State legal aid providers encounter emptiness of pockets

Photo: Aldo Luud / Õhtuleht

Bar Association says it’s running out of this year’s state legal assistance money – by October. Justice minister Andres Anvelt thinks this is because BA does a poor job managing the funds and orders cuts to lawyers’ hourly fees.

The battle has been quietly raging for a year, erupting a few weeks ago as BA came public with 1^st half year costs. Turns out, a whopping €2.55m has been spent of the €3.84m provided from state coffers, as of end of June.

Of that, lion’s share has gone to pay the layers who, pursuant to law, act as court representatives for least privileged people, minors or persons accused in certain crimes and misdemeanours.

«The current prognosis is severe. So much legal assistance applications are in the pipeline that we are nearing a two month minus,» said BA chancellor Kristel Voltenberg.

Thus, BA has laid the case before justice ministry: if shortage of money is not cured, the money meant for legal assistance runs out in October. Then the lawyers will have to choose if they will wait till February to get their year-end salaries – or refuse to see new clients.

Probably, the people in need would not be left helpless, but the bills would be carried over into next year’s budget, creating therein a €1m hole, if not more, and the lawyer services would be on the brink of disruption by the summer of 2015.

To see who’s to blame we need to explain the state legal assistance system. The law says: state legal aid needs to be ensured by BA, the Bar Association. BA, correspondingly, has so arranged the issue that the legal aid cases may be assumed by all of its members i.e. 910 layers or their aides.

In reality, a fraction takes an interest: about 120 lawyers a year. The reason is simple: the hourly fees payable for state legal assistance do not even come close to market prices.

BA has been crafty at navigating the situation. In January, for instance, if lifted hourly fees for state legal aid from €40 to €60. On the other hand, to manage exceeding largeness of legal aid bills, in certain fields they imposed limits – layers aren’t allowed to write over 20 or 20 hours as working time. 

Ms Voltenberg reminds us that as the budget was put together last year, BA asked for €5.7m for state legal assistance, getting only €3.84m. Meanwhile, the amount of legal assistance cases is impossible to foresee.

«It’s like building a house: they give you a sum and say that the house must be of good quality; during construction, however, it is discovered that for the same amount the third floor and roof windows are also needed,» she described.

The chancellor claims that Supreme Court has, meanwhile, advised €110 as hourly fee for state legal aid. BA has calculated that money problems would cease to be at €5.7m. «Not only ensuring the layers’ hourly fee, this would also allow them to invest in support services: a decent office where to serve the clients, secretaries, means of communication etc,» listed Ms Voltenberg.

Justice minister Andres Anvelt takes a view directly opposite. Last night, he signed a directive which, figuratively speaking, cancels the wage rise fixed by BA and orders them to manage with the funds that remain.

The directive casts no nice light on BA behaviour. According to it, the BA now short of money entered the financial year with €600,000 plus in surplus. Recently, the sum meant for state legal aid has increased by 28.6 percent, while the sum total of legal aid applications has shrunk by 12.5 percent.

What’s more: as hinted by Mr Anvelt, BA may have misread its tasks. «State legal assistance is a public law function. We are compensating it to the degree that a lawyer will not be in the red. To provide state legal assistance according to market prices, the budget would not endure,» said the minister.

Mr Anvelt suggested that instead of the free-will system, BA might distribute the state legal aid obligation among its members on equal basis. Then, there’d be an end to the shortage of lawyers and the quality would go up. «I am standing for the state budget and the interests of the citizens. If one does not want to obey obligations laid on BA, one does not need to be a lawyer. One may also be a jurist.»

The debate – whether state legal aid is public law function or a service purchased on the market – is on in several European nations. «Perhaps we do need a good court fight here,» thinks Mr Anvelt, who is not about to apply for increase of state legal aid money out of 2015 budget.  

Ms Voltenberg said BA would discuss the ministerial directive next week and decide on further steps.

The lawyers talking to Postimees said there are missteps on both sides. The low interest by lawyers is explained by time limits set by BA. «A complex civil case will not get done in 10 or 20 hours. I quit, unwilling to do a low-quality job,» said sworn lawyer Edith Sassian.

But she does not approve cuts to hourly fees. «Even the €60 is uncompetitive, that’s a fact. But if there were no time limits and the courts would not cut legal aid sums, then this money would still be of interest to lawyers.»