Legal aid lawyers in Gozo manage the system that they benefit handsomely from, even vetting the applicants themselves, giving rise to the potential for conflict of interest, an investigation by The Sunday Times of Malta has shown.
In contrast, in Malta, applications for legal aid are wholly managed and cases are assigned to lawyers by a government agency, the Legal Aid Agency.
Legal aid lawyers in both Malta and Gozo are paid an annual flat fee of €6,000 by the government no matter the number of cases.
While legal aid lawyers in Malta make less from clients than they would if they had to represent those clients privately, the situation in Gozo is dramatically reversed.
This is because of the small number of clients per legal aid lawyer in Gozo as well as the fact that lawyers’ charges are markedly lower in Gozo.
Although Gozo technically falls under the Legal Aid Agency, Marc Sant, its chief advocate, confirmed that legal aid lawyers in Gozo manage the whole application process themselves in civil cases.
In Malta, the agency vets the applicant based on means and cause before assigning a case to the lawyer whose turn it is on the roster.
In Gozo, however, an applicant may apply at the private office of any of the legal aid lawyers and the lawyer would handle the entire process before filing the application in court, which holds the roster of lawyers.
Part of the vetting process is deciding on a “probable cause for litigation” – an applicant could be rejected on this basis. In Malta this is decided by agency, in Gozo by the lawyer.
Asked if he sees a conflict of interest in the lawyers performing the roles of regulator and service-provider simultaneously, Dr Sant said: “I know what you mean, but I don’t think so. We have never received complaints about Gozo.” He added that “we plan to hold more meetings and increase monitoring.”
Yet, the potential for conflict of interest is borne out by a case in Gozo that this newspaper was made aware of. A legal aid lawyer assisted a woman in a separation case for several weeks in out-of-court representations before he himself processed her application for legal aid. The standard procedure is for the lawyer to process the application in the first instance and then a lawyer from the roster is assigned on the case.
Moreover, in this case, the lawyer was aware of allegations that the woman had been working illegally and was informed of an open investigation over benefit fraud. In such cases in Malta, the agency would make inquiries with relevant government bodies, such as JobsPlus, as part of its checks. (The agency did not reply directly to the question of whether lawyers or anyone else in Gozo were responsible for making similar inquiries.)
Legal aid lawyers in Gozo on balance make dramatically more than lawyers representing those same clients privately
The system becomes even more questionable when taking into consideration how Gozo lawyers stand to gain financially from it.
Besides the annual €6,000 fee, if the litigant is awarded monies in civil suits (including from division of estates in inheritance and community property in separations), the lawyer is paid from the pot of that money in addition to the retainer. In marital separations the lawyer is additionally paid by the client for the drawing up the contract of separation, a fee that could amount to €1,000 or more.
A source at the court revealed that legal aid clients in Gozo, nearly all foreigners or Maltese people who reside in Gozo (as opposed to Gozitans), are party to a range of lawsuits and that most litigations in Gozo involve monetary disbursement (marital separations, suits for damages, sale of property, and inheritance).
In civil cases in which money is awarded, given the retainer in proportion to the tiny number of clients, legal aid lawyers in Gozo on balance make dramatically more than lawyers representing those same clients privately. The balance of earnings is tempered only to a small extent by work on criminal cases, which amount to a handful of mostly minor cases every year.
Even after the recruitment of five new lawyers to legal aid in Malta by Minister for Justice Owen Bonnici last week, the discrepancy in lawyer to client ratio between the two islands remains massive.
Taking the new additions into account and transposing the figures of cases in 2017 still shows a gaping disparity: lawyers in Malta are being assigned nearly six times as many clients as those in Gozo – there are now 20 legal aid lawyers in Malta and five in Gozo.
“We have always applied a ratio of one legal aid lawyer in Gozo to three or four in Malta,” Dr Bonnici said, citing statistics as far back as 2008 (see table).
However, that ratio is not proportional to the workload: there were 335 people on legal aid in the civil courts in Malta last year but only 15 in Gozo.
The workload on Malta lawyers increases even further if one adds the criminal cases. No records are kept but research by the Legal Aid Agency has shown that the number of persons handled in the criminal courts in Malta is roughly equal to cases in civil courts. The 23 legal procurators engaged in Malta to assist the lawyers only partially compensate for the imbalance.
Every legal aid lawyer in Malta handles more clients than the sum of clients of legal aid lawyers in Gozo put together.
This newspaper asked the Justice Minister what was the justification for appointing an additional legal aid lawyer in Gozo last February given the light workload. He cited the “new challenge” that the right to assistance by a lawyer during arrest or interrogation introduced a few years ago has “imposed upon us.
“Someone could be arrested and, if he is unable to reach his private lawyer, may choose to make use of the services of the legal aid lawyer on duty. The reason for the extra appointment in Gozo was to anticipate this new phenomenon of having to have a lawyer at the point of arrest.”
“I don’t want to get into a situation, for example – especially now that summer is coming and the police may arrest a number of people if, say, there is an incident – where we might get stuck on availability of lawyers. I don’t want to take risks.”
