Solicitor advised friend to pay rather than apply for legal aid

sopretty

My friend will be in court soon on a relatively minor offence.
He went to a solicitor today.
He was advised not to apply for legal aid as the judge is very tight and frowns upon applications for legal aid and hands out tougher fines and community service where applications for legal aid are made.
My friend is in receipt of SWA while awaiting approval of JSA.
He has no other means.
Solicitor advised him to just pay 200 euro to him prior to the court date and that he'd get a lesser fine and less chance of community service that way.

Does this sound right?

coylemj

It doesn't sound right at all. If your 'friend' is convicted, the judge will probably ask if he is working in an effort to work out a fine. When the judge sees that the guy has engaged a solicitor from his own resources, he will probably slap him with a fine of the same €200 that the solicitor is asking for. If the solicitor says that his client is on social welfare, the judge will probably figure that he's a drug dealer or selling dodgy cigarettes in Henry St., otherwise how could he afford to pay a solicitor when he's on social welfare?

Here's how it works: if your 'friend' hands him cash, the solicitor has that money in his pocket straight away. If your 'friend' goes the legal aid route, the solicitor will have to claim the fee, he will probably be waiting weeks or months for the payment and when it finally arrives, it will be subject to withholding tax.

If you were a solicitor, which would you prefer?

Pat Mustard

Sounds like the defendant should get a second opinion from another solicitor.

sopretty

coylemj wrote: »

Here's how it works: if your 'friend' hands him cash he has that money in his pocket straight away. If your 'friend' goes the legal aid route, the solicitor will have to claim the fee, he will probably be waiting weeks or months for the payment and when it finally arrives, it will be subject to withholding tax.

If you were a solicitor, which would you prefer?

I'm familiar with how the Legal Aid payment system works.

What I'm not familiar with is whether a judge
A) can be
can be perceived to be
or
C) can be portrayed as being

tougher on Legal Aid defendants?

And in the case of either A, B or C above, whether any of the options constitute a breach of law or malpractice on behalf of either the solicitor or the judge in fact?

And if so, is the cleverest thing to do to turn a blind eye and play along?

Procrastastudy

Cleverest thing would not to be in court in the first place but in lieu of that get another solicitor.

Even if the Judge is tougher, which I suspect is just a bit of 'salesmanship' on behalf of the solicitor rather than true, you're not going to be able to do anything about it so why worry?

sopretty

Procrastastudy wrote: »

Cleverest thing would not to be in court in the first place but in lieu of that get another solicitor.

Even if the Judge is tougher, which I suspect is just a bit of 'salesmanship' on behalf of the solicitor rather than true, you're not going to be able to do anything about it so why worry?

Why wouldn't I be able to do anything about it? Crookedness is not 'salesmanship'.

I'm not worried. It is not me involved.

coylemj

sopretty wrote: »

Why wouldn't I be able to do anything about it? Crookedness is not 'salesmanship'.

But it's a grey area, same as a car salesman saying that a car had 'one careful owner'. The solicitor can say that he was expressing an honest opinion and there's no way that you can prove otherwise.

What he's saying is clearly self-serving but as a solicitor he's not going to give you a rope to hang him.

Procrastastudy

sopretty wrote: »

Why wouldn't I be able to do anything about it? Crookedness is not 'salesmanship'.

I'm not worried. It is not me involved.

Inverted commas usually denote an air of sarcasm. As for not being able to do anything are you suggesting the solicitor should call out the Judge on it? Are you suggesting a Judicial Review? He'll almost certainly need legal aid for that one.

ResearchWill

A solicitor has many duties imposed upon him by Statute and the rules of the Law Society. He also is an Officer of the Court, if a client informs him that he has low means and wishes to apply for legal Aid then he should apply. If the Judge imposes a harsh fine (btw I do not accept this assertion) then the matter can be appealed to the Circuit Court. There was a certain judge of the DC in a certain county that imposed very high fines on all defendants, appeals because of the high fines always led to a reduction.

Pat Mustard

ResearchWill wrote: »

A solicitor has many duties imposed upon him by Statute and the rules of the Law Society. He also is an Officer of the Court, if a client informs him that he has low means and wishes to apply for legal Aid then he should apply. If the Judge imposes a harsh fine (btw I do not accept this assertion) then the matter can be appealed to the Circuit Court. There was a certain judge of the DC in a certain county that imposed very high fines on all defendants, appeals because of the high fines always led to a reduction.

A certain hirsute District Judge perhaps, much appealed and tearfully remembered?

sopretty

Ok, I'll break it down to my naive interpretation of how the law works.

