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Legal Aid rules on counsel to be challenged in court

Kathy Lynn Simmons, the Attorney-General and the Minister of Legal Affairs

A cost-cutting policy that forced Legal Aid clients to use an “in-house” Government lawyer rather than their own counsel is to be challenged in the Supreme Court, The Royal Gazette can reveal.

The news came after Kathy Lynn Simmons, the Attorney-General and Minister of Legal Affairs, said earlier this month that the move, implemented in March 2019, slashed spending at the Legal Aid Office, which provides representation for people who cannot afford it.

Ms Simmons said the office now employed in-house lawyers to take on cases, rather than hiring private firms.

But an application for a judicial review has been filed on behalf of one defendant in a criminal case who was refused a legal aid certificate for his lawyer of choice – and another is expected to be submitted this week.

The litigants will argue that the money-saving policy breached a constitutional right to a lawyer of their choice.

But the Government is expected to respond that the right to pick a lawyer is not absolute.

It is likely to argue that an amendment to the Legal Aid Act 1980 two years ago allowed the Government to appoint a lawyer for a defendant.

Archibald Warner, a former magistrate and now senior legal consultant at Resolution Chambers, raised a red flag about the amendment in an op-ed in The Royal Gazette in August.

He wrote: “Sadly, in 2018, the Legal Act 1980 was amended to deny litigants their attorney of choice, save in three exceptional circumstances – and to force litigants to accept in-house attorneys unknown to them.

“It cannot be denied that the operation of the legal aid scheme, like many other government schemes, is an expensive undertaking for the Government.

“Nevertheless, under the rule of law, it is the responsibility and duty of government to continue to manage and efficiently administer its constitutionally mandated responsibilities, rather than abandoning them and crying that it is too expensive.

“The section 12 amendment is a callous, unlawful way to avoid financing a constitutional right.”

Resolution Chambers filed a judicial review application on behalf of a defendant earlier this year.

Mark Pettingill, a former Attorney-General, last week told a judge that he planned to file a similar application on behalf of a defendant.

Mr Pettingill, of Chancery Legal, said that he acted for the man pro bono after a legal aid certificate for his services was refused.

He claimed: “It’s a breach of section 6 of the Constitution. The Government has tried to amend the law to say that they can do this.

“We are saying that law is unconstitutional. That is going to be challenged.”

Mr Pettingill said: “You can’t have the state controlling the defence. We are going to file a judicial review saying that the legal aid committee – it will be against the Attorney-General as well – is acting unreasonably and unfairly.”

Ms Simmons told the House of Assembly this month: “The justification for implementing an in-house staff counsel model was in recognition that operational efficiencies and savings, institutional knowledge-building, and providing opportunities for a cadre of specialised Bermudian defence lawyers would offer better delivery of services within public spending limitations.

“This has resulted in a containment of costs.”

She said the service had reduced its costs from $2.66 million in 2012/13 to $1.32 million last year.

A total of three lawyers and three administrative staff now run the Legal Aid Office under the new arrangement.

The lawyers are understood to be Elizabeth Christopher, Charles Richardson and Paul Wilson, who act as consultants, not public officials.

The Government did not respond to a request for comment.

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Published December 22, 2020 at 9:16 am (Updated December 22, 2020 at 9:15 am)

Legal Aid rules on counsel to be challenged in court

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