Friday, November 03, 2006

Anguilla Legal Aid Clinic Proposal to Government

From: Don Mitchell CBE QC
To: The Department of Social Development, Anguilla
Date: 3 November 2006
1 Background Situation
There are many persons in Anguilla who for one reason or another are unable or reluctant to retain an attorney-at-law to assist them in securing their legal rights. This failure is often related to the cost, or the perceived cost, of those services. There is no government-sponsored legal aid programme to help persons who are unable to afford legal services. Many attorneys presently provide pro-bono advice and services on a private ad hoc basis to clients who are unable to pay the commercial cost of their time and assistance. There is no programme whereby such assistance is organized or documented.
2 Outline Proposal
The proposer, Don Mitchell CBE QC (hereinafter Mitchell), is a retired attorney and high court judge living in Anguilla. Mitchell proposes to assist the Department of Social Development (hereinafter the Department) to organize and provide a legal aid service to deserving members of the community. The proposal is that the Department will provide him with office space, limited administrative support, and he will attend at the Department and advise the Clients (hereinafter the Client) of the Department on three half-days a week. He will also make himself available outside of office hours to advise by telephone free of cost Clients of the Department who for one reason or another cannot make or keep an appointment. Mitchell has no present intention of limiting the services he will provide, eg, to one or two years. But, if the service is to have a guarantee of long life, other attorneys must be attracted to participate and to volunteer their time. Given that this is a new venture, and one cannot foresee the difficulties and problems that may arise, Mitchell is agreeable to the service being offered to the public on an experimental basis to start with, say for one month. If it proves to be popular, the Department may want to enter into a longer term arrangement. The service is to be called the ANGUILLA LEGAL AID CLINIC. The general outline of the service is as explained in the attached brochure, Appendix 1.
3 The Situation
Mitchell is a Queens Counsel and a retired judge. As such, there are limitations to the services that he can render personally. For example, as a QC he is not permitted by his oath to do solicitor’s work, ie, writing letters and settling legal documents. As an ex-judge he is prohibited for the present from appearing in a court of law as the legal representative of a litigant. He is limited to a consultancy role, ie, advising and counseling Clients. Someone else will have to be found to go to court and to provide other necessary legal services to deserving Clients.
4 The Solution
The solution is to have private attorneys do the actual legal work. At present, attorneys are accustomed to spend a substantial amount of their billable time doing free or subsidized legal work. It is anticipated that many of them will welcome[1] having some independent office screen out deserving welfare cases, and by prior agreement to deal with them knowing that they are deserving of free or subsidized legal services. Some of these attorneys will in time be encouraged to attend at the Clinic and to there advise and assist Clients of the Clinic.
5 The Roster
After approval of the Department for the project is obtained, one of the first steps will be to fill out the Roster. The Roster is in the attached form, Appendix 2. It lists every law firm on the island and the services which each attorney will be prepared to offer to Clients. Each attorney will be encouraged to complete and return to the Clinic an application to be rostered in the attached form, Appendix 3. This form when completed will provide the information needed for the Roster. It is this Roster that will ensure that the legal aid services are fairly distributed among the profession, and that undue advantage is not taken of a few attorneys.
6 Client Intake
Mitchell will provide most of the services offered directly by the Clinic, until other attorneys are recruited on a voluntary basis to assist him. He will need help from the Department’s staff. The first job is the completion of the Intake Form, a sample of which is at Appendix 4. When a Client who needs legal advice attends at the Clinic, someone will have to interview the Client and complete the Intake Form. This will give Mitchell all the information he needs to begin to assist the Client. The receptionist will keep the Legal Aid diary, and will give all appointments. During his first interview with the Client, Mitchell will take the detailed statement from the Client and collect all other documents[2] and information needed to perform the Clinic’s services. Mitchell proposes that a fee[3] of EC$10.00 be charged and paid by the Client before the Client is given an appointment to see[4] him.
7 Referral
Once the Client has been interviewed and Mitchell has determined that the Client has a need for legal services that he is not, as explained above, competent to perform, he will contact one of the participating law firms and refer the Client to the attorney in question. This is done by a Referral Letter in the form attached as Appendix 5. An important part of the referral process is Mitchell’s intervention in negotiating a fee that the Client is comfortable with paying, and making a note of it on the documentation. Another important part of the referral process is the agreement of the attorney to permit the Clinic to enquire from time to time[5] how the work in assisting the Clinic’s Client is progressing. The rules[6] that attorneys will follow will be in the form set out in Appendix 6.
8 Feedback/Assessment
Maintaining standards will be ensured by a two-pronged process. First, the Client will be encouraged to report back to the Clinic with an assessment of the services. This will be done in part by using the Client Feedback Form attached as Appendix 7. Additionally, the attorney assisting the Client will be required to give a Status Report from time to time to the Clinic in the form attached as Appendix 8.
9 Full Legal Aid
The proposed services fall far short of a full legal aid system. Such a system would involve government providing a fund out of which lawyers can be paid a reasonable fee to provide professional services to the most needy in the community. It is submitted that Anguilla is a long way from being able to afford such a service. The service that is being suggested in this proposal may be described as an interim or intermediate legal aid service.
10 Budget/Equipment/Personnel
Given that this proposed service will be offered free of charge and using existing facilities within the Department, it is difficult to prepare a budget. However, it may be useful to itemize here the furniture, staffing, and equipment that will be required. A rough draft is attached as Appendix 9.

[1]     Many hours are wasted in dealing with a client’s problem before it is realized that the client will never be able to afford to pay for them, and a decision often has to be made on an ad hoc basis to deal with the problem pro bono.
[2]     As regards documents, Mitchell proposes not to collect original documents, but only photo-copies or scanned or photographed copies.
[3]     As regards a fee or charge made by the Department, it is proposed that a nominal fee be charged. This is for two reasons. No person in Anguilla is so poor that a few dollars cannot be found for essentials. Second, it is a generally observed fact of human nature that whatever is free is undervalued. People only respect and value something that they have paid for in one way or another.
[4]     It will not be possible to charge a Client who telephones him for legal advice, and it is to be expected that there will be a significant number of telephone-only Clients once the service becomes more widely known. [It may be possible in due course to put in place an honour system for billing such persons.]
[5]     This monitoring and oversight will be essential for reassuring the illiterate Client and other welfare Clients who are insecure in dealing with professionals.
[6]     It is very likely that these rules will change and evolve over time as Mitchell negotiates with the Bar Association and as the Clinic and the attorneys grapple to deal with problem situations that cannot at present be envisaged or planned for.