2nd European Forum on

Access to Justice

24-26 February 2005 Budapest, Hungary

PRELIMINARY

FORUM REPORT

With the support of:

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Copyright © 2005 by Public Interest Law Initiative/Columbia University Kht and Open Society Institute.

All rights reserved. Parts of this report may be quoted or distributed as long as the Open Society Justice Initiative and the Public Interest Law Initiative are duly acknowledged as the source. No part of this publication may be reproduced or transmitted for commercial purposes without permission in writing from the Open Society Justice Initiative and the Public Interest Law Initiative.

This publication has been produced with the assistance of the European Union. The content of this publication is the sole responsibility of the Open Society Justice Initiative and the Public Interest Law Initiative and can in no way be taken to reflect the views of the European Union.

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TABLE OF CONTENTS

About the Report iii

Welcoming Remarks 1 Panel I. European and International Standards on Access to Justice: Recent Developments 5 Panel II. From Theory to Implementation: Reforming Legal Aid in Central and Eastern Europe 10 Panel III. Selected Approaches to Promoting Legal Aid Reform 16 Panel IV. Recent Developments in Selected Countries 20 Panel V. Legal Aid Provision in Non-criminal Matters 28 Breakout Group 1. Legal Aid Policy-making and Management 35 Breakout Group 2. Models of Criminal Legal Aid Delivery: Public Defenders, Judicare/Ex Officio, Contracts 39 Breakout Group 3. Paralegals and Non-traditional Methods of Legal Aid Delivery 42 Breakout Group 4. Monitoring and Research on Performance of Legal Aid Institutions 46 Closing Session 49

About the Organizers 50

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About the Report:

The Second European Forum on Access to Justice was organized by the Open Society Justice Initiative and the Public Interest Law Initiative, and took place in Budapest, Hungary, on February 24-26, 2005. The Forum brought together approximately 200 legal professionals, rights advocates, representatives of international institutions, and government officials from 40 countries to discuss strategies for improving access to justice in Europe and beyond. The presentations expanded on the themes of the first European Forum on Access to Justice, held in 2002, and covered a wide range of regional and country-specific efforts to expand access to justice for the indigent. They included discussions of ongoing legal aid reforms in Europe and beyond, developments in international legal aid standards, and civil society and government initiatives to put these standards into practice.

The Preliminary Forum Report presents a narrative summary of the proceedings of the Forum. The Report was produced by the Public Interest Law Initiative and the Open Society Justice Initiative, based on the notes of rapporteurs at each session. Any errors, inaccuracies, or omissions are our own.

iii 2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Welcoming Remarks

Edwin Rekosh Executive Director, Public Interest Law Initiative Edit Juhasz, Head of the Department for Justice, Administration and Codification, Ministry of Justice, Hungary Alexey Kojemiakov Head of the Private Law Department, Directorate General I (Legal Affairs), Council of Europe Zaza Namoradze Director, Budapest Office, Open Society Justice Initiative

In his opening remarks, Edwin Rekosh Czech Republic, Slovakia, Romania, reflected on the changes that had occurred Moldova, Georgia, Kyrgyzstan, Mongolia, in the field of legal aid since the first and China – where the reforms have taken European Forum was held in December, on a remarkable scale. And very recently, 2002. That year’s conference brought in a case that has received significant together 100 individuals from about 25 publicity, the European Court of Human countries. The growth in size and scope of Rights found that the United Kingdom the Forum’s program in 2005, with 200 had committed a violation by refusing to participants from approximately 40 provide legal aid in a case in which two countries now participating, indicated, activists were defending themselves according to Mr. Rekosh, the profound against defamation charges brought by changes that have been occurring in the McDonald’s. field of access to justice, and the rapidly accelerating pace of law reform around Both the Public Interest Law Initiative the world. (PILI) and the Open Society Justice Initiative (Justice Initiative) have been The agenda of the present forum aimed to very actively encouraging these kinds of update participants on changes in changes, and the organizers were pleased countries that were the focus of the first to be able to bring together such a diverse Forum, such as Lithuania, where reforms and active group of participants to have steadily continued; Bulgaria, which compare notes and continue to make has recently seen some dramatic reforms; progress in further reforms. and Poland, where a new legal aid law was submitted to the parliament in the days immediately preceding the Forum. * * * Some legal reforms have also taken place in the last two years in a number of other countries, including Estonia, Latvia, the

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Speaking on behalf of the Hungarian by dedicating budgetary resources to legal Ministry of Justice, Edit Juhasz discussed aid, the reforms not only promote the the details of the recent judicial reform in stability of the legal aid system, but also Hungary, the development of which was a establish access to justice as a topic at the 2002 Forum, and as a result of governmental priority on a level similar to which a new law on legal aid was that of social security or education. ultimately adopted in 2003. In addition to creating new forms of legal aid and However, Ms. Juhasz noted, there are reforming existing institutions, the biggest many more challenges that lawmakers achievement of the new law was to define will need to address in the future, such as legal aid as a state service that operates improving the predictability of the consistently in all judicial fields. system, incorporating efficient financial planning and management of funds, and The law addresses legal assistance in three implementing effective quality control. main areas. First, it introduces a new The goal of establishing a comprehensive system of legal assistance in extra-judicial legal aid system that will assure matters. This service, in operation since individuals the most rapid, affordable, 2004, provides a way for the indigent to professional, and definitive resolution of get basic legal information on everyday disputes possible is a project that will take questions and helps individuals many years. The most immediate tasks determine, for example, which agency or Hungary faces include fulfilling its ministry to turn to, and where to get obligation under the EU to provide legal further legal assistance if necessary. The aid in cross-border disputes, as well as second area of reform is in civil legal undertaking reforms in perhaps the most disputes, and essentially consists of typical access to justice sphere, legal aid making available various reductions in for criminal defense. fees for the parties as well as state-paid legal representation. Third, the law makes In closing, Ms. Juhasz extended greetings changes in the criminal law sphere, from the Hungarian Minister of Justice, reforming various elements of the existing Mr. Jozsef Petretei and the administrative system of representation for injured state secretary, Mr. Ferenc Kondorosi, and parties in criminal cases. Both the civil and expressed the hope that the lessons criminal legal aid reforms will come into learned in the course of Hungary’s reform effect in 2006. Legal aid services will will be useful to participants from other involve two main actors: a network of countries, and will help draw attention to legal aid offices, which will determine the social and political benefits of clients’ eligibility, direct them to the improving access to justice. appropriate service provider, and take care of lawyers’ remuneration; and the lawyers and organizations under contract * * * with the state to provide substantive legal assistance. Alexey Kojemiakov of the Council of The most tangible effect of the reforms Europe began his welcoming remarks by will be to make it possible for more people noting that the Forum provides an to get legal aid in more ways and in a opportunity to thoroughly discuss the broader range of legal matters. By this international issue of access to justice, and means, the Hungarian government hopes come to a clear vision on how best to to have taken a meaningful step toward ensure that the principle is upheld in mitigating social inequality, and practice. Access to justice is a priority for promoting equal opportunity. Secondly, the Council of Europe – bilateral

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cooperation and activities promoting legislation to facilitate the transition. Most access to justice are part of the Council’s of these cooperation activities are focused daily work. Improving legal aid presumes on Eastern European countries. cooperation among governments in a Recognizing the need for an number of areas: increasing the individualized approach to each country, independence of the judiciary, developing Mr. Kojemiakov noted that the the capacity of professionals, and discussions and conclusions of the Forum improving the quality of services would be helpful in the Council’s effort to provided. At the intergovernmental level, develop a common model. work in these areas has also intensified, especially in the last decade since the * * * expansion of the Council of Europe.

Working in this field requires asking a Zaza Namoradze extended a welcome somewhat provocative question: How can from the Open Society Justice Initiative. the quality and efficient implementation As the Justice Initiative’s mission is to of justice be measured? To begin to pursue law reforms grounded in human answer his question, Mr. Kojemiakov rights, Mr. Namoradze remarked that it pointed to the recently completed was exciting to observe that the right to European Judicial Systems 2002 report. legal aid is receiving more recognition, This report, produced by the European and that reforms are giving real substance Commission on the Efficiency of Justice to this right. The goal of the Forum was to (CEPEJ), is the first ever large-scale highlight recent legal developments and evaluation of European judicial systems. the strategies for their implementation. Though the report would not be presented There are consequences for particular officially to professionals and media until choices made under different policies, and later in 2005, Mr. Kojemiakov drew it is hoped that the Forum would also help participants’ attention to a section on focus attention on the social, political, and access to justice issues which was made financial consequences of policies. available at the Forum. The report shows substantial differences between countries One of the Justice Initiative’s major areas with respect to the degree to which states of work is to promote understanding, finance legal aid. adoption, and implementation of institutions that organize, manage, and The starting point for improving access to deliver legal aid. One project that the justice is to establish a coordinated and Justice Initiative has conducted with the coherent legal aid system. However, many Lithuanian government aimed to reform countries lack standards on legal aid the legal aid system, including through when they join the Council of Europe, and the establishment of two pilot public time is needed for countries to satisfy their defender offices. Just recently, in January obligations under the European 2005, the Lithuanian Seimas (Parliament) Convention on Human Rights and adopted a comprehensive law on legal Fundamental Freedoms, including the aid. Other Justice Initiative tasks have jurisprudence of the European Court of involved supporting the legal reform Human Rights. The Council is developing work of the governments of Bulgaria and systems for new members to share Mongolia, and the Justice Initiative is also information with other European states, active in a number of other countries such and is working with local and as Kyrgyzstan, Georgia, Moldova, international donor organizations, Nigeria, and Turkey. In addition, the including the Justice Initiative, to develop Justice Initiative has focused on projects interim measures, pilot projects, and that promote local solutions for access to

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justice, such as a project which established five paralegal advice centers in Sierra Naturally there are ongoing questions. Leone using community-based paralegals; How do we successfully advocate to similar efforts are underway in Mongolia governments and policy makers that and Cambodia as well. establishing legal aid management institutions is not about bigger The Justice Initiative has drawn a number bureaucracies but about increased of lessons from its work on legal aid efficiency? How do we ensure that legal reform. For one thing, asking for more aid in criminal matters is focused on money and proposing the establishment clients’ interests and provided in a holistic of new institutions for managing legal aid manner? How can we achieve adequate is never politically attractive, and may recognition by governments of the face opposition from the private bar and individual and societal benefits of other actors in the field. In these accessible, high-quality legal services? circumstances, it may be impossible to Given the fact that it is not feasible to adopt and implement a full-fledged legal cover free legal assistance in all civil aid system, due to a lack of capacity and disputes from public funds, how can we of financial means. Thus, it is better to guarantee that access to justice is ensured develop a legal aid management system to individuals of modest means in civil with fewer pre-set rules and as much matters? Is there a need to improve flexibility as possible, in order to allow for international standards on legal aid? How experimentation and modification within should we promote more effective budgetary and organizational constraints. implementation of existing standards? Mr. Many of the presentations during the Namoradze expressed his hope that these Forum provided good examples of how questions and others would generate more established systems have adjusted productive discussions in breakout dynamically to political and legal realities, groups during the Forum, and wished in order to improve legal aid management participants an interesting, fruitful, and and delivery standards. intellectually challenging meeting.

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Panel I. European and International Standards on Access to Justice – Recent Developments

Developments on standards and jurisprudence on access to justice and legal aid since 2002, globally and in the Council of Europe. Borislav Petranov Program Officer, Human Rights and Justice, Ford Foundation, Moscow Impending developments in the field of access to justice in civil and commercial matters, with special reference to private international law. Robert Bray Principal Administrator, European Parliament Moderator: Karoly Bard, Professor, Central European University

This panel discussed recent international and European developments in case law and standard-setting, examining the impact of the changes on questions of access to justice.

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Borislav Petranov began his presentation ever having seen a lawyer. Individuals on international standards by whose cases did not trigger mandatory acknowledging that there is always a defense were not getting legal aid at all. question of whether international The system of appointment of counsel was standards are relevant to cases going seriously dysfunctional in many countries, through courts on a day to day basis. How often riddled with cronyism, leaving does the case law of the European Court defendants hostage to chance. Some of Human Rights (ECtHR) address countries had no system at all. Means specific problems of legal aid in European testing was in its infancy, legal aid in pre- countries? trial phases was patchy, and management of legal systems was largely non-existent – Research done in preparation for the first no-one knew how much money was being Forum on Access to Justice in Central in spent, or how many cases were being Eastern European Countries in 2002 supported. Also, the scope of legal aid in documented a number of problems with civil cases was extremely limited. regard to legal aid. A very large number of defendants were falling out of the These problems have been confirmed by system, and serving sentences without several other investigations since. An

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additional point that has come to light is The court has increasingly been that initial legal advice has been a looking into how courts operate, in particular point of weakness. Once an order to exclude arbitrariness. individual is facing an actual court procedure he or she might be appointed a There are two ways to bring ECtHR case lawyer, but the system of getting initial law to bear on systemic issues. First, there advice is practically non-existent. is the control that the Committee of Ministers exercises over a judgment. Once How have these problems been addressed a judgment becomes final, there is a by the European Court of Human Rights? debate between the Committee and the ECtHR case law has broached a number of government regarding what measures to access to justice issues: take to avoid future harm. There are • The right to legal aid (Article 6 of several recent examples (such as in the Convention). Ireland and the UK) in which • The right to an effective remedy. governments have changed national laws • Exhaustion of domestic remedies. following ECtHR judgments. Second, Specifically, the case law remains there is the friendly settlement procedure, open question as to what the as in Faulkner v. United Kingdom, for obligation to exhaust domestic example, in which the case did not go to remedies means for a person who judgment, but as part of the settlement the does not have an attorney. There UK government agreed to implement a are some cases pending on this legal aid system in Guernsey. point, but nothing has been resolved as of yet. The Court has developed the fair trial • Non-discrimination in procedure. principle in civil cases in two In some countries, procedures and circumstances. The first is when access to rules operate to exclude some the court is at issue. The second relates to sections of the population from the equality of arms principle, to prevent a legal aid: residency requirements, situation where a huge disparity between or requirements to possess certain litigating parties would make a trial documents (such as the propiska manifestly unfair. As regards the quality [residence permit] in the Russian of legal aid systems, the Court’s practice is Federation). very superficial. The Court has basically • Absence of arbitrariness in deferred to the judgment of national operation of the legal aid system. authorities on this point, and is very

The Forum brought together approximately 200 participants from 40 countries.

