Solicitor says ‘strike could go on for a very long time’
A CARLOW solicitor has warned that the nationwide withdrawal of criminal legal aid services could drag on indefinitely as the 1 July deadline for new fee structures came and went with the flat fee of €455 (upped to €520 in the last few days) rejected.
Speaking to outside Carlow District Court on Wednesday 24 June, John O’Sullivan of John O’Sullivan’s Solicitors in Carlow said the dispute remained unresolved as of midday that day, with no direct ministerial engagement on the horizon.
“The bottom line is it could go on for a very long period of time, effectively,” he said.
At the centre of the dispute is a plan by the Department of Justice to replace the existing per-appearance payment model with a flat fee per client, regardless of how many court appearances a case requires. Under the current system, solicitors are paid €239.38 for an initial district court appearance and €59.86 for each subsequent hearing.
It is estimated that thousands of court cases around the country have had to be adjourned since the withdrawal of services began. However, at Carlow District Court, there was some business as usual. Solicitors dealt with all cases involving people in custody, matters that required adjournment for various reasons other than the strike had hearing dates set by the judge and one matter where the individual wanted to go ahead without representation was finalised, while Judge Geraldine Carthy also went on to deal with family law matters.
There was no sense of discord in the courtroom.
Mr O’Sullivan said the profession was standing firm. “There’s significant unity around the country in relation to this matter, fortunately,” he said. “Now, how long is a piece of string when you come to it? But there’s a great unity with all the solicitors that are dealing with criminal cases. So, once people are united, we can press on for another while.”
He said the roots of the dispute run deeper than the current proposals, tracing the conflict back to austerity era cuts that were never fully reversed. “It’s connected back to the aftershocks of the recession, where 32% was cut off the legal aid rate and was never restored, effectively. Only 10% was restored.”
A similar flat-fee model was previously introduced in family law and solicitors warn that experience serves as a cautionary tale for what may follow in criminal practice, with many experienced practitioners having left the family law legal aid scheme because the remuneration no longer reflected the work involved.
Mr O’Sullivan said the same dynamic had already played out on the family law side. “They introduced a flat-fee system in the family law side of practice and the private practitioner scheme, so many people had to leave it because they literally couldn’t afford to be involved in it because if you’re getting a flat fee for 20 appearances, it’s not viable. And they’re trying to bring in that system on the criminal law side and we can’t allow that to happen.”
He said the impact of the proposed changes would fall hardest on regional courts. “I’d say it probably affects regional ones a bit more,” he said.
Explaining why he thinks the flat fee doesn’t make sense, he said: “What’s not being explained in the media is that every case is different. Some cases require probation reports, some cases other special reports and it takes time to get these things together. And you could have, maybe, five, six adjournments when you’re waiting to get that paperwork to assist the court in making a decision.”
As of last Wednesday, Mr O’Sullivan said there had been no breakthrough. “As of now, there’s still no formal engagement with the minister. The Law Society, acting on behalf of the membership and the Criminal Law Committee of the Law Society, has been in pretty much constant contact with the Department of Justice. They want to sit down and kind of hammer out a deal if that’s possible.”
He said the pressure on the system is mounting. “It’s getting to the stage now where the pressure cooker is on. It’s affecting the actual smooth running of everything now.”
Minister for justice Jim O’Callaghan has defended the proposed reforms, pointing to spending on free legal aid rising from €19 million in 2015 to nearly €40 million this year, despite a decline in the number of criminal cases before the district court. He said there were “very clear abuses” in the current system that he was obliged to address.
Mr O’Sullivan dismissed suggestions that the current arrangement lends itself to exploitation. When asked about claims that some matters can appear before a court more times than necessary in order to rack up charges, he said the accusation was unfounded. “There’s no real proof – that’s anecdotal kind of stuff. It’s similar to the rumour that all good lawyers go to Heaven.”
He was equally clear that there was no room for compromise on the core question. “The idea that they wish to introduce a flat rate is a bad idea. I think the model that currently exists has to be reinstated effectively.”
Law Society president Rosemarie Loftus has said the situation had escalated to a point “none of us wanted to reach,” describing it as deeply regrettable, given the society’s sustained efforts to engage with the Department of Justice at every level.