Unlike civil cases, in criminal cases anyone can summon the legal aid lawyer on duty prior to interrogation or upon arraignment in court – lawyers take turns of duty in cycles of 24 hours. However, the number of arrestees who request a legal aid lawyer in Gozo is relatively small.
“I calculate that it’s less than 50 a year,” a source within the police said. “It’s mostly African and Middle Eastern immigrants who get drunk and get into fights, or involved in other petty crimes, who request a legal aid.”
Dr Bonnici stressed the importance of having a lawyer available for arrestees, laying out a scenario in which, among five lawyers, two may be abroad and one sick. “In that scenario how would we cope if there is an incident in the summer? Moreover, having five lawyers at least would mean having a lawyer in place every day throughout the week.”
A source within the police told this newspaper that some of the legal aid lawyers in Gozo at times do not answer the phone, particularly at night, when called on behalf of an arrestee.
Numbers of legal aid lawyers in the past 10 years
| Year | Malta | Gozo |
| 2008 | 6 | 2 |
| 2009 | 5 | 2 |
| 2010 | 13 | 3 |
| 2011 | 13 | 3 |
| 2012 | 12 | 3 |
| 2013 | 12 | 3 |
| 2014 | 11 | 3 |
| 2015 | 10 | 3 |
| 2016 | 14 | 3 |
| 2017 | 14 | 4 |
| 2018 | 15* | 5* |
*Another 5 have been appointed this week.
Meanwhile, in Malta, new recruits for a strained system
The five new legal aid lawyers appointed by Minister for Justice Owen Bonnici last week are set to bring some relief to what Carla Camilleri, assistant director of human rights NGO Aditus Foundation, has characterised as underpaid legal aid lawyers in Malta.
This follows on the heels of the engagement of a second lawyer within the Legal Aid Agency, something that will allow the agency to process applications for legal aid more expeditiously.
This year has in fact seen the rapidest consolidation of the agency since its inception in 2014 – its budget was increased from €150,000 in 2017 to €400,000 in 2018 – although agency chief Marc Sant told this newspaper they are still in need of “bigger premises and additional administrative staff.”
The agency is tasked with processing applications in civil cases. Applicants are initially vetted for eligibility on the basis of their means (see sidebox). Some flexibility is inbuilt into the means criteria, particularly in marital separation cases.
Dr Sant explained: “If for example a woman has always been a housewife and she does not have an income or a bank account in her name – joint bank accounts don’t count – in that case she qualifies for legal aid. Even if she has a car in her name, its value would not be taken into account. We have some leeway in this sense.”
Dr Sant or his colleague then discuss the case with the applicant to assess probable cause for litigation – an application may be rejected at this stage.
“I take a decision on the prima facie evidence,” Dr Sant explained. “In inheritance cases I check the will and inform the client that he may have not have a cause, but then he may argue that the will was drawn up under duress. In a recent case a man was refusing to pay maintenance to a child being raised by the mother. I told him he was wrong in law, but he was the defendant so denying him legal aid would have been denying him the ability to defend himself.”
A question that inevitably comes up is whether the remuneration of €6,000 yearly flat fee for the lawyers is sufficient given the volume of work. The latest addition of five lawyers, bringing up the total to 20, will still see lawyers handle tens of cases each. Even though the lawyers are paid court-set fees in the event that their clients are awarded monies in civil cases, their earnings still fall well short of earnings expected in clients represented privately (in contrast to Gozo – see article on opposite page).
“The general perception is that legal aid lawyers are not good,” explained Dr Camilleri, who authored a report on legal aid for Aditus. “The problem isn’t necessarily that they are not good, but that they are not paid commensurately with the complexity or amount of work put into the case. Moreover, they have to take any case assigned irrespective of their specialisation. So I think the lawyers are bound to prioritise their private clients over legal aid clients.”
Dr Sant said that he “stands to be convinced about the idea” of paying the lawyers according to work done. “We lack the administrative capacity to handle the extra work this would entail to start with. Moreover, this could give rise to abuse as it would incentivise the lawyers to generate work and file numerous legal applications.”
Another issue raised by Dr Camilleri is that the accused in criminal cases often only gets to meet the legal aid lawyer when they appear in court – no prior consultations, no chance for the lawyer to prepare the defence – placing the accused at a disadvantage.
This newspaper could not establish the exact dynamics, whether this is due to lapses by the police or legal aid lawyers, or whether those same accused had consulted a different lawyer-on-duty during arrest.
In reply to a cluster of questions probing for specifics in this regards via e-mail, Dr Sant replied generically. “It is the fault of no one – neither the legal aid lawyer nor the police – it is how the system works. We are in discussions to try to bring applications in the criminal sphere in line with those in the civil sphere.”
Eligibility to legal aid in civil cases:
■ Yearly income less than the minimum wage.
■ Assets or capital less than €6,988.
Eligibility in criminal cases:
■ Anyone arrested or prosecuted for any crime irrespective of means.
■ Victims of crime represented parte civile.