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reluctant to impose standards of practice In the 2003 case of Bertuzzi v. France, a on a state’s lawyers. prospective litigant was granted legal aid but was unable to actually obtain a lawyer There are several new cases of note with after a series of appointed attorneys regard to legal aid. First is the McDonald’s withdrew from the case because of their libel case (Steele and Morris v. the United connections to the opposing party (also an Kingdom), just decided in January 2005. attorney). The Court unanimously found a The Court unanimously found a violation violation of Article 6.1, determining that of the Convention’s guarantee of the right the applicant was denied effective access to a fair trial. However, the judgment is to a court. The Court’s decision not yet final and could be appealed, and it emphasizes the importance of creating a reverses a long-standing line of legal aid system so that litigants can jurisprudence that legal aid is not actually get a lawyer who is prepared to necessary in defamation cases, because act for them. there are other ways to achieve equality of arms in the English system. However, In conclusion, Mr. Petranov focused on there was an exceptional areas where there is disparity of means and scope for development opportunities between European Court rulings of standards in the the litigants here. emphasize the importance ECtHR. First, we may McDonald’s spent about of creating legal aid systems see some enlargement of £10 million on the case, so that litigants can actually the scope of cases in while the applicants get a lawyer who is which legal aid is spent about £40,000; the necessary, the primary applicants’ income was prepared to act for them. example being in about $200 a week, criminal cases where versus about $30 billion annually for detention is at issue. For example, the UK McDonald’s. Because the case was so recently settled the case of Broadhurst v. unusual, Mr. Petranov cautioned, it may The United Kingdom, in which an be best not to make too much out of it. individual without representation was However, it does show that abrupt detained for a few days. The fact that the changes are possible – suddenly the Court UK settled could suggest that the case law found legal aid to be a requirement in is moving in the direction of affirming cases where it had clearly not been that legal aid should be provided when an required previously. applicant faces even brief imprisonment.

Another recent case, Santambrogio v. Italy, The second potential area for from September, 2004, addresses the issue development in ECtHR case law is in the of means testing. An individual denied prevention of discrimination and legal aid in a divorce case contested the arbitrariness in decisions on legal aid. For means test, but the Court found no governments in Central and Eastern violation of the Convention, determining Europe, the questions that are bound to that the applicant had means at his arise in legal aid in civil cases have to do disposal to pay for representation in the with the scope of legal aid, the operation proceedings. The ECtHR’s decision in of courts, and the prevention of Santambrogio demonstrates a reluctance on discrimination and arbitrariness. In the part of the Court to control in detail general, the related cases all send the how a means test operates, unless it is message to be flexible: Mr. Petranov noted arbitrary or discriminatory. that while he might hesitate to use the word “discretion”, the rules should be flexible enough so that in certain cases

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legal aid could be granted to respond to permit uniformity of result. Lastly, courts specific circumstances. may rely on the principle of protection of expectations – i.e., what law would the parties have thought would apply? This is * * * approach is typical of the UK, but the drafters have received a lot of positive observations from judges in the other Robert Bray of the European Parliament member states on this solution. focused his remarks on developments in international standards in civil and The instrument currently being drafted in commercial matters, with emphasis on the European Parliament also deals with private international law matters in which the question of damages. The actual courts have to apply foreign law to the damage or loss will be determined elements of the case before them. The according to the applicable law, but there European Parliament is currently may be some question regarding the developing a proposal for regulation of quantum of damages. For example, the law applicable to non-contractual suppose there is a traffic accident obligations. The creation of European involving a person from a wealthy Union rules to define which law applies in country in a foreign country, where the international disputes will facilitate access standard of living is very low, and the to justice for parties involved in such victim requires intense, ongoing care. It disputes. seems inequitable to apply the standards of the country with the lower standard of In developing the proposal, the drafters living. have read laws on private international law from a variety of jurisdictions, such as Lastly, Mr. Bray mentioned another Switzerland, Belgium, and the United interesting provision contemplated in the States, and have seen that often the best proposal, a public policy exemption by way to achieve justice is to give a lot of which a court would not have to apply discretion to judges. It is a very Anglo- foreign law when it is incompatible with Saxon idea, and has met with some public policy. resistance from European governments.

In many cases involving private * * * international law, the parties are already in a relationship. The first thing to look for, then, is autonomy of the parties. In the Discussion absence of an explicit agreement, the applicable law is that of the location In the discussion on the developing case where the harm occurs, but courts still law of the European Court, there was have discretion within that rule. If the agreement that the case law is tending to matter is more closely connected with the enlarge the scope of cases in which legal law of a different country, then that law aid is required. One participant drew should apply. Also, if the parties are both attention to the notion of the “interests of habitually resident in a particular country, justice” included in Article 6.3(c) of the they should have the opportunity to use European Convention on Human Rights, that law. Second, where there is a pre- which allows the Court to consider existing relationship in the form of a whether the “interests of justice” require contract, the law that applies to the the provision of legal aid. This notion contract should also apply in the non- allows courts to consider such things as contractual relationship. The goal is to the gravity of the offense, the seriousness

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of the potential sentence, the complexity domestic – calls for a concerted effort to of the case, and the personal situation of make sure that the relevant institutions the individual accused. send consistent messages. Also, careful attention must be paid to how the judicial On the issue of international standards on community and the Bar explain legal aid, some discussion concerned international standards. There needs to be problems related to the implementation of an understanding of the actual barriers to international standards in member states, implementation in local courts – for and particularly among new members. Is example, if there is no support or ten years sufficiently long to expect structure for implementation. national courts to have understand international standards sufficiently to With regards to the European Union’s ensure direct application in domestic proposed Framework Decision on Certain proceedings? International standards are Procedural Rights in Criminal still interpreted and perceived in Proceedings, participants raised the contradictory ways in the academic concern that while it is important to have community, among professors training standards elaborated in writing, future judges, and among judges implementation and monitoring are also themselves, even on a high level. part of the equation. Though methods of monitoring do currently exist, they are not The superimposition of many different strong enough. standards – EU, Council of Europe, and

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Panel II. From Theory to Implementation: Reforming Legal Aid in Central and Eastern Europe

The goals and processes of institutional legal aid reform in Lithuania. Paulius Koverovas State Secretary of the Ministry of Justice, Lithuania Efforts to reform the legal aid system in Bulgaria. Miglena Tacheva Deputy Minister, Ministry of Justice, Bulgaria Martin Gramatikov Law Program Coordinator, Open Society Institute-Sofia, Bulgaria Overview of legal aid reform in Hungary. Hungarian Helsinki Committee’s advocacy strategy for reforming the criminal legal aid system. Andras Kadar Program Coordinator, Hungarian Helsinki Committee, Hungary Moderator: Zaza Namoradze, Director, Budapest Office, Open Society Justice Initiative

The Forum’s second panel was devoted to “legal aid in action”. Presentations evaluated the progress of legal aid reforms implemented in the Central and Eastern European region, and included the perspective of both government officials and civil society representatives.

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The presentation by Paulius Koverovas secondary types. Primary legal aid focused on recent legal aid reforms in encompasses simpler forms of legal Lithuania. On January 20, 2005, the assistance such as provision of legal Lithuanian Seimas adopted a new legal information, consulting, and out-of court aid law, to come into effect on May 1, dispute settlement. Secondary legal aid 2005. The law was the culmination of a covers legal representation and related multi-year reform effort, carried out in activities in court proceedings. Under the close cooperation with the Open Society new law, primary legal aid may be Justice Initiative, aiming to improve access provided by legal professionals employed to justice for poorer members of society. by the municipality, or by attorneys or public institutions that have entered into Mr. Koverovas explained that the new law an agreement with the municipality. This classifies legal aid into primary and is a change from the previous system,

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under which only lawyers or lawyers’ provision. The new law creates a Council assistants who had an agreement with the for Coordination of State-Guaranteed municipality were permitted to provide Legal Aid, which Mr. Koverovas legal aid. Secondary legal aid is to be described as a collegial, advisory body provided in all cases by attorneys who operating on a voluntary basis and made have concluded agreements with the state up of representatives of institutions and legal aid services. associations working in legal aid provision or human rights protection. The Mr. Koverovas noted that a major change Council will review the work of legal aid under the new law will be the creation of providers and will have the ability to offer a system of legal aid offices administered proposals on improving legal aid, such as by the Ministry of Justice. Two public proposals on efficient use of funds, defender offices, changes to fee structure established in Siauliai in for participating 2000 and Vilnius in 2002 attorneys, and proposals in cooperation with the The new procedures in regarding acts Justice Initiative will be Lithuania aim at more implementing the new transformed into state efficient use of resources law. institutions, funded from to improve the quality of budget resources for legal services provided. Before concluding, Mr. aid provision, and Koverovas summarized renamed, respectively, as the goals of this recent the Siauliai and Vilnius State Guaranteed reform. First, the new procedures aim at Legal Aid Service. Three additional state more efficient use of resources, focusing legal aid services will be established in the on rendering legal services to those who cities of Kaunas, Panevezys, and Klaipeda, are in most need. Changes to the selection for a total of five legal aid service offices process and compensation structure for administered by the Ministry of Justice. attorneys are intended to improve the quality of services provided. In addition, The determination of eligibility for legal it is hoped that the reforms will aid will be simplified by the new law, strengthen management and coordination which does away with a complicated 5- of the system, ensure systematic data tiered eligibility system relying on collection on the functioning of legal aid cumbersome property and income institutions, and facilitate the declarations. These shall no longer be dissemination of information on legal aid required in order to receive primary legal to the public. Finally, Mr. Koverovas aid. In the case of secondary legal aid, added, the achievement of these goals will eligibility will be based on a two-level ensure that the Lithuanian state fulfills its determination, under which the result of constitutional and international the property and income declaration will obligations regarding equal access to determine whether individuals qualify for justice. 100 percent or 50 percent coverage of legal expenses. Certain vulnerable groups will be exempted from the declaration * * * requirement for secondary legal aid as well. The presentation given by Miglena The legal aid management system will be Tacheva, Deputy Minister of Justice of reorganized somewhat under the new Bulgaria, addressed the strategy and law, improving coordination among vision of the Ministry of Justice on legal institutions that participate in legal aid aid reform. In Bulgaria, legal aid reform

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has become an important part of the EU completed a Concept Paper elaborating accession process, as accession progress basic principles that should underlie the reports have highlighted the need to legal aid system in order to conform with enhance access to justice and streamline the European Convention on Human legal aid. Ms. Tacheva noted that various Rights, as well as with the requirements initiatives, including a 2001-2002 study by for EU accession, and outlining some the Bulgarian Helsinki Committee, have options for legal aid reform. been undertaken to determine the scope of the problem and help define solutions. A Draft Law on Legal Aid has been created, which Ms. Tacheva announced The various studies have defined a would soon be discussed in Parliament number of problems, including a high and which, if adopted, would put a new degree of exclusion from access to legal legal aid system in place by the beginning counsel. There is no specialized body to of 2006. The new law would grant legal administer legal aid, and there are no aid in civil, criminal, and administrative standard criteria for appointment of ex cases. A National Legal Aid Bureau will officio counsel or for quality control. There be established as an independent legal aid are also no standard criteria for evaluation body with an independent budget. The of applicants’ financial status. The state new law also outlines the scope of legal does not have an independent budget for aid, as well as procedures for granting legal aid, and information on the amount legal aid and for selecting providers, and or effectiveness of existing spending on introduces a mechanism for administering legal aid out of the general budget is reimbursement for services provided. inadequate. Another persistent problem is a lack of motivation on behalf of attorneys Ms. Tacheva concluded her presentation to participate in the legal aid system, with a reference to the Chinese saying which in turn affects the quality of aid that, “A journey of many miles begins that can be provided. with a single step.” With this reform, Ms. Tacheva believes Bulgaria has taken that In light of these findings, Ms. Tacheva first step, and hopes the new system will continued, the Bulgarian government continue to develop until the granting of adopted an official Strategy for Reform of legal aid becomes an integrated part of the Bulgarian Judiciary, as well as an everyday life. Action Plan for Implementation, expressing the government’s commitment to reform. Further, in mid-2004, a group of * * * academics, representatives of the Bar and of the Open Society Justice Initiative, and experts from the Ministry of Justice Martin Gramatikov presented the highlights of some of the research that has been done on the legal aid system currently in existence in Bulgaria, in which defense lawyers are appointed ex officio by law enforcement organs. For example, it has been demonstrated that 35 percent of individuals accused of a crime are not represented at the pre-trial stage, and 25 percent of defendants go through trial in the first instance court without a Bulgarian Deputy Minister of Justice Miglena lawyer. Other problems include Tacheva (left) addresses the Forum. inadequate funding and scattered

