6. Legal aid Flashcards
Legal Aid - Overview - What is the summary overview for the Legal Aid Scheme?
Legal Aid Guidelines (30 Sept 2005) - paragraph 1.3.2
01 Oath in RC: by lawyers provides that they will:
(a) assist widows, poor people, orphans, and
(b) those undefended
02 scheme extends beyond these groups
03 under 15 yrs’ call to participate:
(a) all Jersey lawyers
(b) under 15 years’ call required to participate
(c) as directed by Bâtonnier of Law Society now delegated to Acting Bâtonnier
(d) tour de rôle - lawyer appointment now on rotation basis - ‘cab rank’ rule
Note: advocate has no choice if Bâtonnier directs advocate to represent client
02 this is the extent of rule’s application in Jersey
generally - member free to decide to accept instructions from client except member appointed to act under Legal Aid Scheme - Rule 1.1(a)
(B) Client relations - R.1
01 Lawyer’s choice to accept instructions from client, but must under Legal Aid - R.1.1(a): member:
(a) free to decide to accept instructions from client
(b) except if appointed to act under Legal Aid Scheme
02 Client cannot force lawyer to act
03 Legal aid cases:
(a) Bâtonnier decides legal representation and lawyer selected by ‘tour de rôle’ - Welsh v Deputy Judicial Greffier 2009
- Bâtonnier decides if D’s case merits legal representation
- Client cannot select
- Lawyer selected by ‘tour de rôle’
-
State provides lawyer at public expense
(b) Legal aid scheme provided by statutory framework and regime - Holmes v The Law Society of Jersey and the Bâtonnier 2018
Facts: Appl made 2 judicial review claims relating to:
- personal claim: decision on legal aid, and
- systemic claim; legal aid scheme generally
Held: Deputy Bailiff considered:
(a) personal claim dismissed: for delay or on ground of standing
(b) systemic claim: Deputy Bailiff considered
1. statutory framework for guidelines
2. non-compliance with Code is breach of conduct
3. statutory regime for structure of legal aid
4. has effectiveness of statutory authority
5. no arguable case by Appl to justify systemic attack on basis that legal aid system is ‘inherently or systematically unfair’ as defined in R (Howard League for Penal Reform) v Lord Chancellor 2017
(c) Legal Aid Scheme obligations on lawyers:
1. mandatory compliance with Code of Conduct - bye-law 38 of the Law Society of Jersey Bye-Laws 2007
2. compliance with legal aid guidelines - R 1.4 of Code of Conduct
3. non-compliance is breach of good conduct
(C) New Access to Justice Law
01 New Law: States adopted in May 2019 Access to Justice (Jersey) Law 2019
(a) not in force yet
(b) purpose:
1. improve access to justice
2. establish legal aid scheme, and
3. for connected purposes
02 Lawyers duty - Art 2(1): advocate or a solicitor:
(a) duty to provide legal aid to person in accordance with Law
(b) without prejudice to RC oaths administered under Advocates and Solicitors (Jersey) Law 1997
03 Failure is misconduct - Art 2(2): if lawyer fails to provide legal aid:
(a) professional misconduct
(b) complaint made on grounds of failure to discharge duty
(c) determined under Part 3, The Law Society of Jersey Law 2005
04 New Legal Aid Scheme:
(a) change in way assessed and administered
(b) no significant change to professional duty
(c) administered by Judicial Greffier
(d) guidelines made by Chief Minister with advice of new Legal Aid Guidelines Advisory Committee
Legal Aid - Guidelines - What do the Legal Aid Guidelines require?
Legal Aid Guidelines (30 Sept 2005) - paragraph 1.3.2
01 Oath in RC: by lawyers provides that they will:
(a) assist widows, poor people, orphans, and
(b) those undefended
02 scheme extends beyond these groups
03 under 15 yrs’ call to participate:
(a) all Jersey lawyers
(b) under 15 years’ call required to participate
(c) as directed by Bâtonnier of Law Society now delegated to Acting Bâtonnier
(d) tour de rôle - lawyer appointment now on rotation basis - ‘cab rank’ rule
Note: advocate has no choice if Bâtonnier directs advocate to represent client
02 this is the extent of rule’s application in Jersey
generally - member free to decide to accept instructions from client except member appointed to act under Legal Aid Scheme - Rule 1.1(a)
Full text:
Legal Aid Guidelines (30 September 2005 as amended 7th June 2010)
Paragraph 1.3.2
The Legal Aid Scheme grown out of obligations placed on profession through oath administered to advocates and solicitors when they are formally admitted to practice in Jersey.
The relevant part of that oath reads:
“Vous….assisterez aux Veuves, Pauvres, Orphelins et Personnes indéfendues.”
The Legal Aid Scheme now extends well beyond the provision of legal assistance to widows, poor people, orphans and the undefended.
All Jersey advocates and solicitors of less than 15 years’ call participate in the island’s Legal Aid Scheme and are required to carry out legal aid work as directed by the Bâtonnier. The Legal Aid Scheme is administered in accordance with the “Tour de Rôle” which is effectively a list of participating lawyers to whom legal aid work is allocated in rotation.
Unless a costs order is made by a court in favour of the lawyer concerned or the legally aided individual, the solicitor or advocate (or the firm that they are employed by, hereinafter referred to as their “Firm”) receives no payment for their services other than the fees, if any, which they are permitted to charge to the client. The advocate or solicitor or their Firm may be able to recover out of pocket disbursements from the Legal Aid Vote administered by the Judicial Greffier (see Paragraph 1.4.2.3 below).
This part of these guidelines is divided into (a) claims and proceedings in respect of which legal aid will generally be granted (Section 1.4), and (b) claims and proceedings where legal aid will not generally be granted (Section 1.5).