If a judge
A) can be tougher on Legal Aid defendants? Unfair justice system.
can be perceived to be tougher on Legal Aid defendants? Unfair justice system.
C) can be portrayed as being tougher on Legal Aid defendants? Defamation of character of judge.

I am guessing this is a matter for the Law Society.

Pat Mustard

sopretty wrote: »

Ok, I'll break it down to my naive interpretation of how the law works.

If a judge
A) can be tougher on Legal Aid defendants? Unfair justice system.
can be perceived to be tougher on Legal Aid defendants? Unfair justice system.
C) can be portrayed as being tougher on Legal Aid defendants? Defamation of character of judge.

I am guessing this is a matter for the Law Society.

Best bet is to get a new solicitor.

Procrastastudy

sopretty wrote: »

Ok, I'll break it down to my naive interpretation of how the law works.

If a judge
A) can be tougher on Legal Aid defendants? Unfair justice system.
can be perceived to be tougher on Legal Aid defendants? Unfair justice system.
C) can be portrayed as being tougher on Legal Aid defendants? Defamation of character of judge.

I am guessing this is a matter for the Law Society.

Hogan and Morgan student edition - good read on Bias and Judges. I was frankly shocked that a judge can have his won daughter in front of him as a counsel and not have to recuse himself but the rest of it, from a purely theoretical point of view, seems pretty fair.

sopretty

Procrastastudy wrote: »

Hogan and Morgan student edition - good read on Bias and Judges. I was frankly shocked that a judge can have his won daughter in front of him as a counsel and not have to recuse himself but the rest of it, from a purely theoretical point of view, seems pretty fair.

You've lost me there.........

ResearchWill

Procrastastudy wrote: »

Hogan and Morgan student edition - good read on Bias and Judges. I was frankly shocked that a judge can have his won daughter in front of him as a counsel and not have to recuse himself but the rest of it, from a purely theoretical point of view, seems pretty fair.

I never met that Judge but have met the daughter, if the father was anything like his daughter I can bet he would have been uber fair. To be honest that decision may be different in today's age.

My own view I would not object to a judge hearing a case in which their own child was counsel.

ResearchWill

The Mustard wrote: »

A certain hirsute District Judge perhaps, much appealed and tearfully remembered?

Yes may a solicitor now shocked that they miss him.

Pat Mustard

Procrastastudy wrote: »

I was frankly shocked that a judge can have his won daughter in front of him as a counsel and not have to recuse himself

Nemo judex in causa sua applies to the relationship between the judge and the parties to the action, but not the lawyers.

Pat Mustard

ResearchWill wrote: »

Yes may a solicitor now shocked that they miss him.

Tearfully remembered, not fondly remembered!

ResearchWill

The Mustard wrote: »

Nemo judex in causa sua applies to the relationship between the judge and the parties to the action, but not the lawyers.

Not sure Nemo judex in causa sua, more objective bias as per the Pinocet decision in the UK where the Law Lords overturned them selves on the basis that one of thier number who decided the case was married to a person involved in Amnesty International.

2012paddy2012

your friend should go to the court and inform the judge when the case is called that he wants a solicitor and that he cannot afford one as he is not working. Judge will appoint solicitor in the court on the legal aid panel in the court to represent him. Verification of his means may be an issue if the judge feels it is necessary. Common sense would say go to court plead guilty (unless he disagress with the charge) get a small fine pay it off over a few months. Any hiccup , circuit court , is there for appeal. if its a first and relatively minor as you say there will probably be no fine ..just non conviction......feee please!!

sopretty

The Mustard wrote: »

Best bet is to get a new solicitor.

The thing is - what if what the solicitor told him is correct in terms of how this judge operates?

ResearchWill

The Mustard wrote: »

Tearfully remembered, not fondly remembered!

I know one or two who do miss him, even fondly.

ResearchWill

sopretty wrote: »

The thing is - what if what the solicitor told him is correct in terms of how this judge operates?

Appeal!!

Pat Mustard

ResearchWill wrote: »

Not sure Nemo judex in causa sua, more objective bias as per the Pinocet decision in the UK where the Law Lords overturned them selves on the basis that one of thier number who decided the case was married to a person involved in Amnesty International.

Fair enough. The real point that I had attempted to make was that a relationship between the judge and the lawyers does not cause infringement of the rule.

Procrastastudy

I was under the impression that not only did justice have to be done but it had to be seen to be done. Point taken about lawyers though. The lecturing barrister was quite strong in his defence of the decision when I questioned it.