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responsibility for legal aid. There is a lack of standards for ex officio appointed counsel, and no direct link between Andras Kadar’s presentation dealt with performance and payment. With respect recent reforms that have been undertaken to legal aid funding, Mr. Gramatikov in an effort to improve the delivery and reiterated Ms. Tacheva’s point that legal quality of legal aid in Hungary. The new aid is currently financed out of the general civil legal aid law, commonly known as budget of the judiciary. The lack of the “People’s Attorney” law, modifies the specific line-item funding, creates a large existing system of legal aid in court possibility for ineffective spending. It is proceedings, establishes legal aid in more hoped that the proposed legal aid draft areas, and reforms the institutional law will address problems such as these. framework, establishing a Legal Aid Service with national and regional offices. Mr. Gramatikov also briefly discussed the ways in which civil society groups in Under the new law, legal aid in civil Bulgaria have been participating in the matters is available for indigent clients reform process. First, civil society groups who meet financial eligibility criteria. have been active in advocating for legal Certain groups of people (such as aid policy changes. Second, they have homeless individuals and asylum seekers) been involved in information-gathering are automatically entitled to legal aid with on problems in legal aid. costs borne by the state. This has involved Others may request legal research into prominent Bulgaria’s pilot Legal Aid aid, with costs either issues and the scope of Bureau project assesses borne by the state (for problems, and has also the real demand for legal those living below the helped to uncover the minimum pension level) hidden costs of the aid, and provides concrete or advanced by the state existing legal aid financial information to (for those earning above provision system. reveal the true costs. the minimum pension level but below the Another civil society contribution is the minimum wage). implementation of a pilot Legal Aid Bureau, which has provided a good Also, the law changed the system of legal picture of the benefits of an alternative aid providers. It is no longer a mandatory legal aid provision system. Mr. requirement that licensed attorneys take Gramatikov noted that the project has also on legal aid cases. Legal aid providers helped in assessing the real demand for contract with the Ministry of Justice on a legal aid, and has provided concrete voluntary basis. Clients apply to the Legal financial information to reveal the true Aid Office, which handles eligibility costs. By providing an easy break-down of testing and determines the number of the particular activities involved in its hours of legal assistance that will be work, the pilot Legal Aid Bureau has offered. The client can then select a lawyer facilitated a better understanding of from a list of participating lawyers needs, which in turn helps to formulate provided by the Ministry. Currently, the quality standards for legal aid. Finally, the list includes 303 law firms and private project creates valuable and important attorney’s offices (comprising momentum for change of the existing approximately 7,000 lawyers), 12 notaries system. public, six NGOs, and one law school legal clinic.

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Some changes have recently been made to language skills. The appointed lawyer legal aid in criminal cases as well. The must meet his or her client at the police 2003 Code of Criminal Procedure, which station within 90 minutes. Lawyers submit provides for legal aid in cases of monthly reports to the Model Legal Aid mandatory defense, increased the hourly Board – made up of Ministry and Bar fees for participating attorneys and did Association representatives, Hungarian away with a requirement that convicted Helsinki Committee members, practicing defendants repay the costs of their lawyers, and university professors – defense. However, Mr. Kadar pointed out, which serves as a supervisory authority, the ex officio system of appointment was provides quality control, and determines largely untouched by the most recent law appropriate payment for the lawyers. reform, and severe structural problems remain. For example, appointment of Although the Model Legal Aid Board defense counsel is made by the project is not yet completed, Mr. Kadar investigating authority, raising a troubling acknowledged that some lessons have conflict of interest already been learned which may hamper from the 131 cases effective legal Investigators and prosecutors taken thus far. Some assistance. Individual in Hungary and Bulgaria are problems have quality assurance is gradually beginning to accept occurred in practice, provided only the idea that solid defense such as varying degrees indirectly through the representation serves the of cooperation from disciplinary powers of police authorities, and the Bar, but even this is interests of justice. the discovery of ineffective as the Bar unlawful interpretation does not receive information on of the Code of Criminal Procedure on the individual cases. There is no system for part of the police. Also, the early general systemic quality control – no data experience of the program has revealed collection on the work of ex officio lawyers, some weaknesses in the pilot project. It and no statistics on the numbers of cases requires a great deal of administration, or how much they are paid, for example. which is time consuming and expensive. Financial management is also problematic One possible solution would be to set up a as the budget for legal aid is spread lump-sum payment system based on among several administrative areas, with types of cases. The lump-sum payment no single body supervising a single legal option would also help control for costs aid budget. that lawyers may claim against the system but which cannot with certainty be In an effort to develop solutions to these determined to pertain to particular cases. problems, in 2004 the Hungarian Helsinki The dispatcher system is also costly; one Committee implemented a Model Legal option to make it more cost-efficient Aid Board project with the support of the would be to employ a pre-scheduled duty Dutch Ministry of Foreign Affairs. Under system. Lastly, general quality control the program, police officers in five could be improved by a regular meeting Budapest districts were instructed not to of a specialized body tasked with appoint ex officio lawyers in mandatory monitoring performance and undertaking defense cases, but rather to notify the a nation-wide assessment. program’s dispatchers. The dispatchers then contact a participating lawyer, based on a pre-set duty schedule and other Discussion considerations such as specialization in a particular type of case or relevant This segment began with an

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acknowledgment that many of the natural persons may receive legal aid, countries of Central and Eastern Europe partly because NGOs do not fit within the are confronting similar problems with the conventional grounds for legal aid (such conceptualization and implementation of as disability or indigence). Moreover, legal aid reforms. During the discussion, many categories of cases in which an participants sought suggestions and NGO may be a party (such as property comments from the panelists on specific disputes) are excluded from the scope of issues and problems, with a focus on the legal aid. (The panelist also noted that the Bulgarian and Hungarian examples. One specific example regarding a dissolved participant raised concern over the NGO could not occur in Bulgaria, where appointment of legal aid lawyers by law such actions are prohibited by law.) enforcement actors who direct the investigation and prosecution, because of Another participant noted that the draft the potential conflict of interest. Mr. legal aid act of Bulgaria gives practicing Gramatikov noted that in Bulgaria, an attorneys a majority on the Legal Aid effort was made to delegate power of Board, which is problematic with respect appointment to an external body, but the to Council of Europe standards, as the Ministry of Finance objected on the question of non-arbitrariness of a legal aid grounds that doing so would create an system also relates to the composition of enormous burden on the budget. the Legal Aid Board. Ms. Tacheva However, Mr. Gramatikov continued, in responded that in the Bulgarian case it is practice, investigators have not been necessary to balance the needs of the unwilling to appoint public defenders, client with the interests of a powerful Bar, and are gradually beginning to accept the without whose cooperation the system idea that that solid representation serves will not function. At the same time, the the interests of justice. Mr. Kadar added legal aid board is a cooperative body; its that in Hungary, police in districts members will have common goals and a participating in the Hungarian Helsinki common road to follow. Committee program had agreed that even if it may be inconvenient for the Other comments focused on cost issues, investigative authority, it is good for but at the moment, it is too soon to draw defendants to be represented. conclusions about budgetary needs or consequences of either the Bulgarian draft Some discussion centered on the question law or the Hungarian Model Legal Aid of the legal aid eligibility of legal entities, Board. Concern was also raised over the as opposed to natural persons. As one high threshold of the means tests, which participant commented, it is possible to will work to exclude persons with middle imagine a scenario in which a legal entity income from legal assistance. It was could have a need for legal aid – for suggested that other means should be example, a violation of the right to explored to expand the reach of legal aid, representation could occur where a such as contributions from recipients of resource-poor NGO is dissolved. In the legal aid, the use of legal advice centers, or Bulgarian draft law, it was explained, only the possibility of an insurance system.

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Panel III. Selected approaches to promoting legal aid reform

Findings of the “Access to Legal Assistance and Information” project in Serbia and Bosnia and Herzegovina. Dusan Ignjatovic PILI Consultant, Belgrade, Serbia and Montenegro Reform of the criminal system in Chile: from an inquisitorial to an adversarial oral system. Public Defenders Office role and goals. Sofia Libedinsky National Public Defenders Office, Studies and Research Department, Santiago, Chile A pragmatic approach toward addressing the pre-trial detention phenomenon and the provision of effective legal aid in Nigeria. Yemi Akinseye-George, Senior Special Assistant to the Hon. Attorney General of the Federation and Minister of Justice, Federal Ministry of Justice, Abuja, Nigeria Moderator: Edwin Rekosh, Executive Director, Public Interest Law Initiative

The panelists in this session work in countries that are culturally very different, yet common themes, experiences, and challenges regarding access to justice in their countries are apparent.

* * *

Dusan Ignjatovic introduced the Public recommendations. The goal of the project Interest Law Initiative’s Access to Justice is to build political will for evidence-based program, and described PILI’s current policy making and reform by gathering project in the Balkans, part of a wider data regarding legal aid provision and British government-funded program, practices, disseminating findings and Safety, Security and Access to Justice in the recommendations, and fostering a Balkans. The work involves conducting participatory approach to reform. empirical research with the help of local partners; holding roundtables and Mr. Ignjatovic shared some of the most conferences to engage a wide range of important findings of survey research stakeholders and support legal aid reform conducted by PILI in Serbia and Bosnia initiatives; and publishing related reports and Herzegovina. For instance, in Bosnia with extensive data, conclusions and clear and Herzegovina, 45.3 percent of those in

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prison had no defense counsel during the * * * first appearance, and 16 percent had no attorney throughout the proceedings. In Serbia, 54 percent of all suspects had no Sofia Libedinsky spoke on legal reforms defense counsel during the first that have occurred in Chile since the appearance before an investigative judge, 1970s. For much of its history Chile, as and 29 percent of accused persons with an was typical of Latin America, had a pure income of less than $140 per month did inquisitorial criminal justice system, in not have defense counsel at all. In Serbia, which written proceedings were ex officio counsel is available on request to conducted in secret, with a single judge in low-income individuals accused of a charge of investigation, accusation, and crime that carries a sentence between 3 sentencing. Resolution often took years, and 10 years. However, Mr. Ignjatovic and often ended without a sentence for pointed out that only 11 percent of all the accused. appointed lawyers were appointed on the basis of the client’s indigence, and only 4 Since the 1990s the Chilean legal system percent based on the “interests of justice”. has gone through a radical transformation These figures reveal the underlying need from an inquisitorial to an adversarial for a clear and robust means test. system. The reform created several new institutions, including an autonomous The survey yielded telling information Prosecutors Office to handle the with respect to the quality of legal aid investigation and accusation phase, a provided. In Bosnia and Herzegovina, 25 reorganized judiciary with one judge for percent of accused persons surveyed who the pre-trial phase and a separate 3-judge had been appointed an ex officio lawyer panel deciding the oral trial, and a had not met their lawyer during pre-trial National Public Defenders Office. detention. Furthernore, Mr. Ignjatovic reported, when asked to assess their The right to legal defense is granted in the defense counsels' performance, 38 percent constitution, but Ms. Libedinsky of prisoners with ex explained that officio attorneys in the previously, legal aid Bosnia and Herzegovina The goal is to build political services were provided survey said they were will for evidence-based predominantly by law very unsatisfied with policy making by gathering students in their last year their attorneys’ of study, during which performance, while only data on legal aid provision they were required to 19 percent said they and practices. practice before receiving were satisfied. their degree. Almost 90 percent of legal defense of indigent In conclusion, Mr. Ignjatovic noted that persons was conducted by law students the reform process in the region is quite under this system. The result was active, with all relevant stakeholders generally low-quality legal defense for the participating in a series of round tables poor, partly because proceedings often and conferences organized by PILI. In lasted longer than the students’ practice Bosnia and Herzegovina and in Serbia, terms, meaning that cases would pass Ministry of Justice decision makers have from one student to another. taken the lead in the reform efforts by establishing working groups to explore The legal reform established a mixed further reform. system of legal aid, in which approximately 70 percent of legal aid cases are handled by private lawyers

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under contract. Defense counsels participating either as individuals or as * * * law firms are selected through a bidding process. Defendants may choose a lawyer from a list provided by the judge before Yemi Akinseye-George introduced some the first hearing; lawyers are assigned of the problems facing the legal system in cases for a period of three years. The Nigeria, and followed with details about a remaining 30 percent of legal aid cases project of the Legal Aid Council of will be handled by the newly-created Nigeria, Open Society Justice Initiative, Public Defenders Office, where 145 and Legal Services Consortium aimed at lawyers serve as public employees. reducing pre-trial detention and Representation will be provided free of supporting ongoing legal aid reform. charge for defendants with a monthly income of less than $200 per month; above Mr. Akinseye-George explained that one that clients will be of the biggest challenges charged on a sliding scale, for access to justice in between 10 percent to 70 Since the 1990s Chile Nigeria is the enormously percent of the attorneys has undergone a radical high incidence of pre-trial fees. transformation from an detention. Nationwide, more than 70 percent of all Quality control is inquisitorial to an persons incarcerated are exercised in three ways. adversarial legal system. actually awaiting trial. In First, all public defenders the city of Lagos, that and private attorneys working in public number reaches 90 percent. At the same defense must submit regular reports to the time, most lawyers are reluctant to take National or Regional Public Defenders legal aid cases because they fear that they Office. Second, the national office has a will not be paid by the state. team of 18 lawyers who serve as inspectors, tasked with visiting all the The aim of the reform is to extend legal defenders working for the office, and aid beyond representation, improving real checking their work by reviewing their access to justice overall, not just in court case load, observing hearings, etc. These proceedings. One goal is to assist poor visits must occur at least once a year, and people in accessing a number of out-of- are followed by written reports from the court procedures that are provided for by inspectors to the defenders office, which law, as an alternative to court. Because of decides if any measures need to be taken the high degree of poverty in Nigeria, in response. The inspection process is another important element of the reform confidential. The third quality control will be to establish an effective means test, method involves external audits possibly using the national minimum conducted by independent evaluators. wage as a threshold, with a sliding scale However, Ms. Libedinsky added that this contribution system above that level. last option has been difficult to implement as there is no previous experience of One important access to justice project in auditing the law system in Chile. Nigeria involves the National Youth Service Corps working together with the Ms. Libedinsky remarked that the reform Legal Aid Council of Nigeria, Legal in Chile has been a challenging process Services Consortium, and the Justice involving many people and a great deal of Initiative on a service provision pilot extra study and training, but it has been a project in four states. In Nigeria, all law positive change. graduates under 30 years of age are required to spend one year in service to

