Practical Issues When Acting for a Legally Aided Client
Successful legal aid practice requires that you keep track of the aid that has been committed for the case, and apply in good time for the extensions you need. If you fail to do this, you may find that you have exceeded the grant and will not be paid for your work.
Appreciating the limit of the initial grant
Requesting an extension
Certification of approved extensions
Extra funding for unusual cases
Aid for appeals
Fee remission certificates
Court awarded costs
Review of decisions
Sending your accounts
Your initial grant of aid is limited. In a criminal matter, aid is initially granted as if for a guilty plea only, regardless of whether your client has yet entered any plea. If your client has a meritorious defence to the charge(s), you will need to request an extension of aid for this purpose. You should supply the allegations, declarations, witness statements, your client's written instructions and an outline of the defence.
Likewise, in a family matter, aid is normally granted as a composite fee to take the matter up to final directions and conclusion of the initial application, then another stage for attendances up to the trial notice list hearing, and if not settled (PDR, conferencing, negotiation) to prepare for trial and finally the trial itself A report and extension is required for each of these stages.
To obtain an extension, you will need to write a letter of report to the Commission, including a specific request for an extension of aid. This letter need not be voluminous. It should simply detail the ongoing merits of the case, including any prospects of resolution, and the work for which you now need aid. Please note that if you are requesting an extension which will take aid over the amount set for the purposes of applying a statutory charge, and your client or their financially associated person has an interest in real estate, we require a signed consent form before the extension can be granted.
For each extension granted, you will be sent a further certificate of commitment, which will show exactly how much has been allocated. The bottom of this invoice is also the tax invoice, to be used when claiming fees for the assignment. Commitment is expressed as GST exclusive. While your collection of certificates will indicate the total amount of expenditure we have authorised, details of how we have authorised that sum to be applied are usually given in the letter granting the extension of aid.
Sometimes, we may ask for more information or copies of documents before we make a decision about extension of aid. This is because we must be satisfied before granting any extension that your client remains eligible for aid. The matter must continue to have merit and to meet our current guidelines.
Occasionally there will be a case which requires more than the usual amount of work - where the degree of preparation or the difficulty involved is exceptional and the work encompassed by the standard lump sums would, in all of the circumstances, be unreasonable. Write to us as soon as this becomes apparent to you, identifying the additional work, in hours if possible, and ask for the funding you need. You cannot undertake the work on the assumption that the grant will cover it, because we will not pay for any work we have not authorised. If you clarify the position first, there is less likely to be a dispute later.
Aid will only be granted for meritorious appeals that fall within guidelines. We will usually need a copy of the judgment and written confirmation of counsel's opinion as to the grounds of appeal and prospects of success. Where arguments of law are relied on, please refer to relevant cases.
We will process your request for aid for an appeal as quickly as possible, but it is your responsibility to lodge an appeal within time, if so instructed, regardless of the legal aid position. If you are not able to act, whether because aid has not been granted for appeal or for any other reason, your client should lodge their own appeal, within time, rather than waiting. Please make this clear to them.
If your client has legal aid, some courts, tribunals, departments and public hospitals will remit their usual fees and charges for such items as lodgment of initiating processes, transcript, extracts of records, etc. Ask the grants officer concerned for a fee remission certificate. We can fax them if urgent to meet a time limit. Please note that where transcription is outsourced to private providers, certificates are normally not accepted.
Costs awarded against an assisted person
Costs orders can be made against an assisted person just as they can against any other person. The court may not take their assisted status into account (s.20(1) Legal Services Commission Act 1977 (SA)).The Commission has no statutory authority to pay any costs awarded against your client, and does not do so.
Applying for party/party costs
If in your view proper reasons exist for your client to apply for costs in a matter, you should normally do so. The amount you apply for need not be confined to the amount of fees and disbursements committed to the case by the Commission. If you think a greater award is appropriate, you should apply for it. If successful, you need only pay back to the Commission the net amount of fees and disbursements authorised to be paid out on the file. You may retain the balance, subject to your client's instructions.
Where costs orders are made in favour of an assisted person, the Commission is subrogated to the person's rights under the order, and any costs recovered are to be paid to the Commission, not the client (s.20(2)). You should ask your client to authorise the court to pay any costs awards directly to the Commission.
The right of appeal, created by s.17 of the Legal Services Commission Act 1977 (SA), is available not only when aid is initially refused, as above, but also in respect of all decisions made on the file, such as decisions not to extend aid for a particular purpose, decisions to terminate aid, to disallow all or part of an account, to take a statutory charge, to assess a particular contribution, etc.
At the bottom half of the Certificates of Commitment are the tax invoices. These should simply be signed and returned to us once the work authorised has been completed. We will not pay for any work not authorised by a certificate of commitment. If the matter is resolved for less than the amount of commitment certified, you should amend the certificate/tax invoice accordingly.
We do not pay for such items as travelling time, postage, faxes or 'petties'. We will pay for necessary photocopying, and will allow for this in the certificate if you let us know in requesting your extension what is required.
We pay bills by way of a bulk cheque to your firm each month, not individually as they come in. You will however receive notification of the amount paid on each account, and if items have been disallowed, a short explanation. You have a right of appeal against our certification if you disagree with it. You should write to the grnats
officer concerned, who will arrange for the matter to be placed before Commissioners at their meeting.
For more information about payment of accounts, see Payment for Legal Aid Work.
The Commission may contact your firm giving you notice that a file or files should be forwarded to the Commission for review. The Commission will be checking to ensure such matters as client instructions are on the file and confirmation that claimed Court attendances took place. We may also be asking to see a file where there has been a request for an unusually high cost extension. Requests for files will not be targeting any particular firm or practitioner, unless the Commission has any specific issues requiring its further attention.