee”, telling the Dáil that his department’s review identified a series of structural issues in the administration of justice in the criminal legal aid scheme, such as the payment per appearance incentivising additional adjournments.
“I think this is just clearly the case. If we compare cases in the District Court which are not funded by criminal legal aid to those that are, we can see there are many more adjournments in the latter context.
“Additionally, multiple certificates granted for related cases increase costs and complexity, multiple solicitors are assigned in the same firm for related charges and a highly complex payment processing system creates a significant administrative burden.
I would not introduce this scheme if I thought it was going to undermine the rights of individuals to a fair defence.
The justice department said it is aware of media reports of a potential withdrawal from some services provided under the criminal legal scheme, stating that it continues to engage with all relevant stakeholders, including the Law Society and the Bar Council in advance of reforms being introduced on 1 July.
The department said O’Callaghan fully recognises the critical role played by the legal professions in the effective administration of criminal justice, and equally that the Criminal Legal Aid scheme is fundamental to upholding the constitutional and human right to a legal defence.
A statement from Law Society to The Journal said it has highlighted over many years the need to improve how both the Criminal and Civil Legal Aid schemes operate.
It said it remains focused on ensuring that changes that are implemented are grounded in practical evidence and reflect the realities of how the District Courts operate, so that the scheme remains fair, workable and sustainable.
Law Society raises issues with flat fee model
“We want to ensure that the system continues to work effectively for those who rely on it most,” said the statement, adding that the society is 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.”
The Law Society said it is hoping for meaningful engagement with the Department of Justice to “work through what are very significant concerns”.
The statement went on to say that there is a need to ensure the scheme remains flexible enough to deal with cases involving higher levels of need and that it can continue to support effective legal representation across the country.
The Department of Justice said extensive engagement with the relevant stakeholders, including legal professionals and their representative bodies, on the proposed changes to the scheme, has been carried out.
Previous meetings with officials, submissions from representative bodies have been invited, received, and considered, according to the department, stating that the minister met with the Bar Council on 27 May and with the Law Society on 29 May.
With reporting by Niall O’Connor