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the state. The new lawyers, after a one- standards that take account of such things month training course, are posted to as how many times lawyers meet with a various government departments and detained client, for instance. Also, the private sector organizations, with the quality control system in Chile is designed government paying part of their salary. In to make use of multiple evaluation the pilot project, four National Youth methods. Service Corps lawyers are sent to the four target states, where they work under the One comment suggested that two issues – supervision of the Legal Aid Council the problem of opposition by the Bar and Directors of the respective states. The the question of external quality control – main focus of their work is to provide were perhaps being given too much necessary legal services immediately at emphasis. First, the obligation of the state the point of arrest, in an effort to curtail is to provide legal aid, not to concern itself the excessive use of pre-trial detention. with the relative wealth of lawyers. The After a year, the pilot project will be position of the Bar on legal aid does not evaluated to determine whether more diminish the state’s obligation. Second, as attorneys can be brought into the regards quality assurance, extensive program. assessment mechanisms impose another bureaucratic system and more costs of administration – why not leave quality * * * control to lawyers’ professional obligations? Others quickly disagreed with this last point, noting that without a Discussion monitoring system, there is no way to provide assistance when the work is done The discussion after this session was poorly, nor to provide reinforcement largely focused on quality control. For when lawyers perform well. Richard example, one participant was concerned Moorhead (UK), whose studies quality about the use of competitive bidding in control in legal aid, noted that extensive selection or participation of lawyers in research into legal aid in the UK showed legal aid system, as in Chile. The risk is that poor quality work was being done in that requiring lawyers to outbid each about 30 percent of all cases. Also, when other in a competitive process will solicitors were compared with paralegals, compromise the quality of services paralegals were often performing higher provided. Another question raised was quality work, which suggests the need to how to set measurable standards and how be cautious about relying solely on to keep lawyers accountable without lawyers’ professionalism to preserve interfering with the lawyer-client quality. relationship. In Chile, the Public Defenders Offices have created written

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Panel IV. Recent Developments in Selected Countries

Legal aid in England and Wales: Current issues and lessons. Roger Smith Director, JUSTICE, United Kingdom Reforming primary legal aid in the Netherlands. Frans Ohm Director, Legal Aid Board Amsterdam, The Netherlands. Striving to square the circle: Accommodating the need for quality legal aid in an age of shrinking budgets – the Israeli experience. Moshe Hacohen Head of Public Defender Office, Jerusalem, Israel Beyond lawyering: How holistic representation makes for good policy, better lawyers, and more satisfied clients. Robin Steinberg Executive Director, The Bronx Defenders, New York, United States Moderator: Nadejda Hriptievschi, Junior Legal Officer, Open Society Justice Initiative

Panel IV focused on a few selected countries with well-established, functional legal aid systems that have inspired many of the legal aid reforms in Central and Eastern Europe. Even still, their legal aid systems are constantly being redesigned and reshaped to strike an optimal balance between the costs and quality of legal services. Such experiences may provide useful lessons for other legal aid reformers.

* * *

Roger Smith discussed recent reforms of The idea of legal aid in England and the legal aid system in England and Wales emerged out of the traditions of the Wales. In recent years scholars have legal profession, which promote voluntary undertaken a great deal of intricate charitable work. As a result, lawyers have research into the system, especially with always been a driving force behind legal regard to civil legal aid. Much of the aid reforms, with legal aid primarily current reform has focused on issues of provided by private practitioners. From quality assurance, with various the time the legal aid scheme in England mechanisms to improve the quality of the and Wales was first introduced after the legal aid system being introduced. Second World War, the system did not have a set budget. However, costs have

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risen sharply, and some of the recent reforms have involved the determination While these reforms present useful of a fixed budget, with the state assuming developments from the perspective of the more control over both spending and legal state’s interest in quality assurance, Mr. aid quality. Smith noted that there was initial criticism over interference in legal practice. The Practitioners enter into priority is to strike the contracts for the proper balance between provision of legal aid The priority is to strike the the independence of the services, and are audited proper balance between the legal profession and the for quality. A “Quality independence of the legal need for quality control. Mark” system – through profession and the need for which the government quality control. grants its stamp of * * * approval to external agencies providing legal information, advice, or services of acceptable quality – Frans Ohm’s presentation focused on a allows the state to incorporate a much recent reform in the Netherlands, through broader range of services beyond those it which an established network of Legal directly funds, while still providing a Aid and Advice Centers is being replaced degree of quality assurance to the client. by an updated system of Legal Services Also, in a new pilot project in London, Counters, to be more responsive to the lawyers can participate in a competitive primary legal aid needs of a larger bidding process for contracts to provide number of users. criminal legal aid. If the competitive bidding trial is successful in London, then Since 1994, the legal aid system in the the program may be expanded nationally. Netherlands has been based on a mixed model in which public lawyers working in Some new mechanisms for quality Legal Aid Centers handle primary legal assurance have been introduced. First, aid, and private lawyers provide legal there are accreditation schemes, by which representation. The focus on primary legal providers are evaluated on their aid is meant to maintain a low threshold performance within a specialization and for access to justice, by making services certified based on satisfactory available at low (or no) cost, and to performance. The Legal Services address legal problems at an early stage, Commission may also audit client files reducing the possibility of escalation and against specific “transaction criteria”, a minimizing social and personal costs. series of points and questions that a trained lay auditor However, a study carried could use to determine out in 2000-2001 revealed what was done in a Primary legal aid reduces the some problems that particular case, and possibility of escalation and signaled the need for the standard to which minimizes social and reform to the Legal Aid it was done. Lastly, a personal costs. Centers system. A peer review system is primary issue was the also being tested, in concern that the system which independent fellow practitioners, was not effectively reaching enough experienced in particular practice areas vulnerable people, and demand for legal and trained as evaluators, review the case aid services was likely to increase in the files of attorneys providing legal aid coming years. At the same time, Mr. Ohm services. noted, some Legal Aid Centers were

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beginning to act more like private At the beginning of 2005, eight Counters providers, with increased attention given were already in operation, with the to more extensive legal assistance cases remaining Counters to open by mid-2005. and, in some instances, assistance being They are staffed by six legal advisers, provided to paying clients ineligible for including lawyers and paralegals, with a legal aid. Also, the procedure for referring receptionist, waiting area, and three walk- clients to private providers was not up counters. There is an internet point where clients can access a site with extensive legal information, and the Counters also provide advice by telephone and e-mail. All services are provided free of charge, but the Counters are limited to giving legal information and simple legal advice. When more complicated legal services are needed, the Counter staff must make a referral to a private lawyer.

A significant innovation for the work of People in need of legal advice are served at walk- the legal advisers is a specially-developed up Legal Services Counters in the Netherlands. software program which tracks inquiries and related data, and incorporates a sufficiently transparent, with some knowledge base component that staff can Centers retaining preferred cases for use to easily access information on a wide themselves. And, more generally, there range of legal issues. Also, the software was growing public debate regarding the contains referral and scheduling role of the state in a market economy, and functions, allowing the Counter staff to a sense that more types of services should directly schedule a meeting with an be market-regulated. attorney, and confirm the time and date

with the client immediately. The software With the reform, 30 Legal Services is an important element in ensuring the Counters will be established across the efficiency and transparency of Legal country, distributed in such a way that Service Counter operations. any individual should be able to reach a

Legal Services Counter by public Mr. Ohms stated that clients’ initial transport within approximately one hour.

The centers are designed to be open and approachable… …and easily accessible by public transportation.

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response to the new Legal Service up as much as 50 percent of all Counters has been very positive. At the appointments). As a result, the actual same time, the new system does carry expenditures of the Public Defenders some risks that will need to be monitored: Office greatly exceeded the planned Will higher client costs, compared to the budget, though until 2000 the state previous system, have a negative effect on managed to cover these costs. demand, and consequently on access to justice? Will paralegals be able to deliver In response to the financial crisis, Mr. services of requisite quality? Also, there is Hacohen explained, the Public Defenders a risk that Legal Services Counters will Office was faced with a difficult dilemma: become “referral factories”, or that clients either to substantially curtail eligibility for will get lost between the counter and the legal aid, or to make serious cuts to public lawyer when referred, ultimately reducing defenders’ remuneration. After much the program’s effectiveness in helping deliberation, the latter option was vulnerable people find efficient and adopted, resulting in a 30 percent affordable solutions to legal problems. reduction in public defenders’ fees since These concerns notwithstanding, it is 2001. The number of public defenders was believed that the Legal Services Counters reduced, increasing individual caseloads will be a meaningful improvement for in order to compensate for the lower per- legal aid in the Netherlands. case income. A contract system was also introduced, through which private lawyers handle a fixed number of simple * * * cases for a flat fee. These measures successfully capped expenditure, but may reduce the incentive for defenders to Moshe Hacohen spoke on balancing legal maintain zealous, high-quality aid needs with the constraints of limited representation. legal aid budgets. In Israel, when the new legal aid system was established in 1996, it Another cost-control measure was the introduced very narrow substantive introduction of “mass arraignment” days eligibility criteria for legal aid in both civil at court, during which duty attorneys and criminal cases (5-year or longer (paid by the day, rather than by the case) potential sentence) and represent clients in a very restrictive anywhere from 50-200 financial eligibility Quality assurance measures cases, attempting to threshold (earnings can be implemented in order reach favorable plea lower than 67 percent of to offset negative effects of agreements. The benefit the average income). In of the duty system is addition, judges in budgetary cuts. that by increasing the criminal cases were also number of clients accorded the discretionary power to grant represented, it does improve efficiency legal representation to defendants who and reduce costs; there is also no did not meet the tight eligibility criteria. eligibility requirement. However, it However, since 1996, the number of creates an “assembly line” atmosphere, applications for legal aid has grown with little personal attention to individual steadily. New legislation has also clients. Lastly, a computerized system was gradually expanded legal aid eligibility, implemented to assess costs for each without the allocation of additional funds, proceeding, which should help in and judges were using their discretionary planning for expenditures on a periodic power more and more often to grant legal basis. aid in otherwise ineligible cases (making

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Quality assurance measures have also curtailed, imposing strict limits on judges’ been implemented to offset the negative ability to grant legal aid to otherwise effects of budgetary cuts. For example, ineligible applicants, and eliminating because the funding changes carry a risk judges’ power to grant full exemption of degrading the quality of legal aid from legal aid costs. provided, the Public Defenders Office has increased the supervision and monitoring of public defenders. Direct monitoring * * * methods include more inspection visits to courts, compulsory reporting by attorneys on cases handled, and the requirement of By way of introduction to the concept of Public Defenders Office approval when holistic representation, Robin Steinberg plea bargains result in incarceration. related the story of a client, “Wendy”. In Training and support for public defenders addition to her criminal legal troubles, has increased as well, involving frequent Wendy, a 33-year-old mother of five, was training sessions for external public addicted to drugs, had no job, had no defenders, and the distribution of permanent shelter, and had lost her “information kits” – including, for children to state foster care. At The Bronx example, information on legislation and Defenders, in addition to providing the precedents, and model pleadings – to legal representation in her criminal case, public defenders. Wendy’s case workers were able to help her get her children back, to get stable The financial constraints housing, and eventually, necessitating these after drug treatment and reforms in Israel have led Holistic representation later job training, to to a rethinking of the become a counselor for concept of eligibility. Mr. broadens the concept of people in the community Hacohen highlighted the quality legal aid by aiming who are suffering from disproportion in the to prevent the return of AIDS. current system, in which the client to the criminal only 5 percent of legal aid law system. Ms. Steinberg noted that applicants actually the traditional approach qualify for aid, but 50 to legal aid focuses only percent of applicants in fact receive legal on the criminal case, rather than on the aid through judges’ exercise of client. However, experience shows that discretionary power. Even those this kind of approach is too narrow, and nominally required to contribute to their fails both clients and society: clients’ legal aid expenses are often exempted by problems often go beyond their criminal judges, in order to avoid court delays. In cases, extending to a broad set of poor an effort to rectify these conditions, a new social circumstances (such as poverty, eligibility system has been proposed, drug addiction, homelessness, etc.). In under which eligibility requirements some cases, from the point of view of the would become more flexible, allowing a client, the criminal case may not even be larger number of applicants to qualify for the most pressing problem. If clients do some kind of legal aid. At the same time, not also receive help for these other a comprehensive progressive contribution troubles, they typically will end up back system would be implemented, under in the criminal system. Thus, Ms. which the poorest applicants receive full Steinberg asserted, the definition of what coverage, and others pay fees on a sliding constitutes quality legal aid must be scale according to financial need. broadened: One of the goals of legal aid Discretionary provisions would be

