Yvonne Daly: Funding changes threaten existence of criminal legal aid lawyers

There is a disconnect between the public perception of criminal defence lawyers and what really happens in Garda stations and courtrooms

Professor Yvonne Daly: 'An exodus of defence lawyers to the prosecution or to other work presents a serious risk to the balance that keeps the scales of justice level.'

The Department of Justice is proposing to introduce a flat-fee scheme for legal aid lawyers representing individuals in the district court. 

This new approach to fee payment would mean that no matter how many times a lawyer has to appear in court on behalf of an individual they will receive the same fee. This might work well in some cases, but not in more complex cases with more vulnerable defendants. 

If this proposal is enacted and proves not to be economically viable for defence lawyers, it may increase the exodus of dedicated, experienced lawyers from criminal work. This would be disastrous for the criminal justice system as a whole.

For over 20 years, my research has focused on the legal regulation of criminal investigations, and I have a particular interest in the role of lawyers in the early stages of the criminal process. 

In that time, I have observed a disconnect between the public perception of criminal defence lawyers, particularly those who operate within the legal aid scheme, and the reality of the work being done in our Garda stations and courtrooms. 

If you think it is challenging and costly to bring cases through the district court with legal aid lawyers in place, try doing it without them. File picture: Larry Cummins

The caricature of greedy lawyers, gaming the system and becoming rich by defending the worst of the worst does not reflect the reality of criminal practice for the vast majority of defence solicitors across the country.

The criminal defence solicitors I have met through my work are diligent, hard-working, and deeply caring individuals. Many of their clients live chaotic lives, with histories of trauma, neglect, abuse and addiction. 

Defence solicitors, particularly in the district court, support their clients in navigating the criminal process, and likewise support the criminal process engaging with these individuals. Far from the simplistic notion that their focus is on "getting people off" of charges, defence solicitors often play a crucial role in helping their clients face up to their wrongdoing. 

This is evidenced by the fact that approximately 90% of defendants plead guilty. More broadly, defence solicitors are serious about upholding rights, not just for the benefit of an individual client, but as a safeguard for the societal value of the criminal process as a whole. 

The ongoing fairness of our system relies on a fundamental balance between both strong prosecution and strong defence.

Interestingly, unlike other jurisdictions, many of those who work for the prosecution in Ireland began their practice in defence. This cross-pollination strengthens the quality of prosecution as they bring with them a depth of experience and insight that shapes their sense of fairness and justice. 

However, an exodus of defence lawyers to the prosecution or to other work presents a serious risk to the balance that keeps the scales of justice level.

Many of those who move from defence to prosecution or elsewhere do so because of the pressures of defence work, the poor remuneration, and the desire for a better work-life balance. 

The flow of new entrants is also low. From a typical cohort of over 200 final-year law students, I now see only two or three who express a genuine interest in pursuing criminal practice. 

When students look at the reality of the profession — the pressure, the responsibility, and the unsociable hours spent in Garda stations and on prison visits — they increasingly choose to look elsewhere.

Flat-fee proposal

A new catalyst which may propel even more criminal defence solicitors away from this essential work, and deter new entrants, is the recently proposed flat-fee funding model. This has sparked frustration and a genuine sense of hurt across the profession.

There seems to be implicit in the proposal a stinging suggestion that solicitors regularly and purposefully occasion delays in the district court process. This is not the experience on the ground, where delays are sometimes simply unavoidable, and other times driven by systemic inadequacies and inefficiencies outside a solicitor's control.

When a solicitor seeks expert reports to inform the court’s decision-making, demands disclosure from the State, requires an interpreter for a client, or simply seeks to ensure that a vulnerable client actually shows up to court, they are not purposefully delaying or obstructing. 

They are performing the essential administrative and often invisible legal labour required to make a court hearing possible. This is the work that ensures the system functions fairly.

If criminal defence work becomes economically unviable for dedicated, conscientious practitioners, we can easily predict what will happen. We have seen it elsewhere — many lawyers have withdrawn from legal aid work in family law due to similar pressures. 

If the same happens in criminal practice, it will lead to a two-tier system of justice: high-quality representation for those who can afford it or those with very straightforward cases on the one hand, and a chaotic alternative on the other, where those who cannot pay or whose vulnerabilities increase the complexity of their cases are left without representation. 

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This would inevitably see a surge in lay litigants whose lack of understanding of the law and judicial process would consume even more public time and money. If you think it is challenging and costly to bring cases through the district court with legal aid lawyers in place, try doing it without them.

While concerns have been floating for some time about the future of criminal defence, the flat-fee proposal, if implemented, may bring us to a dangerous tipping point. 

We need to recognise the value of the dedicated professionals who defend the rights of the accused, and thereby the rights of every one of us. Otherwise we risk losing a system that protects us all.

• Professor Yvonne Daly is full professor of criminal law and evidence at the School of Law and Government, Dublin City University.