ResearchWill

Procrastastudy wrote: »

I was under the impression that not only did justice have to be done but it had to be seen to be done. Point taken about lawyers though. The lecturing barrister was quite strong in his defence of the decision when I questioned it.

You are quite correct, hence why a decision today may not go the same way. Most barristers would see no problem with a relative of a judge acting in a case, I'm not so sure the general public would see it the same way.

sopretty

ResearchWill wrote: »

Appeal!!

But how will he know whether the judge is being unfairly harsh in the fine? Are there standards? Parameters to fines? Or would this lovely friendly 'give me the 200 and all will be fine solicitor' just tell him - you did well there - you got off lightly!

ResearchWill

sopretty wrote: »

But how will he know whether the judge is being unfairly harsh in the fine? Are there standards? Parameters to fines? Or would this lovely friendly 'give me the 200 and all will be fine solicitor' just tell him - you did well there - you got off lightly!

If the solicitor believes the Judge will go harsh, then if the judge does he will know that the appeal will sort it out. I also can't understand why the sicitor would rather not go legal aid (unless he is not on the panel) as he would receive more than €200 from the legal aid.

Any good legal practitioner will know what the DJ and the CJ will fine in any given circumstances.

Pat Mustard

sopretty wrote: »

The thing is - what if what the solicitor told him is correct in terms of how this judge operates?

Well, perhaps it is true. Sounds unlikely, but then again, I don't know that judge.

Get somebody to recommend a reputable solicitor and get a second opinion. If the second guy says the same thing, then you will certainly have a idea of the reality of the situation.

And, as ResearchWill suggested, even if the judge hands down an unfair ruling, there is the option to appeal.

2012paddy2012

ResearchWill wrote: »

You are quite correct, hence why a decision today may not go the same way. Most barristers would see no problem with a relative of a judge acting in a case, I'm not so sure the general public would see it the same way.

judge should stand aside and get colleaugue to hear case.
transperancy is vital

Pat Mustard

ResearchWill wrote: »

I know one or two who do miss him, even fondly.

Diagnosis: stockholm syndrome.

sopretty

Ok, so assuming this solicitor is very familiar with this judge and is a 'reputable' solicitor; is it plausible that a judge bases the severity of their judgements/fines/sentences etc. on whether you made an application for Legal Aid?

Pat Mustard

sopretty wrote: »

Ok, so assuming this solicitor is very familiar with this judge and is a 'reputable' solicitor; is it plausible that a judge bases the severity of their judgements/fines/sentences etc. on whether you made an application for Legal Aid?

It sounds odd. If I heard it, I would get a second opinion. If the second solicitor said the same, then maybe I would consider that it could be plausible.

coylemj

sopretty wrote: »

Ok, so assuming this solicitor is very familiar with this judge and is a 'reputable' solicitor; is it plausible that a judge bases the severity of their judgements/fines/sentences etc. on whether you made an application for Legal Aid?

It is plausible, but only that - plausible. District justices down the country often remark on the type of cars they see defendants getting out of when parking near the courts, the same people then come in and apply for legal aid. There are members of a certain family in the SW who drive around in bulletproof SUVs and they always ask for free legal aid on the basis that they are unemployed and on social welfare.

There could well be judges who don't take too kindly to people who frequently apply for free legal aid on the basis that they're probably living off the proceeds of their crimes and could well afford to pay for a solicitor.

However I doubt very much that there is a single judge in the country who is prejudiced against everyone who gets free legal aid.

Milk & Honey

Some judges do not give legal aid for lesser offences, particularly road traffic. Some get annoyed. O/p needs to check out the form of the DJ.

ResearchWill

Milk & Honey wrote: »

Some judges do not give legal aid for lesser offences, particularly road traffic. Some get annoyed. O/p needs to check out the form of the DJ.

Legal Aid for Drink driving is very very very rare.

sopretty

It's not a road traffic offence. It's Section 1 - Threatening/Insulting behaviour in a public place or something like that.

Pat Mustard

S.6 of the Public Order Act

Milk & Honey

It is most unlikely there would be legal aid for an offence like that. IMO it is highly likely that a judge would get annoyed at being asked for legal aid. A lot of judges are fed up of public order offence charges appearing frequently on their case lists and simply expect a prompt apology, not an attempt to burden the taxpayer with a solicitors bill.

johnnyskeleton

ResearchWill wrote: »

Legal Aid for Drink driving is very very very rare.

It can be granted where there is a risk of a custodial sentence and since Joyce v Brady it could be given in any case that's complicated.

The real issue is how many solicitors and barristers are actually prepared to do all the work in a drink driving for legal aid rates.

