Case Explained: Solicitors maximise number of court appearances in legal aid cases to boost fees, review finds – The Irish Times – Legal Perspective

Criminal legal aid rules and regulations for District Court cases are “consistently flouted” in practice, a Department of Justice review has found.

Criminal legal aid cases cost more, take almost three times longer than non-aided cases to complete and the fee structure “incentivises” lawyers to maximise the number of appearances for each case, it said.

The department has recommended radical reform, centred on replacing the current fee structure with a “one accused, one fee” €455 payment to solicitors, to cover all appearances from the beginning to the end of a case. The current structure pays €239.38 per appearance for one accused and €59.86 for each subsequent appearance.

The new fee is based on the average cost of three appearances, adjusted upwards to reflect the removal of payment for multiple legal aid certificates. It would be reviewedon a regular basis.

The proposal would end a complicated sliding scale of payments linked to the number of defendants, appearances and legal aid certificates.

A statement of means must be submitted to the judiciary as a condition of payment under the scheme, the department also proposed.

Statements of means, the review noted, are infrequently requested by judges when considering granting legal aid and, when they are, are rarely provided.

Some defendants who believed they had been granted legal aid had informed the department they were also being charged privately by their solicitor, which is prohibited under legal aid rules.

The “systemic failure” to produce statements of means, while not linked to the current fee structure, further showed how legal aid rules and regulations were “consistently flouted in practice, with significant implications for the budget”, the review said.

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The proposed reforms are designed to simplify administration, save costs, reduce delays “and reduce opportunities for abuse”, the review said.

In addition to the costs of the legal aid scheme, the additional court time taken up by legal aid cases has resourcing and costs implications for all criminal justice agencies, including the courts and prisons service, gardaí and judiciary, it noted.

The review examined Courts Service data on about 350,000 District Court cases in 2022-2023.

It was prompted by a significant rise in criminal legal aid payments from €19 million in 2015 to €37 million in 2024, despite a drop in the volume of criminal cases before the District Courts.

Almost half, 46 per cent, of all offences in the District Court receive legal aid. Rising expenditure is driven by factors including an increase in offences that more frequently attract legal aid, increased granting of multiple legal aid certificates and a “disproportionately high” number of appearances in criminal legal aid cases, the review said.

Cases with legal aid take an average 313 days to complete, compared to 133 days for cases without it. The average number of appearances for cases with legal aid is 5.8 compared to 2.8 appearances for cases without.

Adjournments are unnecessary in many uncomplicated summary cases which do not attract custodial sentences, such as no insurance, but most such legal aid cases are “nearly always” adjourned multiple times, the review said.

There is currently no method of recording reasons for District Court adjournments, it noted.

For cases with legal aid, the main outcome is a strike out order (21.3 per cent), the offence taken into consideration (16.2 per cent) or a fine (15 per cent). For cases without legal aid, the main outcome is a fine (38.1 per cent), strike out (31 per cent) or taken into consideration (6.2 per cent).

Multiple aid certificates are granted “for no stated reason”, the review said. There is “frequently” no signature from judges in relation to the multiple certificates granted and it is usually District Court clerks who sign the forms confirming the granting of separate payments, it said.

The overall number of cases where multiple certificates are granted has increased and the number of certificates granted to one single accused has, in several cases, “increased dramatically”.

Multiple solicitors from the same legal firm “frequently request” legal aid be assigned to them in respect of the same defendant facing multiple charges. In a case where 30 legal aid payments were granted for multiple certificates for one defendant, the 30 separate certificates were divided among seven solicitors in the firm.

In most such cases, the same solicitor, not different solicitors, was in court representing the client, the review said. While solicitors are permitted stand in for each other, the intention was not to allow for maximisation of profits under legal aid “through abuses of the system”.

The issue of multiple certificates, and assigning different solicitors to them is subject of 12 judicial reviews, including over the refusal of some judges to grant separate certificates to multiple solicitors for charges arising from the same incidents, the review noted.