Legal aid is the concept of providing legal advice and assistance to individuals and entities that would otherwise be unable to afford legal representation and/or access to the court system. Legal aid is regarded as an important and central part of and functioning society and legal system as it ensures that all can gain access to justice, have the right to counsel, the right to a fair trial, and benefit from equality in the eyes of the law.
In Malta, legal aid is provided by the government on a means tested basis and their mission statement states their aim as “to ensure that the low-income persons are professionally and legally represented in a broad spectrum of litigations, defence and advocacy in a democratic society.”
Figures from 2016 show that there are seventeen legal aid lawyers and twenty-five legal procurators in Malta and Gozo who are assigned civil and criminal cases on two different rosters. The system differs somewhat to situations in other countries- in the UK for example, legal aid is designed to meet the costs of legal advice, family mediation, and representation in a court or tribunal. The difference is, that as well as this government offered legal aid, one can also benefit from pro bono legal advice from most medium to large sized firms, and in the case of civil issues, no win-no fee assistance.
The issue in Malta is that there are just not enough legal aid lawyers to go around and this combined with a lack of “pro bono culture” which is prevalent in other jurisdictions, it is culminating in a situation where some of the most vulnerable members of our society are unable to access basic legal advice in a timely manner, if at all. One such reason for this distinct lack of legal aid practitioners could due in part to the low rate of remuneration. A lawyer on a part-time retainer receives €2,329.36 per year and a full-time legal aid lawyer can only expect to earn €19,582 per annum. Whilst money is not everything, it is noted that these rates of pay do nothing to encourage professionals into the field and often mean that they must take on additional private work to make ends meet. This can lead to situations where private work takes priority and they are unable to dedicate adequate time and energy to legal aid cases.
This system has made it impossible for lawyers to offer the same quality of care and attention that they offer to private clients and is therefore negatively impacting the outcome of issues and cases affecting the users of the service. What is developing, is a situation whereby not only does having a lot of money ensure that you have access to the best legal representation, but could also mean that those receiving legal aid are in fact receiving a substandard quality of care.
Maltese lawyer, Dr Ann Spiteri, a member of the Legal Expert Advisory Panel, has raised other issues with the system, namely that legal aid lawyers are appointed by the Justice Minister, yet their wages are paid by the Attorney General. This could give rise to a possible conflict of interest as quite literally, the defendant’s lawyers salary is being paid by the opposing party. Whilst it is the opinion of Dr Spiteri that no one is allowing a conflict of interest or bias to interfere in their work, it is a concern that should be addressed in the form of a holistic justice reform. She also suggested that means testing should not be carried out until the end of proceedings- why should a defendant have to pay for legal proceedings against them only for them to be acquitted because the prosecution did not have enough evidence to proceed? If at this point, they qualify for legal aid, they should not be expected to pay.
Perhaps there is also more to be done in terms of offering pro bono services to members of the community as well as looking at increasing the rate of pay for those that offer such a valuable service to society. Encouraging this as a part of a healthy corporate and social responsibility programme should be considered by top firms and practitioners, as whilst everyone knows that a lawyer’s work is never done, it is important to put something back into the community and society that they form an integral part of.