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should be to prevent the return of the approach reduces the possibility of clients’ client to the criminal law system. return to the criminal justice system, which is a useful point when advocating Holistic representation, then, is not just for government support. about what happens in the court room; it is about the client’s entire life. Ms. Steinberg acknowledged that this is a * * * revolutionary concept, but nevertheless it is being recognized more and more that clients need more than just legal Discussion assistance in their criminal cases. Holistic representation is client-centered – it In discussion, the first responses were to empowers clients to face the challenges Ms. Steinberg’s description of holistic that life puts before them. representation, and the role of the lawyer defending indigent clients. One Ms. Steinberg outlined two major commenter objected that lawyers should components of holistic representation. be lawyers, not social workers. Ms. First is the cooperation of professionals in Steinberg countered that being aware of interdisciplinary groups, in which the client’s other problems makes the paralegals, social workers, child and lawyer’s work easier, by providing a family advocates, immigration specialists, context. Ms. Steinberg emphasized, etc., work together to address clients’ however, that this does not mean that the problems. This arrangement allows lawyer herself should take up the social service providers from different worker’s or psychologist’s role, but rather professional backgrounds to share their that the lawyer needs to be sensitive to the diverse expertise and collaborate with other issues in the client’s life, and help lawyers in defining the client’s needs – a get other appropriate specialists involved radical approach for lawyers who have as well. Sometimes the clients themselves been taught to focus only on legal issues. are resistant to such broad-based Second, it is essential that the advocates intervention, but it is always the client’s have a presence in the community. In the choice: If the client prefers, The Bronx case of The Bronx Defenders, not only is Defenders will concentrate only on the the office located in the center of the legal services. community it serves, but also its staff are always present in other ways, doing needs When participants sought advice on how assessments and creating community and to set up such holistic representation school projects. arrangements, it was noted that various models exist in different countries. In the The holistic approach itself cannot resolve United Kingdom, there are also poverty, but it can help to address the interdisciplinary workgroups that bring needs of impoverished communities. It lawyers together with other specialists changes the way the justice system is seen such as psychologists and social workers, in the community – when clients feel that but these are organized through alliances their voices are heard, the credibility of formed outside the office. In the the criminal justice system also increases. Netherlands, clients go first to social Lawyers also become more effective workers, and only then to lawyers. At The advocates for their clients: If they are Bronx Defenders, it was considered aware of and sensitive to the living preferable to have all the specialists under conditions and problems of their clients, the same roof because it is easier for a lawyers can argue more powerfully for client to go to one place rather than to a their clients in court. And taking a holistic few different locations. Also, it reduces

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the risk of clients being “lost” in the A significant question from the system – there is no real guarantee that perspective of countries just beginning to they will go through all stages of the establish legal aid systems is how to process when the offices are spread out. determine the financial needs of a legal aid system that has yet to be constructed, One difficulty that will likely need to be and how to advocate for funding. overcome in order to establish holistic Unfortunately, there is no formula for representation arrangements is the assessing legal aid needs and/or costs per reluctance of government to fund capita. It will depend on many financial anything other than costs directly related and legislative factors, and will vary to legal representation. In the case of The considerably from country to country. For Bronx Defenders, their contract with the instance, in South Africa the cost of the New York City government covers the system works out to about $1.6 per capita; costs of legal representation. They were in the UK, it is €30 per capita. One also successful in lobbying for extra funds strategy is to establish a small pilot for some non-legal work, based on the program, which will help assess needs in understanding that some services help to a particular setting. It is also useful to prevent crime and address immigration draw on the experience of other countries. problems. However, the city government For example, in Lithuania, a preliminary does not fund a number of other services, assessment was made based on figures including those relating to civil matters, from the pilot public defenders offices and family law, housing, and education. The the indices used for legal aid needs and Bronx Defenders tries to find support for costs assessment in South Africa and these kinds of services from other sources Israel. and in other ways, such as partnering with educational institutions who provide Legal aid costs depend on the model of social work interns. legal aid delivery that is chosen. In many countries the current model is ex officio A second set of comments during appointment of defense counsel in discussion focused on cost management criminal cases. On its face, this model strategies. Some discussion focused on the seems inexpensive, as ex officio lawyers are relative advantages and disadvantages of paid very little by the state. However, it recovery of costs from clients, whether proves to be much more costly than the through progressive contribution public defenders office model when one arrangements or post-conviction does an honest assessment of the costs of reimbursement requirements. Attempts at minimum legal actions that lawyers must post-trial reimbursement in both the US and the UK did not function well and were abandoned. Partial contribution systems, on the other hand, have been more successful, and have the advantage of building confidence in the system – both from the perspective of clients, who may presume that “free” service means lower-quality service, and from the perspective of funders, because it maintains the market principle. Robin Steinberg (The Bronx Defenders, New York), seated next to Moshe Hacohen (Public Defenders Office, Jerusalem) responds to a question.

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take (and which ex officio lawyers typically aid services at a lower cost. Other quality- do not take) to provide a quality defense. based arguments that can be advanced Thus, financial assessment – and include ensuring constitutional standards, advocating for government support of one decreasing disaffection and improving system or another – should be done from public trust in the justice system, and – the point of view of quality: that is, how to particularly in the case of holistic achieve minimum or better quality legal representation – reducing crime.

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Panel V. Legal Aid Provision in Non-criminal Matters

Country practices on legal aid delivery in non-criminal matters. Traditional and non-traditional models of delivery (state, private, role of pro bono networks). Daniel S. Manning Director of Litigation, Greater Boston Legal Services, United States The Union of Citizens Advice Bureaux in Poland. Hanna Gorska Union of Citizens Advice Bureaux, Poland South African models of legal aid delivery in non-criminal cases. Prof. David McQuoid-Mason University of KwaZulu-Natal, South Africa Legal aid and combating discrimination. Dick Houtzager National Bureau against Racial Discrimination, The Netherlands Moderator: Atanas Politov, Program Director, Public Interest Law Initiative

This panel addressed legal aid in the non-criminal context from a variety of perspectives. The first presentation discussed issues that should be considered when developing a civil legal aid system, and the following presentations gave an overview of some civil legal aid programs currently in operation, including one directed specifically at providing remedies for discrimination.

* * *

Daniel S. Manning began by providing a any other lawyer would. Though the short background to civil legal aid in the NGOs receive government funding, they United States. The legal aid system in the are independent organizations. They set US is clearly divided between the criminal their own priorities, decide what services and civil spheres. Legal aid in civil to provide, determine eligibility, and matters is primarily provided by legal aid select clients. NGOs in which lawyers are employed as staff attorneys on a full-time basis to Civil legal services in the US developed provide legal services. These are out of the particular history of the urban effectively law firms, and the lawyers riots of the 1960s, when Black Americans have the full ability to practice law, just as rebelled against the oppressive conditions

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under which they were living. Civil legal aid services were introduced at that time, as an explicit part of President Johnson’s so-called “war on poverty”. It was a conscious decision to promote systemic legal advocacy in neighborhoods. Though the system has since changed considerably, this history still informs the approach taken by civil legal services NGOs Daniel S. Manning (Greater Boston Legal Services, Boston) in the US. In order to be in a coffee-break discussion. able to define civil legal aid, Mr. Manning the question of who makes these decisions suggested, it is important to know its – there can be tightly defined criteria purposes. In the US, the purpose was to decided by the government on the state serve an anti-poverty agenda – it was level, or there can be a more open-ended framed not in civil or human rights terms, system where criteria are defined at the but rather almost exclusively in economic local level based on local needs. For terms. In Europe, the discussion emerges example, one civil legal aid NGO in out of a human rights agenda. Bangladesh includes a street theatre group because in rural areas that it is a highly “Access to justice” is usually taken to effective way to deliver their message to mean access to courts. This may be the population they serve. One question is appropriate framing for criminal legal aid, who is available to provide services, but it is not sufficient to cover the civil particularly in rural areas. Also, should legal aid field, as many of the issues legal aid be available only to individuals, affecting the poor and disadvantaged or may groups also receive aid? At never come to court, and many do not Greater Boston Legal Services, Mr. come before a government body at all. In Manning’s organization, many cases deal civil legal aid, practitioners must be able with groups – tenants’ groups, advocacy to provide advice to groups, etc. In some people about a range of organizations in the US, legal matters that affect Civil legal aid practitioners public interest advocacy their lives. Mr. Manning must be able to provide groups can also get legal emphasized that when advice to people about a aid in environmental setting up a civil legal aid range of legal matters that pollution cases. program, it is important to be as clear as possible affect their lives. With regards to funding, about what the program Mr. Manning noted that is meant to accomplish. the premise is that there is an essential public obligation to fund legal aid, but Civil legal aid organizations need to make direct government appropriation for legal choices about the types of cases to work aid should be a base, supplemented by on, the range of services to offer, and the other sources. Civil legal aid groups need population to be served. Also important is

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to be creative when looking for funding. changes are made very quickly, statutes There are many other ways in which are drafted in a hurry, executive NGOs can make government functions regulations do not keep up with the more efficient, so in the US, civil legal aid statutes, and all this is done in language is not limited to receiving funds from the that is incomprehensible for most people. justice budget. Other possible forms that Together, these conditions create a critical “public funding” could take include need for information and advice, given in surcharges on filing fees, interest on a clear and comprehensible manner. lawyer trust accounts, EU support, and other grants. The foundation of institutions such as Citizens Advice Bureaux rests on a provocative question: Do we always need * * * jurists’ assistance in difficult situations? Ms. Gorska pointed out that in many situations advice can be given by In the introduction to her remarks on the adequately trained advisers who are not Polish Union of Citizens Advice Bureaux, lawyers. In Poland, they do not interpret Hanna Gorska briefly commented on the law as they are not legally permitted to do discussion of “paralegals” during the so, but with other skills and information Forum. Ms. Gorska noted that she was they can help individuals understand there as a paralegal herself, though she what solutions are available and what had not known before the Forum that this institutions may be approached for was the name for the work that she does, assistance. Access to justice means not nor that there were so many others only access to courts, but access to serving as paralegals in so many other information and advice as well. In Poland, countries of the world. the government and church organizations provide some The Union of information, but this Citizens Advice is not enough. Bureaux consists of Access to justice means not only Citizen advising, NGOs based on the access to courts, but access to especially for same model in information and advice as well. indigent people, is approximately 20 left to NGOs. countries, which provide free advice to people in need. Citizens Advice Bureaux The Citizen Advice Bureaux adhere to were first established in Poland in 1996, in several main principles: independence, the midst of transition from the socialist confidentiality, impartiality, openness, regime. provision of services free of charge, facilitation of self-defense, and relevance Ms. Gorska explained that 60 years of and reliability of information. Each center socialism, with no importance given to is independent, which is a strength – the civil rights, generated a tendency to centers have no ties to any government apathy and inaction among the agency and are able to give impartial population in Poland. Because of this advice. Every client can expect to be heritage, trust in information and advice carefully listened to, and that the staff will from official sources is still very limited explore options for solving the presented for many Poles, who often do not know problem and explain the consequences of their rights or how to exercise them. Even various options a way the client can today people know little of the legal understand. system and of the civil services, partly because of constant legal changes. Legal

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Most people working in the centers are introduction and background to the volunteers and are not paid for their system, and providing a view into the role work. The solutions offered to clients vary of paralegals in civil legal aid. widely, and may involve other NGOs in particular fields such as social welfare or The right to civil legal aid is formalized in psychology. Cases may also be passed on the South African Constitution; however, to the office of the Ombudsman, with the constitution only addresses legal aid whom the centers operate closely. The in criminal cases, and for children in civil most typical clients are often middle-aged cases. The test for the appointment of a women with some secondary or lawyer is whether a substantial injustice vocational education, and some source of would result if a person who cannot income, though not usually salary. afford a lawyer is not appointed one. Usually, the clients come from among the Apart from these requirements, the most poor, those subsisting on disability constitution does not make any specific or pensions. Advisers also go into prisons provision for civil legal aid (though, Mr. and farm cooperatives to reach clients as McQuoid-Mason speculated, the right to a well. fair public hearing in a court may possibly apply if it may be interpreted to require Ms. Gorska reiterated that the Citizen equality of arms). The Civil Procedure Act Advice Bureaux workers give information also provides for in forma pauperis and advice but do not act on behalf of the proceedings for people who cannot afford client. The Citizen Advice Bureaux never an attorney in civil matters such as represent clients – they give the client the divorce. The legal aid board receives tools to be active on his or her own behalf. about $1.36 per capita for legal aid, 85 percent of which, according to the Regarding state-provided legal aid in constitution, is allocated for criminal legal Poland, so far only lawyers working pro aid. bono or with law clinics have provided free legal aid, an arrangement which does Beyond these general legal provisions, not meet the needs of the population. there are also different methods and However, quite recently a draft bill was practices available in particular elaborated within the Ministry of Justice circumstances, including special courts in which would provide for legal aid for the which no legal representation is required. indigent. It would establish up to 42 legal For example, there is the small claims aid centers in the coming years. Ms. court, and chief’s or headman’s courts for Gorska expressed the hope that having tribal people in rural areas. Some other legal aid bureaus in regional courts would approaches include the recently significantly extend legal aid for the very introduced use of contingency fees (in poor. Ms. Gorska also raised some which the lawyer is not paid if the case is concern that those who live far from lost, but receives a percentage of the regional courts would not benefit from the damages if the client wins), and the option new law, but observed that this is an to engage pre-paid legal services (in important first step. which clients are covered up to a certain amount of legal expenses, based on payment of a monthly premium). * * * The main vehicle of legal aid delivery in South Africa is the Legal Aid Board, set David McQuoid-Mason’s presentation up in 1971 and made up mostly of non- addressed South African models of legal governmental representatives. The Board aid delivery, giving participants a short is independent and has full discretion

