elligible for legal aid but seeking private counsel anyway?

Situation

1. Client is eligible for legal aid. Unemployed and no assets to their name, but they come to you as private criminal proceeds counsel anyway. 

2. Barrister can see the client will not be able to afford private fees for the length of the litigation and tells the client so. Barrister explains the risk of adverse cost orders and how legal aid may assist to minimize the client's liability to pay adverse costs personally, if they are unsuccessful in court.  

3. Barrister sends client a legal aid application form and the names of some legal aid barristers they rate.

4. Client is offended and screws up legal aid application form and says "NAH, I WANT YOU". 

5. Client is able to pay the first few invoices of about $10,000 plus GST or less. (a very basic matter). The client begins to voice concern and disgust about basic private counsel fees and their ability to meet further legal fees in the next few months. To be clear, a fee of $10,000 would be the bare minimum for private counsel. 

6. About 9 months later, 3 months out from the hearing date, Barrister sends an updating and advisory letter to the client regarding legal fees for the restraint/forfeiture hearing and the potential for adverse cost orders if unsuccessful. A standard reminder is sent to the client regarding the fact that there are no guarantees in litigation as to result. 

7. Client responds and suddenly says they want a legal aid barrister and reminds the  Barrister, "I'M ELLIGBLE FOR LEGAL AID REMEMBER". 

This is a frustrating and preventable scenario. 

If you are reading this post and you are a potential client who is eligible for legal aid; I ask that you consider your litigation budget now. Not in a few months time. Now. If a basic adverse costs order of $10,000 was made against you and you had to pay that in 30 days: could you do this? If you don't have the cash available yourself, what is your ability to pay this amount using the lending facilities you can access, and family and friend contributions?

I then ask you to consider if you could pay both the adverse cost order of $10,000, plus legal fees of $15,000 (arbitrary amount for example purposes). Could you pay both these amounts in 30 days? 

It is very common for clients who are eligible for legal aid (but choose to engage private counsel) to say that they, "will find the money somehow". Somehow, somewhere, someway, is not a plan. As I tell all clients, I am here to assist you with defending your property and having it released. I do not want to become another stress and unpaid creditor in your life. You need sustainable counsel in criminal proceeds matters i.e. counsel whose fees are manageable for you for at least 12 to 18 months. You need to be aware that some proceeds matters can be in the courts for more than 3 years, and some more than 5 years. 

So, while I would like to help everyone that wants me to help them. The reality is I am private counsel. That means my clients are able to fund litigation (my legal fees and disbursements) and they are comfortable with the risk of paying an adverse cost order in the High Court. If that is not you, then you are in the majority of clients. This is precisely why we have legal aid, and why you have a right to access legal aid counsel if you are eligible. I have no interest in becoming legal aid counsel. I have an allergy to bureaucracy and red tape; when this changes, I will do legal aid. 

All is not lost, in fact far from it. I have a list of criminal proceeds senior barristers who are approved to provide legal aid. Let's refer you to them at the start of the matter to avoid unnecessary stress and burden to both of us.  

All barristers I work with in criminal proceeds are reasonably flexible with our charging practices (apart from one to date). Let's talk money at the start of the matter.

CPDG