Publication in pdf format - FLAC

flac News | Vol. 23, No. 2
Gauging ‘reasonable behaviour’
in the civil legal aid system
Access to justice is a fundamental would apply to the relationship between exhaustive; unreasonable behaviour can
human right enshrined in a private solicitor and client. If successful also be interpreted by the law centre and
Article 6 of the european in these tests, the person receives a legal solicitor involved with the legal aid
Convention of Human Rights Act aid certificate and can get the legal aid client.)
(eCHR) 2003. States have a duty to that they need to represent them in
No-one is standing up for client
ensure that citizens have a right to access court.
behaviour which is abusive and
justice. There are numerous con -
However, difficulties can arise in any destructive such as the examples given
sequences flowing from that right such as
client/solicitor relationship, whether above. It clearly would not be proper to
the right of appeal, right to an effective
state or private. Within the civil legal aid require a solicitor to suffer abuse or
remedy and right to a fair hearing.
guidelines and legislation, clients of the assault and to continue with the client
In Ireland, legal aid in civil matters is
provided by the state-run legal Aid
legal Aid Board and its law Centres are
expected to behave reasonably. If the
regardless. Solicitors are entitled to
protection from such behaviour.
Board. It was set up in part due to client is deemed to behave unreasonably,
lobbying efforts by FlAC and others for the legal certificate can be withdrawn. In
However, termination of a person’s legal
the advancement of marginalised and that case, the client is not only deprived
aid certificate on “unreasonable
disadvantaged groups’ right to access of legal aid from the law centre where
behaviour” grounds is a decision that has
justice. A primary catalyst was Josie the difficulty arose, but is deprived of
real and harsh consequences for the
Airey’s case against the State where the access to the entire network of legal Aid
legally aided person and directly impacts
european Court of Human Rights Board law Centres and therefore of
on his or her right to access justice. The
concluded that a right of access to the access to state-funded legal aid. This is
competing rights and obligations must be
courts must be real and effective rather substantially different to a person who is
carefully balanced.
than theoretical or illusory. The Civil engaging a private solicitor. The person If a person’s legal aid certificate is in
legal Aid Scheme was put on a statutory using a private law firm can switch to jeopardy due to “unreasonable
footing in 1995 “to make provision for
the grant by the State of legal aid and
another firm when problems arise and
thus continue to have the support of a
behaviour”, he or she must be given
proper opportunities for appeal and
advice to persons of insufficient means in lawyer through the court case. The review. A person warned that his or her
civil cases”.
person on legal aid was deemed to legal aid certificate is at risk may wish to
qualify on merit, but is left without legal seek a review. It may be that a discussion
To assess a person’s eligibility for legal
assistance to vindicate his or her rights. on the behaviour in question can clear
aid in Ireland, he or she has to pass a
means and merits test and agree to much The legal Aid Board may withdraw a
the air and there may be an adjustment
the same terms and conditions that legal aid certificate where it considers
of the conditions attached to the legal aid
that it is ‘reasonable’ to do so.
certificate. If any adjustment is proposed,
Regulations made under the Civil legal
it is important that the client have a
Donegal law students Aid Act 1995 specifically provide that the
proper opportunity to consider and
Board may terminate a certificate where
understand the proposed adjustments.
it considers that the legally aided person
Where a review does not result in any
is behaving unreasonably in connection
change of attitude by the law Centre,
with the conduct of the proceedings.
then an appeal can be lodged with the
However, what is unreasonable
legal Aid Board’s Appeal Committee.
behaviour is not set out in those
However it is important to note that
regulations. The legal Aid Board has
there is a time limit of one month from
drawn up guidelines on what they
the time of the issue arising. The appeal
perceive as unreasonable behaviour that
must argue on issues of “unreasonable
might lead to the termination of legal
behaviour” by addressing the claim
services based on their experiences in
clearly and providing any further
At the official launch of letterkenny law Centres in the past. Such
supporting information.
institute of Technology Student legal
Information Clinic in April 2013: l-R:
Sharon Mclaughlin Ph.D, lYIT
Assistant lecturer in law; Zsé
Varga, FlAC Volunteer & Centres
Manager and Dr. lynn Ramsey, Head
unreasonable behaviour can encompass
the threat of or actual physical assault,
threat of or actual self harm (whether
active or passive), surveillance/stalking,
abuse, obscene language and/or gestures,
inappropriate behaviour of a personal
In all cases where legal aid has been
initially granted, the State will have taken
serious consideration of the client’s legal
need and the client will have been
certified as needing and deserving legal
aid. Therefore, in the interests of access
of Department of law & Humanities. nature, malicious or vexatious to justice and the rights of poor people
complaints made by clients, and clients to a fair hearing, any revocation of legal
All at FlAC HQ wish lYIT the best who cause difficulties regarding aid must be done with at least the same
of luck with its new venture!
instructions. (This list of what constitutes level of regard for the client’s rights as
unreasonable behaviour is not was the case in the initial decision.
© Photo by Clive Wasson