Procrastastudy

johnnyskeleton wrote: »

It can be granted where there is a risk of a custodial sentence and since Joyce v Brady it could be given in any case that's complicated.

The real issue is how many solicitors and barristers are actually prepared to do all the work in a drink driving for legal aid rates.

Any link to these rates to satisfy my curiosity please?

ResearchWill

johnnyskeleton wrote: »

It can be granted where there is a risk of a custodial sentence and since Joyce v Brady it could be given in any case that's complicated.

The real issue is how many solicitors and barristers are actually prepared to do all the work in a drink driving for legal aid rates.

While rush of prison sentence can still be a consideration you are correct Brady added that the charge itself should also be considered and the effect of a conviction on the accused. I would still say it would even under Brady still be very rare to get legal aid for most road traffic offences including Drink Driving.

From the decision

23. The factors in this case which appear to have led to the conclusion that the accused was not “at risk” and therefore told against the application for legal aid – the absence of previous convictions and the accused’s lack of familiarity with a courtroom – were factors which in my view should have led to the opposite conclusion. The impact on a young man of a first conviction for a crime of dishonesty, is considerable. His ability to defend himself effectively was doubtful to put it at its lowest. Having regard to what was involved, I consider that the facts of this case satisfied the statutory test when taken alone. This charge was of sufficient gravity to merit the grant of legal aid. However, when the statutory language is approached, as it must be, in light of the requirements of the Constitution, of which the words of the statute are a somewhat imperfect reflection, then the conclusion is to my mind inescapable. While fully appreciating the motives of the learned District Judge, and recognising the demands imposed by the requirement to deal with a considerable volume of cases under significant pressure of time, I have nevertheless come to the conclusion that the decision to refuse legal aid in this case was wrong and therefore unlawful, and must be quashed. Accordingly, I would allow the appeal.

I think a DD conviction in most cases would not carry the same issues as a conviction for dishonesty. Of course each case on its merits but I would again say very rare.

BTW I have taken a intoxication case appeal for legal aid my share of the legal aid fee after 2 days in court was €150 inc VAT.

Procrastastudy

ResearchWill wrote: »

BTW I have taken a intoxication case appeal for legal aid my share of the legal aid fee after 2 days in court was €150 inc VAT.

Thanks for the info.

I think I need to develop a healthy interest for another subject in addition to Criminal Law.

Given what I can gather the the legal aid system seems to be so good here (albeit poorly paid) that the 'gangsters' use it themselves. Yet another preconception of well paid barristers defending men with 'alternative' business shattered!

ResearchWill

Procrastastudy wrote: »

Thanks for the info.

I think I need to develop a healthy interest for another subject in addition to Criminal Law.

Given what I can gather the the legal aid system seems to be so good here (albeit poorly paid) that the 'gangsters' use it themselves. Yet another preconception of well paid barristers defending men with 'alternative' business shattered!

Legal Aid can be very well paid, and very badly as an example an indictment plea on first or second return date pays €1144.00 plus VAT, now yes you have read the book of evidence met the client and researched any issues of law but while a lot less than that fee was €1504.00 plus VAT its still a good fee. On the other hand an adjourned sentence where you have been around court all day and it gets put back gets a fee of €124.00 plus VAT in some cases more work goes into a sentence than a running trial the adjourned fee used to be over €300 if I remember correctly. Like any profession these fees are great if you are doing a lot of cases and €124 is not much if its all you get that week.

Our man in Havana

Those are circuit court rates?

What would the fee level for an indictment that was still in the DC prior to the BOE being served?

ResearchWill

Our man in Havana wrote: »

Those are circuit court rates?

What would the fee level for an indictment that was still in the DC prior to the BOE being served?

Have no idea, while I was once briefed at that stage (long story) I never got paid, issue of computer says no.

MagicSean

One phrase I heard quite often from a particular judge was "if you have money to pay for drink/drugs you can afford to pay a solicitor"

Milk & Honey

MagicSean wrote: »

One phrase I heard quite often from a particular judge was "if you have money to pay for drink/drugs you can afford to pay a solicitor"

A very common response from judges with regard to public order matters. Also means the bigger the fine the less money there will be available for drink/drugs for a while to come.

Procrastastudy

MagicSean wrote: »

One phrase I heard quite often from a particular judge was "if you have money to pay for drink/drugs you can afford to pay a solicitor"

Wouldn't be the same inspired orator who told people they could afford a solicitor if they could afford a lady of the night?

ResearchWill

Procrastastudy wrote: »

Wouldn't be the same inspired orator who told people they could afford a solicitor if they could afford a lady of the night?

Not sure which one gives the better fcuking.