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over implementation of the legal aid single model. Often countries will begin program according to the terms of the with a judicare model, but then find that constitution. It originally began operating judicare systems get very unwieldy in a on a judicare model, but the volume of short time. A legal aid system should be cases was such that this approach was not individualized – countries must determine at all cost-effective, and service provision which of many models suit them best. As is now done on more of a public a final comment, Prof. McQuoid-Mason defender/justice center model. Still, there suggested that if there is an are a long list of exclusions defining cases apprenticeship requirement for new in which civil legal aid is not available. attorneys, a country should look to that system for legal aid provision. It is a way Pro bono legal aid work is growing in to use an oversupply of lawyers while at South Africa, although Prof. McQuoid- the same time giving them access to the Mason cautioned that pro bono cannot be profession. Also, law students and expected to replace the national aid paralegals need to be brought in as well. system, as the state obligation remains. Also, there are still judicare referrals to private lawyers, as well as public * * * defender systems. Another useful delivery system relies on law intern public defenders, typically law graduates doing Dick Houtzager’s remarks focused on their apprenticeships. Some law interns access to justice in practice, drawing on work in rural law offices, under the the experience of the Netherlands’ agreement that a certain proportion of National Bureau against Racial interns’ work must be legal-aid focused, Discrimination (LBR). LBR, in existence though this requires monitoring. A for 20 years, works to counter racial separate recent development is discrimination in a multitude of ways, not consolidated justice centers, one-stop- only dealing with legal issues, but also shops that provide comprehensive working on education projects, labor services. One-stop-shop systems have market projects, and the fair portrayal of high start-up costs, but if there are a large minorities in the media. number of cases they can do very well. Working together with The Netherlands justice centers may be employs a system of paralegal advice A legal aid system should be paralegals to provide offices, which receive individualized – countries support to victims of support from the Legal must determine which of discrimination, with Aid Board. Public many models suit them best. the work carried out interest law firms and mostly by 30 anti- university law clinics discrimination agencies are also involved in the provision of legal around the country. The agencies have a aid, through cooperation agreements with number of ways of solving discrimination the Legal Aid Board. Lastly, as regards complaints. The first approach is to impact litigation, the legal aid board attempt to find a non-legal solution, often maintains a special fund to deal with cases by negotiating directly with the employer in which a larger number of people are or institution where the discrimination involved. took place. The agency can also initiate a legal proceeding before a specialized In conclusion, Prof. McQuoid-Mason body, the Equal Treatment Commission remarked that there are many alternatives (ETC), or take a case to court. for providing legal aid – there is no real

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The ETC procedure is meant to be simple but not about discrimination law, legal aid and accessible and begins with a written offices have other competencies, etc. It is request from the complainant, which is impossible to know how many potential followed by a request for a reply from the discrimination cases are missed by respondent. The Commission holds public lawyers who do not translate the issues in hearings and concludes the procedure front of them in discrimination terms (for with a written opinion. The procedure is instance, they may identify the labor informal, designed for access without problem, but not the discrimination issue). legal counsel. Since So there may be a it is not a court, the number of ETC can adopt a The Netherlands’ Equal Treatment discrimination cases proactive posture Commission procedure is simple that do not come up and actively seek and informal, designed for access before either the out information. without legal counsel. ETC or the courts, However, because simply because they of the low-threshold are not being procedure, ETC opinions are non-binding. recognized. If the offending party does not comply with the decision, or if the complainant Mr. Houtzager concluded by saying that, wishes to seek damages, he or she must overall, the ETC procedure has provided take a case to court, where a new for efficient remedies in discrimination appraisal of the facts will be done. cases, even though no legal aid is However, the majority of the ETC’s available. However, there are also a few opinions are followed – in most cases, the disadvantages. So far there has been very body that committed the discrimination little experience with the ETC in the does what it is asked to do in the ETC judicial system, no sanctions are applied, opinion. and the case law of the ETC, its body of opinions, is never tested in a court of law. If a discrimination case is handled in a court, then legal aid is conditionally available (means and merits tests apply). * * * In the ETC, no legal aid is available, because the procedure is easy and Discussion informal. There are very few discrimination cases in courts of law. In A number of participants sought more the last five years, only about 40 ETC specific recommendations regarding the cases, out of approximately one thousand process of establishing the types of legal opinions, subsequently came into the aid and paralegal systems the speakers court system. had described. For example, how can advocates go about setting up a legal aid There are a number of reasons for the system where the government is small number of discrimination cases in supportive in principle of a legal aid courts. First, it can be considered a result system, but has very few resources to of the efficient procedure at the ETC – support one? Ms. Gorska noted that in her people are happy with ETC arrangements experience in Poland, it was always very and the legal costs involved in going to difficult talking with government court are still a major hurdle for many authorities about financial support, as individuals. At the same time, there is a there were never enough funds. It is limited knowledge among intermediaries always easier when an NGO has begun in the legal field – for example, trade work before asking for government funds, union lawyers often know about labor law and therefore has concrete results to point

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to. So far, the Citizens Advice Bureaux serious needs. Prof. McQuoid-Mason have not received any funding from the agreed that it was important to look to the national government. typical legal problems in a particular country, and to take into account what Mr. Manning suggested that groups kind of coverage is already provided by attempting to set up a new legal aid the existing legal framework. Prof. organization should begin by reaching out McQuoid-Mason also emphasized that to the local community and finding out where apprenticeships are a part of the what the most pressing needs are. The professional qualification process, new system should be as organizations should flexible as possible at the involve apprentice start, instead of trying to Where apprenticeships are lawyers in their work. It anticipate exactly what part of the professional provides young lawyers services are needed and qualification process, legal with an incentive to do how to provide them. By legal aid work, especially involving people from aid organizations should where apprenticeships the community in the involve apprentice lawyers are difficult to get, while initial outreach and in their work. giving them access to the eliciting their views on legal profession. Another what problems need to option can be to have the be addressed, a new legal aid organization state allocate funding to NGOs to take all can prioritize by focusing on the most the cases on a certain topic, for instance.

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Breakout Group #1: Legal Aid Policy-making and Management facilitated by Roger Smith, Director, JUSTICE

To begin the session, facilitator Roger managing legal aid – such as, for example, Smith identified four necessary elements a Legal Services Council or Legal Aid to consider in any discussion of legal aid Board. Should this body be independent policy: from the government? How will the Scope of legal aid and legal aid government be able to monitor how providers. Should legal aid be granted in eligibility tests are administered, and how criminal cases only, or should it be money is being spent within the system? extended to civil cases also? Should legal aid mean only legal representation, or In exploring these questions, participants should the phrase encompass legal advice compared the different systems in place in and information as well? How should various countries. For example, in the UK, eligibility criteria be defined? Who will the top appointments to the Legal Services the providers be? Will they include Commission are made by the government, paralegals, trainee lawyers, or others? with the Commission responsible for Management structures. What policies and priorities. By comparison, the role should the state play in the legal aid legal aid board in Australia has more system? In particular, what should the discretion. In Bulgaria, the proposed Legal role of the Ministry of Justice be? Who Aid Council will be controlled by lawyers. will make decisions on legal aid policy In Bulgaria this was an important and management? Is there any need for an question of viability: the Bar is very intermediate body between the state and influential in Parliament, and would only the individual receiving legal aid? agree to the draft legal aid law if they Quality control. How will the were adequately represented on the Legal system ensure the quality of legal aid? Aid Council. Two more seats on the How will quality be monitored? Council will be controlled by the Ministry Delivery models. What factors go of Justice. into the selection of legal aid delivery model? What does the decision depend Questions of organizational efficiency on? How does the choice of legal aid may also come into play, however, delivery model impact on these three possibly changing the composition or issues? functioning of legal aid management. For example, in Lithuania the task of Over the course of the breakout group coordinating the appointment of legal aid discussions, the participants focused on lawyers was initially granted to the Bar, legal aid management and quality control. but in practice this function is handled by investigation authorities, as it was The first issue for discussion was the discovered over the course of 3 years in independence of the legal system. If the practice that the planned system of body managing legal aid is to be regional coordinators appointed by the independent from whom should it be Bar did not function well. In general, the independent? The state? The Bar? group agreed that however responsibility Suppose there is an intermediate body is allocated, it is very important that there

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be a clear distribution of functions, such as are more likely to provide better quality what tasks the government will be legal aid is highly culturally determined. responsible for, and what functions will For example, in some jurisdictions in the be delegated to the legal aid management US, salaried lawyers working within the body. legal aid system are more highly regarded than private attorneys taking legal aid The group also discussed the possible cases. roles that NGOs could serve in the legal aid system. In some cases they may In the Lithuanian example, full-time participate in decision-making. Also, they lawyers working in the state legal aid may serve as legal aid providers, offices will be obliged to meet minimum becoming the recipients of state funds. A performance standards. The capacity and participant noted that in Georgia, an NGO qualification of private practitioners will (the Georgian Young Lawyers be assessed during the bidding process. Association), was a major initiator of legal There is also a need for ongoing quality aid reform, developing a concept paper control, either by reviewing files in and draft law, and will be represented on completed cases, or possibly even during the overseeing board. In Lithuania, NGOs the course of a criminal case. This latter are providers of primary legal aid, and are option is available in Israel, where public also involved in decision-making, as NGO defenders can even replace lawyers who members will sit on the legal aid are not doing their jobs properly. In the coordination council. The Legal Aid Netherlands, private lawyers must meet Coordination Board in Poland will include criteria set by the local Bar in order to NGO members, though it is only an participate in the legal aid system. advisory body. NGOs may be funded for legal aid work, and can work in This discussion of quality control methods collaboration with lawyers. led into a more detailed discussion on the use of contracts in a legal aid system – if a A discussion on quality control brought country wishes to introduce contracts, up some questions with respect to how what are the options? First, the contract the legal aid system can assert quality has to be long enough for lawyers to control over private practitioners. In the justify their participation: the general salaried system, there is a bureaucracy opinion was that a one-year contract with a built-in system of control. In would not be long enough; three years private practice, the provision of good seems more reasonable. quality service may be motivated by the demands of professional ethics. Also, The scope of the contract can be defined in whatever body is managing legal aid can various ways, each with its own potential make participation in the system disadvantages. For example, the contract contingent on external quality assessment can be devised to cover a set number of requirements. In Bulgaria, for instance, it hours, such as 200 hours of work per was felt that better quality control could month. The risk of this approach is that be exercised over private practitioners, practitioners will say they need to take because they participate based on yearly longer on their cases. Alternatively, the contracts that can be terminated if the contract can be for a fixed number of cases lawyers’ work is of unsatisfactory quality. in a month; the risk here is that lawyers With salaried lawyers, conversely, labor will strive to choose “easy” cases that will legislation makes it more difficult to allow them to fulfill their obligations more terminate poor performers. Generally quickly. Another possible option is to speaking, the question of whether salaried focus on categories of cases, making a legal aid lawyers or private practitioners contract for “Dubrovnik district court

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criminal cases,” for example. The of the system more broadly, such as the disadvantage here is that there is no limit research being done into the quality of on the number of cases that might be legal aid in Croatia. Also, participants involved, leaving the risk that lawyers raised the possibility of finding ways to would be overwhelmed by too many measure client satisfaction. cases. Part of the discussion on quality control Returning to the issue of quality control, dealt with the issue of how to balance the the group explored concrete ways of quality of legal aid with tight budgetary measuring legal aid quality in practice. limitations. One opinion was that when Should specific designations be given there are too many cases and not enough (such as unsatisfactory, good, very good, lawyers to work on them, questions of excellent)? How can one go about quality should be secondary to quantity, deciding whether to award something like suggesting that quality can only improve a “quality mark”? These questions elicited when the financing of the system various suggestions. One index of quality increases. There was strong disagreement is the number complaints that have been with this opinion, as many participants registered against a lawyer – participating felt that there is no point in establishing lawyers should be checked for negative bad quality services. history. Also, qualification and accreditation processes – either existing Strategies that were raised for addressing processes that all lawyers must pass in quality issues in a limited budget involved order to practice professionally, or extra focusing on diverse non-monetary certifications in specialized areas – can benefits and incentives for lawyers help ensure quality. participating in the system – for example promoting the idea that a legal aid Some specific methods of quality organization will bring together elite assessment include: practice management lawyers, or using students and young standards created by the bar association to lawyers as low-cost service providers. One set requirements on how practices are concern raised was that in societies where organized; direct the judicial system is highly supervision, in which legal corrupt, with so-called aid providers meet Strategies for assuring “elite” lawyers largely regularly with supervisors, quality within a limited reaping the benefits, the as often as every week; file budget can involve conception of legal aid assessment, a more lawyers as elite lawyers obtrusive means of diverse incentives for may be taken to mean that monitoring in which an legal aid lawyers. corruption has been built in evaluator reviews clients’ to the legal aid system from files; and peer review, in the outset. As for bringing which involves respected, expert lawyers in young lawyers, the benefit is that they are hired to assess participating lawyers’ are very motivated and can develop performance, though this is hard to do in strong professional skills by working on small jurisdictions. Other methods were legal aid cases, but it was emphasized that discussed as well, such as the practice young lawyers should work in teams with established in the new Estonian law, in more experienced lawyers. There was also which the Bar’s evaluation committees some resistance to the idea of using may invite private practitioners for students to provide services, as they are personal interviews as a part of the too inexperienced. However, the evaluation process, or the establishment of experience of some well-functioning legal an academic study to evaluate the quality aid systems has shown that use of law

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students is beneficial for various reasons. Firstly, it is a less expensive solution Overall, the group agreed that money was compared to hiring private lawyers. not the only issue, as high remuneration Secondly, it provides students with for legal aid lawyers cannot alone solve practical skills. The quality of services is a the problem of quality. It is important that concern, but law students can be a committed and enthusiastic people are valuable addition to the legal aid scheme attracted to work in the legal aid system, if properly supervised by experienced and that corrupt lawyers are kept away legal aid lawyers. from it.