These guidelines also deal with the merits test that any particular legal aid applicant must satisfy in order to obtain legal aid in any particular case.
Legal Aid - Client relations - How is a lawyer selected under the Legal Aid Scheme?
Client relations - R.1
01 Lawyer’s choice to accept instructions from client, but must under Legal Aid - R.1.1(a): member:
(a) free to decide to accept instructions from client
(b) except if appointed to act under Legal Aid Scheme
02 Client cannot force lawyer to act
03 Legal aid cases:
(a) Bâtonnier decides legal representation and lawyer selected by ‘tour de rôle’ - Welsh v Deputy Judicial Greffier 2009
1. Bâtonnier decides if D’s case merits legal representation
2. Client cannot select
3. Lawyer selected by ‘tour de rôle’
4. State provides lawyer at public expense
(b) Legal aid scheme provided by statutory framework and regime - Holmes v The Law Society of Jersey and the Bâtonnier 2018
Facts: Appl made 2 judicial review claims relating to:
- personal claim: decision on legal aid, and
- systemic claim; legal aid scheme generally
Held: Deputy Bailiff considered:
(a) personal claim dismissed: for delay or on ground of standing
(b) systemic claim: Deputy Bailiff considered
1. statutory framework for current guidelines
2. statutory regime provides structure for legal aid
3. has effectiveness of statutory authority
4. no arguable case by Appl to justify systemic attack on basis that legal aid system is ‘inherently or systematically unfair’ as defined in R (Howard League for Penal Reform) v Lord Chancellor 2017
(c) Legal Aid Scheme obligations on lawyers:
1. mandatory compliance with Code of Conduct - bye-law 38 of the Law Society of Jersey Bye-Laws 2007
2. non-compliance with Code is breach of conduct
3. compliance with legal aid guidelines - S.3 of Code of Conduct
4. non-comply with guidelines is breach of good conduct
Full text:
R.1 Client relations
R.1.1 Taking on clients
A member:
(a) is free to decide whether to accept instructions from a client other than where a member is appointed to act under the Legal Aid Scheme;
(b) must not do anything to compromise or impair a person’s freedom of choice in placing instructions for legal services;
c) must not act in the following circumstances:
(i) if by acting, he or she will knowingly assist in or commit a breach of the law, regulations or the rules of professional conduct (including these Rules);
(ii) if the member, his or her employee or his or her firm do not have sufficient resources or competence to deal properly with the matter;
(iii) if instructions are given by someone other than the client, or by one person on behalf of others in a joint matter, he or she is unable to obtain confirmation that the client or all of the clients agree with the instructions given;
(iv) if he or she knows or has reasonable grounds to believe that the instructions are given by a client who is under duress or undue influence;
(v) if he or she knows or has reasonable grounds to believe that the instructions are given by a client who is vulnerable unless (subject to R.1.1 c)
(iv) he or she is satisfied that the instructions represent the client’s wishes and that the client understands the consequences of those instructions; or
(vi) where professional embarrassment arises during the course of an instruction, even if there is no actual legal conflict.
The Law Society of Jersey Bye-laws 2007
38 Code of Conduct
(1) An ordinary member must observe the Code of Conduct in the conduct of his or her professional practice.
(2) A breach of the Code is professional misconduct.
Law Society Code of Conduct 2017 Ed
Rule 1.4 Legal Aid
Members in practice for less than 15 years must represent “veuves, pauvres et personnes indéfendues” in accordance with their obligations under their respective oaths through the scheme adopted by unanimous resolution of the Bar passed on 20 August 1904, being the oaths administered pursuant to Article 8(6) of the Advocates and Solicitors (Jersey) Law 1997. Members shall represent such persons through a “tour de rôle” as directed by the Bâtonnier or those acting for him in accordance with the Legal Aid Guidelines.
Legal Aid - Client relations - How is a lawyer selected under the Legal Aid Scheme?
New Access to Justice Law
01 New Law: States adopted in May 2019 Access to Justice (Jersey) Law 2019
(a) not in force yet
(b) purpose:
1. improve access to justice
2. stablish legal aid scheme, and
3. for connected purposes
02 Lawyers duty - Art 2(1): advocate or a solicitor:
(a) duty to provide legal aid to person in accordance with Law
(b) without prejudice to RC oaths administered under Advocates and Solicitors (Jersey) Law 1997
03 Failure is misconduct - Art 2(2): if lawyer fails to provide legal aid:
(a) professional misconduct
(b) complaint made on grounds of failure to discharge duty
(c) determined under Part 3 of The Law Society of Jersey Law 2005
04 New Legal Aid Scheme:
(a) change in way assessed and administered
(b) no significant change to professional duty
(c) administered by Judicial Greffier
(d) guidelines made by Chief Minister with advice of new Legal Aid Guidelines Advisory Committee
Full text:
Access to Justice (Jersey) Law 2019
2 Duty to provide legal aid
(1) Without prejudice to the generality of –
(a) the oath of advocates of the Royal Court administered under Article 8(6)(a) of the Advocates and Solicitors (Jersey) Law 1997 and set out in the Code of 1771; or
(b) the oath of office of solicitors of the Royal Court administered under Article 8(6)(b) of the Advocates and Solicitors (Jersey) Law 1997 and set out in Schedule 1 to that Law,
an advocate or a solicitor is under a duty to provide legal aid to a person in accordance with this Law.
(2) A failure by an advocate or a solicitor to provide legal aid in accordance with paragraph (1) shall be professional misconduct and a complaint against an advocate or a solicitor alleging professional misconduct on grounds of failure to discharge that duty shall be made and determined under Part 3 of The Law Society of Jersey Law 2005.
