The road to injustice

June 06, 2018 16:50
The government seems incapable of recognizing that the Legal Aid Department is, in effect, a giant firm of solicitors and that its officers are primarily lawyers whose decisions are subject to stringent professional ethics. Photo: Bloomberg

“Why did you stop practicing in England?” is a question I am still frequently asked.

As with virtually all life’s decisions, it was a combination of factors, mainly personal but underpinning the motivation was my perception of the insidious extension of malignant government influence over the legal profession.

In 1985 the availability of Legal Aid to litigants in both civil and criminal proceedings in the UK was generous and comprehensive.

Moreover, because virtually every barrister subscribed to the Legal Aid system, the very best counsel accepted instructions.

Anyone charged with homicide and all the serious personal injury cases would automatically be entitled to a Queen’s Counsel. There was no perception of counsel assigned to undertake a legally aided case being "second best".

In part, this was because the Bar honored the Cab Rank principle: if a case was within your area of competence and you were not already instructed in a case that clashed either with your court diary or otherwise conflicted out, you were professionally obliged to accept the instructions.

Fees paid by Legal Aid in civil claims tended to be about 10 percent below the market rates but this was regarded as part of one’s public obligations.

On balance, because it was more than your reputation was worth to prosecute a civil claim that had no or poor prospects of success, the majority of legally aided civil claims succeeded, which meant that civil legal aid was a trifling charge on the public purse.

A substantial percentage of my practice in England and Wales was funded by Legal Aid.

However, Criminal Legal Aid fees were already under attack. A system of report forms had been introduced in which defense counsel had to enter a mass of information upon which, supposedly, the fees would be assessed.

Unlike civil legal aid, which was administered by the Law Society, criminal legal aid was in the purview of the civil service and the dread hand of small-minded bureaucrats was busily engaged in slashing counsel’s fees.

In fairness, the system was open to and was subjected to abuse by wealthy fraudsters who concealed their assets and secured top-quality representation in their lengthy fraud trials. These often resulted in hefty legal aid bills.

This was a legitimate subject for scrutiny but perhaps because it involved too much work, the bureaucracy hammered the fees of the criminal Bar across the board instead of verifying the fraudsters’ sudden lack of funds.

That process continued unabated until today, and it is difficult for barristers at the English Criminal Bar to make a reasonable living, compelling them to withhold their services from Legal Aid in order to drive home the message.

In my opinion, by far the most devastating and unfair step was the UK’s decision to abolish Legal Aid for civil claims in all but a tiny minority of cases.

This was all the more inexplicable because civil legal aid largely paid for itself.

I do not claim psychic powers but I did see the writing on the wall and felt that the time had come to leave behind a society fixated on diminishing access to justice.

When I began to practice in Hong Kong in 1986, its Legal Aid system was probably the best in the world.

Yet in the 32 years that I have practiced here, I have observed the Treasury exerting more and more influence over the Legal Aid Department.

Box tickers and bean counters have the Department in a vice-like grip with the prospect being that the criteria favor price over quality or in the more colorful phrase, if you pay peanuts all you get are monkeys.

Within the financial constraints imposed on him, the Director of Legal Aid does a brilliant job of administering Hong Kong’s system to provide professional representation for every litigant for whom the cost of bringing or defending a claim or defending themselves against criminal charges is beyond their reach.

The government seems incapable of recognizing that the Legal Aid Department is, in effect, a giant firm of solicitors and that its officers are primarily lawyers whose decisions are subject to the stringent professional ethics that govern the legal fraternity in the private sector.

In practice, this should mean that each legally aided litigant should be assigned the best qualified counsel and solicitors for their case.

But ignorant and ill-advised restrictions are imposed on the Department, limiting the number of cases that a barrister or solicitor can be assigned within a 12-month period and capping the total of fees that can be earned over a similar period.

True it is that some of our less competent legal brethren demand a "fair share of the cake" and the government justifies its policy on this basis. Can you imagine a similar policy being implemented in the field of medicine? “Oh, Dr. Dogsbody hasn’t done a thoracotomy for quite a while, so let him have a go on this patient.”

Just because it is taxpayers’ money doesn’t mean that the assignment of counsel and solicitors should be decided on the basis of giving everyone an equal slice of the cake.

The issue should be seen objectively from the perspective of the litigant who, naturally, wants the best person for their case.

By and large, the solicitor to whom the litigant has gone is best positioned to judge the most appropriate counsel. But the ultimate selection is done by the Department’s in-house officer who, in virtually every instance, has no first-hand experience of conducting a case.

This is not criticism of the Legal Aid Counsel but of a set of rules and regulations imposed on them by a benighted government which dictates how and to whom the work shall be assigned.

If the dread hand of jobsworth civil servants (often at the behest of bigoted legislators) is not removed from the work of the professional lawyers manning the Legal Aid Department, how long will it be before Hong Kong follows the UK down the road to institutionalized injustice?

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Queen's Counsel