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Breakout Group #2: Models of criminal legal aid delivery: public defenders, judicare/ex officio, contracts facilitated by Valerie Wattenberg, Senior Legal Advisor, Open Society Justice Initiative

The first half of the breakout group’s work single lawyer working on his own would was devoted to presentations on some be unable. Some of the challenges in innovations in the criminal legal aid establishing a teamwork office stem out of delivery systems in three countries, the fact that in the initial set-up of an Bulgaria, Lithuania, and Kazakhstan. The office, it is not always the best lawyers Bulgarian and Lithuanian systems are who come forward to offer their services. based on a Public Defenders Office model, At the same time, sometimes well-skilled with pilot projects involving attorneys lawyers are nevertheless resistant to working as a team in a single office to consulting with others or sharing provide legal aid in criminal cases. The experience, which creates tensions in the Kazakhstan presentation centered on a office. juvenile justice project in which practicing attorneys provide legal aid to juveniles on With regards to the impact of their work, a part-time basis. The lawyers work out of Mr. Petrauskas noted that at the their individual offices, but they meet beginning, the Public Defenders Office regularly with other attorneys in the faced negative reactions and suspicion project to discuss cases, and they work in from law enforcement officials. For collaboration with social workers. instance, law enforcement officials, vested by law with the power to assign cases, In introducing the presentations, initially ignored the public defenders and facilitator Valerie Wattenberg asked the did not assign cases to them. It was not panelists to focus on two points: the until other agencies intervened that the advantages of teamwork versus coordination framework was changed, individual work by single lawyers, and and the public defenders started to receive the impact that their work has had on cases. Also, it took time for the police and other criminal justice actors in their other authorities to accept the degree to countries. which public defenders were struggling to secure their clients’ release from Lithuania detention. Presenter: Rymvidas Petrauskas, Vilnius Public Defenders Office Bulgaria Presenter: Alexander Penchev, pilot public In Lithuania, the Vilnius Public Defenders defenders office (Legal Aid Bureau) Office has been functioning for three years, with six attorneys working in a The pilot public defenders office, team. Effective teamwork developed in consisting of five lawyers and an the office over time, as the lawyers administrator, has been working in became more comfortable exchanging Bulgaria for two years, during which time opinions. They have found that a great they have discovered some of the advantage of teamwork is the ability of a advantages of working in a team. Lawyers team to achieve a tangible result where a can spread out the burden of a complex

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case, and they can share their thoughts work creates a friendly, cooperative with their colleagues and receive a quick environment. All the lawyers taking part response. At the same time, if they are in the project have said that it is much competitive they can compare their work better then their full-time jobs, where with others, but before investigators and there is a lack of trust among colleagues the court they act as a single unified and no one to turn to if they have doubts. entity. In the juvenile justice group, by contrast, they feel more comfortable and can easily Mr. Penchev stated that they have find help. received positive feedback from courts and other institutions, which consider he In Kazakhstan, the Juvenile Justice Project public defenders office a high-quality lawyers have been able to begin to work service provider, and often say that the collaboratively with police and public defenders are better than ex officio prosecutors to address general problems lawyers. However, they are attacked by in the system. They organize discussions other practicing lawyers – and particularly with prosecutors and the police once a by ex officio lawyers, their fiercest critics – month to discuss general negative trends because public defenders are seen as in law enforcement. For instance, they dangerous competitors. This too, though, have been working with authorities to says much about the quality of work of reduce the unfounded taking of children their office. into custody.

Kazakhstan For the second half of the breakout group Presenter: Svetlana Bekmambetova, head of session, the facilitator shifted the focus to the Juvenile Justice Project lawyers’ group discuss clients and their needs. This involved some general discussion to The Juvenile Justice attempt to describe the Project is made up of feelings of a client sixteen lawyers working If everyone has the right to entering into a case. The out of their individual facilitator posed the offices, who meet to have a voice in the criminal question by noting that if consult together once justice system, it is the job it is everyone’s right to every one or two weeks. of the lawyer to make sure have a voice in the For them, one of the the client is heard. criminal justice system, it benefits of teamwork has is the job of the lawyer to been that the team brings make sure the client is together lawyers of different ages and heard. What, then, does the client feel? backgrounds who complement each other. Participants came up with a number of Older colleagues bring experience and responses: clients are scared and need common sense, while young people bring help; they may be holding out hope or, enthusiasm – they can be more conversely, they may be on the verge of determined and very often are able to get losing hope if they have gone through their way through difficult situations. many authorities with no progress or Another advantage of teamwork is resolution; they are unsure how much collective decision-making. Individual they can trust their lawyers and how lawyers may fear making very public or much they should reveal; they may feel damaging mistakes, but in a team, invisible and are likely under-informed, decisions are taken by the group and all not knowing what their rights are or what members share equal responsibility for they are entitled to; they can also be any mistakes. Lawyers participating in the frustrated or feeling powerless because group have also discovered that group

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they must rely on law enforcement When it comes to selecting a lawyer, authorities and lawyers. participants felt that a client should have the right to choose a legal aid lawyer from What does the client need from the among several private attorneys on duty. lawyer? As a starting point, if clients do However, just having the right to choose not know what they are charged with, is not enough, as a client may not be able they will need basic information about to select the best-quality lawyer because of what is going on. They will appreciate a lack of information. Thus, before detailed information about the law and granting clients the right to choose a legal the defense strategy, and want their aid lawyer, the state should make sure lawyers to be frank. While the lawyer that there is sufficient information should make no false promises, the client available to the client about his potential also needs hope for a good outcome. choices. Lawyers need to be accessible to their clients, showing loyalty to their clients Lastly, the breakout group addressed and encouraging trust in the justice questions of legal aid quality, an system. Clients are looking for lawyers especially difficult issue in countries who care about their interests, and who where legal aid lawyers are not paid will not judge them. And the client needs enough. For one thing, participants felt to know what choices he has, and which that a lawyer’s active representation of a choices may be better. The lawyer must client should be a good indicator of inform and advise the client about her quality. In Lithuania, for example, public options and their consequences, but the defenders chart the number of cases they final decision rests with the client. have handled, making note of complexity, number of motions and consultations, and amount of earnings. Participants also felt that qualitative methods should not be the only means of assessing quality, and that elements such as the lawyers’ passion and motivation should be taken into account. Outcomes, it was agreed, are not a useful indicator of quality. One suggestion was that one way to assess quality is the degree to which lawyers are advocating for their clients’ basic rights such as the right to personal freedom, to remain silent, to be treated as an individual in Participants listen to a question during a breakout group discussion. an individual case, and the presumption of innocence.

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Breakout Group #3: Paralegals and non-traditional methods of legal aid delivery facilitated by David McQuoid-Mason, Professor, University of KwaZulu-Natal, South Africa

Facilitator David McQuoid-Mason started cases they can help indigent people the group’s work by introducing the present their cases and collect the concept of paralegals. Paralegals are local evidence needed. They may work in people who know something about the prisons, as in a Malawi program where practical side of the legal system and paralegals regularly go through files with possess basic legal skills. They are not prison authorities, helping to determine lawyers, though they may be individuals which prisoners are eligible to be released who have been through law schools, but on bail. Paralegals also have an have not become certified “advocates”. educational role, teaching locals about the Most paralegals, though, are just ordinary legal system, producing informative people, with no formal legal education, pamphlets and booklets, and even who have been trained in giving legal training people to be able to teach other advice and information, as well as in people about legal rights. administration and legal education skills. Getting lawyers and They do not provide Combining legal knowledge government officials actual legal aid, but and local expertise, paralegals to work with they are able to can step into the gap between paralegals can be educate the public ordinary people and lawyers. difficult at first, as about law and how it they may take the affects their lives. position that paralegals are not qualified. However, Paralegals are mainly needed in rural paralegals help very poor people get areas, where people cannot afford private access to justice. Paralegals do not take lawyers, or cannot travel to cities where clients away from lawyers, and they do lawyers are located. Paralegals live in the not solve clients’ legal problems. Rather, local villages and towns, and know the they help bring clients to lawyers. local problems, so they can help bring Paralegals can help where lawyers and access to justice to rural people as well. government officials are unable to.

Paralegals may work for NGOs, law firms, Paralegals can also help lawyers talk to public defenders offices or trade unions; local people. Sometimes lawyers and they may be volunteers or law clinic government officials cannot explain legal students, or they may work directly for things in simple terms, or are not the government. They can provide interested in sharing information, or lack primary legal aid, helping clients assess the time to travel to rural areas. As a legal problems, and if necessary, refer result, rural people often do not know them to lawyers. Those working with what is happening or how a case is going. trade unions give advice about labor law, Paralegals can step into the gap between and can handle mediations and ordinary people and lawyers, and, using negotiations between parties. In other their legal knowledge and their local

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expertise, communicate information to the legal aid system, most of whom, again, are local community. located in cities and towns too far, physically and culturally, from the people Paralegals need to have strong practical who need their help most. In practice, legal skills in order, for example, to help Romany people living 200km away from a them interview people, take statements, city, in a segregated neighborhood, under and collect evidence. They need to be able incredible poverty, cannot really access to work with lawyers and government legal assistance. In short, there is a officials, as well as with local people. Also, missing link between the free legal aid they must have the skills to pass their offices and indigent people. knowledge to others, to educate people about the law. They will also need Paralegal education in Hungary was administrative skills, and knowledge of begun as a response to this problem. The using media, pamphlets, booklets, and the program trains Romany law students like to communicate legal information to from all law universities in Hungary to untrained people. Becoming a paralegal become legal and community consultants typically requires some specialized to help articulate the needs of the Roma. training, preferably with some in-service They do legal work, but also education training that involves working with other and mediation, with a priority on working paralegals, and there also needs to be a out solutions on the local level. There is a system of refresher courses or continuing year-long intensive training, with 30 education to keep up with changing law. people already trained, and another 50 However, it is possible for experienced people in progress. Some of the practical qualified paralegals to be able to train challenges at the moment include funding others to become paralegals. a program to keep paralegals employed after training period. Professor McQuoid-Mason invited Agnes Kover, a professor at ELTE University After Prof. Kover’s presentation, the Faculty of Law in Hungary, and director presenters took questions from the group. of the ELTE legal clinic, to give some more Some sought more information about the detail about what paralegal work really legal framework for paralegals in the means. A new legal aid system came into presenters’ home countries, because in effect in Hungary in 2004, but while it some countries paralegal programs would may have increased access for lower- run up against laws prohibiting anyone middle class people, the poorest people – but attorneys from providing legal aid. which in Hungary generally means the The facilitator noted that in his experience, Roma community, about 8 percent of the a distinction in such laws is often made population – are not being reached. The for free advice – that is, in some countries legal aid offices are located in cities or it is permitted for a non-lawyer to provide county centers, usually in a building of the legal advice at no cost, whereas it would court. This presents a major physical be against the law for a non-lawyer to obstacle for the very poor, who likely charge for providing advice. cannot afford to travel to the city, as well as a psychological barrier, as There was some concern that paralegals disadvantaged people may find it difficult may hold themselves out as lawyers, just to walk into the courthouse. something that can be a serious problem in rural areas, where many people will Another problem in the system is that actually treat the paralegals as lawyers. even if the client manages to access a legal Prof. McQuoid-Mason noted that such aid office, assistance is actually provided concerns can be addressed with the by private lawyers registered with the adoption of a Code of Conduct, which

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introduces professional responsibility include fact-finding, monitoring requirements. If paralegals violate the institutional practices, and using publicity Code of Conduct, they will lose their right to draw attention to the situation of the to practice. Roma. Their experience of the paralegal concept has demonstrated it to be a useful Participants also had further questions tool in assisting the most indigent people with respect to the training of paralegals. to access basic rights and to reach a level Prof. McQuoid-Mason responded that comparable to other citizens. training varies. For example, in South Africa three universities have a diploma in After Mr. Horvath’s presentation, the paralegal studies, in which students take a group divided into five smaller groups, to 6-month course and then spend 18 months discuss a list of questions regarding policy practicing in the countryside, supervised and practical questions in alternative legal by the village paralegal committee and service delivery. monitored by regular visits by trained lawyers. Training may also be done by In most countries, there is no framework NGOs. for paralegals, and no legislation regarding the delivery of free legal aid. In The second part of the breakout group the Central and Eastern European area, began with a presentation by Aladar and particularly in the former Yugoslavia, Horvath, president of the Roma Civil there are a whole range of groups that Rights Foundation. When the socialist need legal help – asylum seekers, victims economy collapsed in Hungary, of trafficking, international refugees, prejudices and racist actions against Roma returnees or displaced people, the increased dramatically, and some of the disabled, indigent persons, and children. As such there are many non-criminal legal issues that should be covered at state expense, such as human rights violations, pension cases, child support cases, land and property violations, labor law, consumer rights issues, and asylum and refugee cases. In some countries, customary courts – rural and traditional courts – can accommodate some of these types of cases, where there is no need for legal representation. In others, specialized courts such as consumer, family and juvenile courts could also help in Small-group brainstorming in a breakout session. accommodating other non-criminal legal aid cases of indigent people. most important work the Foundation did was to fight governmental exclusion There was wide consensus on the idea policies and defend the right of Roma to a that paralegals should be incorporated in home. Currently the Foundation employs and funded by national legal aid schemes. 5 lawyers, but most staff, such as Mr. Paralegals could be crucial in delivering Horvath himself, are teachers or social legal aid to target groups, and so should workers. Mr. Horvath explained he had be supported by sustainable government thought of himself as a civil-rights activist, funding. The participants’ response was but realized through the conference that more hesitant, however, with respect to he could also be called a paralegal. The whether legal clinics should be Foundation’s most important duties incorporated and funded within the legal

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aid system. It was felt that government One group suggested a state-administered funding might compromise legal clinics’ insurance system, which works as an independence, but if independence can be alternative to the traditional fully state- preserved, government funding will help funded scheme. Prof. McQuoid-Mason keep legal clinics sustainable. remarked that there is an insurance system in existence in South Africa, Lastly, the group briefly addressed some through which people pay a monthly fee, financial issues, such as what kind of fee which entitles them to a certain amount of structures could be used to enable lawyers free legal assistance, if needed. to take non-criminal cases for poor people.

