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Polly Hui

After years of lobbying, criminal lawyers will finally get fees for their pretrial work

The government has agreed to pay criminal lawyers in legal aid cases for pretrial work, a breakthrough after years of lobbying by the Law Society and Bar Association.

A Law Society spokesman said it was the first step in a long-needed reform of the outdated legal aid scheme, which he said failed to provide a level playing field for litigants.

Payment for pretrial work will be officially announced in the Legislative Council on February 26. The rates for pretrial work  have not been discussed. Lawyers were told of the  change in a closed-door meeting with representatives of the judiciary, Legal Aid Department and Justice Department last month.

The society argued that the pay system had put off an increasing number of senior lawyers, leaving legal aid recipients in the hands of inexperienced lawyers.

Stephen Hung Wan-shun, chairman of the Law Society's criminal law and procedures committee, welcomed the government's decision. But he said his group was against officials' proposal to let the Director of Legal Aid have the final say in cases where lawyers disagreed with the department on fees.

'How can you give the head of a department the power to judge whether his subordinates have made a fair decision on payments for lawyers? The power must be in the hands of an independent body,' Mr Hung said. His group proposed that the task be dealt with by the tribunal  that currently handles legal aid applicants' complaints, which comprises the Registrar and Bar and Law Society representatives.

'We also have to make sure that a commitment to pay for our pretrial work will not imply that other areas of the legal aid system will be cut. There must be an overall increase in resources,' Mr Hung said.

The next step would be to fight for an increase in the daily fees for solicitors handling criminal legal aid proceedings.

The Post reported in October that some lawyers were considering boycotting legal aid cases after years of appeals for pretrial fees had  been ignored.

Under the Legal Aid in Criminal Cases Rules, a solicitor taking a legal aid case in the Court of First Instance is paid HK$6,790 on the first day of the trial, and between HK$830 and HK$4,420 for each subsequent day.

A solicitor handling a District Court case is paid HK$4,840 on the first day, and between HK$1,160 and HK$2,900 for each subsequent day.

The rates are  much lower than market rates, which are normally between HK$3,000 and HK$4,000 for veteran solicitors.

Solicitors and counsel are not paid for their time on pretrial work, which often covers reading voluminous documents, holding conferences and visiting defendants in prison.

In one of the more extreme examples submitted to the department by the Law Society, a solicitor was recently paid 50 HK cents an hour for the time he had put in working on a legal aid case.

The department argued the fee system for legal aid lawyers was on a par with that for the prosecution. However, solicitor Michael Vidler, who handles many legal aid cases, noted that  legal aid lawyers had to do all preparations for the trial themselves, while the work for prosecuting lawyers was carried out by police and staff of the Department of Justice.

Outgoing Bar chairman Philip Dykes, who made the fee the subject of his speech at the opening of the legal year in 2005, wrote in the Bar's newsletter this month:  'The revised rules should reflect the fact that courts, particularly appellate courts, have developed a seemingly insatiable appetite for forensic paper and that counsel should be rewarded for time spent bent over a word processor as well as for time spent in court.'

The department refused to give details of the review on lawyers' fees, saying discussions were continuing.



Breakthrough on legal aid payments