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Breakout Group #4: Monitoring and research on performance on legal aid institutions facilitated by Richard Moorhead, Professor, Cardiff University, Wales

This break-out group addressed the issue Data collection from files. Files are of how to assess the quality of legal aid requested and carefully analyzed, often delivery, regardless of which system of along with follow-up questions. legal aid delivery has been adopted. Quantitative data are gathered on how Facilitator Richard Moorhead began by much time was spent on cases and how providing some background on his cases ended. It is important to be aware, current and recent research projects, many however, that files by themselves do not of which focus on assessing the quality of necessarily reflect the quality of the work, the performance of legal aid providers in as the review is necessarily limited by the United Kingdom. Several projects how files are kept. Although a reviewer analytically compare one method of might note that some steps were missing, delivery versus another, such as lawyers it does not necessarily follow that the legal versus non-lawyers, public defenders aid provider performed poorly. versus private practice, or specialists Observation. Researchers observe the versus non-specialists. Some projects conduct of legal aid lawyers by following focus on management issues, e.g., them in their work and recording how Community Legal Service Partnerships they have spent their time. Observations and referral networks. Some focus on are useful for getting information, but legal aid needs, such as identifying the interpreting the information will always legal problems that ordinary people be crucial. For example, how may a regularly face. subject modify his or her behavior when tape recorded? Any research encounters two basic Interviews. Interviews are useful for problems: which methods to use and what collecting qualitative information to questions to ask. These are defined by the clarify or supplement other observations. scope of the research and the balancing of For more comprehensive information, available time and resources. If the goal is interview data should be combined with to prove something, researchers must be data from case file review. clear about whom they are trying to Surveys. Quantitative data on client convince, and what the baselines and satisfaction is gathered, along with clients’ comparison factors will be. If the goal is to perspective on the service received. For explain something, the researcher needs to such surveys, specifically designed know what kind of information will help questionnaires need to be developed. explain: Will qualitative or quantitative Although surveys can be inexpensive and information needed? If the goal is to seem an easy choice, they require specific generate solutions, one needs to allocate technical knowledge, and carry the risk sufficient time and resources, and know that those surveyed will misunderstand with whom to engage. questions, provide inaccurate or incomplete responses, or fail to respond. Different methods of research on legal aid Focus groups. Group opinion legal aid delivery include: gathering can help develop quality standards. The interactivity of the focus

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group is an advantage over interviews, as Afterward, the participants separated into it allows participants to respond to one smaller groups to discuss various ways to another, but there is also a risk of assess quality. One group said that it individuals dominating discussion. Also, would find experts to conduct the focus groups yield only about 60 percent research for them. Another group said of the information that interviews that the quality of the lawyer’s typically provide. performance should be defined by the Peer review. Experienced attorneys, client himself. A third group focused on mostly drawn from outside the localities defining quality. They suggested a two- where the research is based, are employed part approach using two focus groups, to assess contractees’ casework files. It is one consisting of legal experts and the generally accepted in the legal profession other of clients. Both focus groups would that “peer review” conducted by persons develop best practice guidelines and with significant expertise in the relevant standards from their own perspectives field is the best means of evaluating the and understanding, which could then be quality of services. After reviewing files, compared and synthesized in order to peer reviewers can use their findings to create optimal quality standards. The last talk directly to the legal aid lawyer about group drew up relevant questions that certain changes that need to be made. This need to be answered, such as: Do we want method requires proper and consistent to research statics or dynamics? What are training for all reviewers, in order to the costs of the method used? Is the ensure comparable understanding of the outcome of a case an appropriate criterion issues evaluated. to determine quality? The outcome of a “Covert” research with “model” trial does not depend only on the clients. Model clients performance of the are people specially defense lawyer but also trained to pretend they The focus on a management on things such as the are clients seeking legal approach to quality assurance performance of the advice, in order to judge and other factors. covertly determine has improved the quality of Should comparative how a selected lawyer legal aid delivery in England research of private performs. Because of and Wales. lawyers versus public concerns about consent defenders be done? and invasion of Defendants’ wealth or privacy, it is important to use such poverty may impact how they are treated techniques with great care. Model clients by the respective lawyers. are often used to test legal aid providers by presenting them with a legal issue that In the second part of the breakout group, falls outside their area of specialization. In Mr. Moorhead discussed the UK order to compare delivery systems, the experience with monitoring quality of same model client needs to be sent to test legal aid delivery, starting from the different systems. question of what quality is. Is the notion of quality of an ethical nature? Ethical Mr. Moorhead concluded this brief requirements may vary by roles, such as introduction to individual methods by adversary, administrator or negotiator. advising those preparing to undertake What should the standard of quality be – legal aid research to consider carefully the should it be “excellence”, or is purpose of the research, the methodology “satisfactory” enough? What defines design, and the available sources. quality: the conduct of a case or its outcome? And lastly, what is the goal of measuring quality? Do we simply want

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information, or is it for specific licensing accreditation scheme has improved the purposes, or more generally for quality of the work of legal aid providers improving the system? Different goals – firms are better run, and file suggest different methods of evaluation. management improved – as well as the outcome of their work. In the UK, Mr. Moorhead explained, several different methods of monitoring Another quality assessment came out of legal aid have been used. In one example, the British government’s assumption of lawyers shadowed other lawyers during control over the legal aid system. In order their visits to clients in prison, and to encourage legal aid providers to raise evaluated them on those visits. Another their standards, a uniform scheme was monitoring exercise assessed lawyers on developed in which providers were the particular ideology of active defense assigned grades of quality such as driven by zealous advocacy. Lawyers “excellence”, “competence plus”, were judged based on the notion that the “threshold competence”. However, the prosecution should be challenged Legal Services Commission determined wherever possible. However, it was that only “threshold competence” would questionable whether this system was in be required, as it would have been too the best interests of the client. expensive to guarantee anything above that level. One scheme that has proved effective in actually improving quality has been the The Legal Services Commission has also process of accreditation. Accreditation addressed quality through the was originally introduced on a voluntary management system for legal aid lawyers’ basis for paralegal advisors who provided work. Overall, the focus on a legal aid, and later became a requirement. management-type approach improved The training teaches active defense how law firms were run, and positively techniques, as well as how to keep affected the outcome of their work as well. portfolios of work in which the lawyer has However, it was a bureaucratic and personally advised and assisted clients. expensive undertaking to for the Legal This is followed by critical incident tests, Services Commission to establish and interviews and advocacy assessment. audit a desirable management system. Solicitors are now required to apply for Another downside of this approach is that accreditation. They take courses and are it required a thorough and time- trained by providers approved by the Law consuming two to three years of Society and then sit a test at the end of the preparation. training. The introduction of the

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2ND EUROPEAN FORUM ON ACCESS TO JUSTICE FEBRUARY 24–26, 2005

Closing Session

Zaza Namoradze Director, Budapest Office, Open Society Justice Initiative Edwin Rekosh Executive Director, Public Interest Law Initiative

During the closing session, rapporteurs implement elements of public defender from each breakout group presented models. The notion of paralegals would highlights of the discussions that had have seemed even more removed, but occurred in the small groups, and offered now that there is an ever-widening any conclusions or recommendations that understanding of the need for effective participants had agreed upon. access to justice, several countries are experimenting with more non-traditional Afterwards, Zaza Namoradze and Edwin approaches in order to facilitate access as Rekosh, representing the organizations much as possible. that hosted the Forum, shared observations about the two-day event. In all, the work accomplished during the Both agreed that the discussions had second Forum resulted in an enormous advanced greatly from similar discussions exchange of information. The quality and held at the first European Forum on importance of the practical discussions Access to Justice in 2002, reflecting the that occurred not just during great degree of progress that has been presentations, but also on the margins of made on access to justice, particularly in the conference, was extraordinary and the countries of Central and Eastern impressive, and demonstrated the Europe. For example, in 2002, discussions tremendous amount of energy behind on public defenders may have seemed ongoing access to justice reforms in the irrelevant to Continental legal culture, but region. now many countries are beginning to

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About the Organizers

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The Public Interest Law Initiative (PILI) is a center for learning and innovation that advances human rights principles by stimulating the development of a public interest law infrastructure in the countries of Central and Eastern Europe, the former Soviet Union, and Asia.

Founded at Columbia University in 1997 with the support of the Ford Foundation, PILI established its new headquarters in Budapest, Hungary, in 2002. PILI continues to maintain a small office at Columbia, and it opened an office in Moscow in 2004.

PILI uses the term “public interest law” to refer to a wide-ranging set of law-based activities designed to promote and protect the public interest. PILI’s approach is to develop and support organizations and individuals who devote themselves to pursuing the public interest — an effort that is closely related to the development of civil society and the promotion and protection of human rights.

PILI conducts work in two principal areas: institutional reform, and training and education. In addition, PILI places a priority on the cross-cutting theme of combating discrimination, because of its fundamental importance to the very notion of public interest work.

The Institutional Reform Department supports the development of justice sector institutions that enhance the participation of a wide range of actors in pursuing the public interest. The Institutional Reform Program has three programs: Access to Justice, Law and Governance, and Legal Practice. In each case, institutional reform priorities, which address the greatest institutional impediments to public interest advocacy, are complemented by the capacity-building activities of the Training and Education Department.

The Training and Education Department aims to strengthen the community of legal professionals and activists who undertake public interest law activities, and through them, their respective organizations. The Training and Education Program also has three programs: Clinical Legal Education, NGO Advocacy Training, and Fellowship and Internship Programs. All Training and Education projects incorporate the input and expertise of professionals and activists from the countries in which PILI works.

Columbia University Budapest Law Center Szent István tér 11/c, 7th Floor, 1051 Budapest, Hungary Tel: +36 1 327 3878; Fax: +36 1 327 3879

Columbia University Moscow Law Center

ul. Myasnitskaya d. 48, of. 708, Moscow 107078, Russia Tel: +7 095 788 7654; Fax: +7 095 788 8650

Columbia University School of Law Mail code 3525, 435 West 116th Street, New York, NY 10027, USA Tel: +1 212 851 1060; Fax: +1 212 851 1064

For more information about the Public Interest Law Initiative, please visit www. pili.org.

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The Open Society Justice Initiative, an operational program of the Open Society Institute, pursues law reform activities grounded in the protection of human rights, and contributes to the development of legal capacity for open societies. The Justice Initiative combines litigation, legal advocacy, technical assistance, and the dissemination of knowledge to secure advances in five priority areas: national criminal justice, international justice, freedom of information and expression, equality and citizenship, and anticorruption. Its offices are in Abuja, Budapest, and New York.

The Justice Initiative is governed by a Board composed of the following members: Aryeh Neier (Chair), Chaloka Beyani, Maja Daruwala, J. 'Kayode Fayemi, Anthony Lester QC, Juan E. Méndez, Diane Orentlicher, Wiktor Osiatyński, András Sajó, Herman Schwartz and Christopher E. Stone.

The staff includes James A. Goldston, executive director; Zaza Namoradze, Budapest office director; Kelly Askin, senior legal officer, international justice; Helen Darbishire, senior program manager, freedom of information and expression; Julia Harrington, senior legal officer, equality and citizenship; Nadejda Hriptievschi, junior legal officer, national criminal justice reform; Stephen Humphreys, senior officer, publications and communications; Katy Mainelli, administrative manager; Benjamin Naimark- Rowse, program officer, national criminal justice reform; Chidi Odinkalu, senior legal officer, Africa; Darian Pavli, legal officer, freedom of information and expression; and Martin Schönteich, senior legal officer, national criminal justice.

E-mail: [email protected]

New York Budapest Abuja

400 West 59th Street Oktober 6. u. 12 Plot 1266/No.11, Amazon Street New York, NY 10019 USA H-1051 Budapest, Hungary Maitama, Abuja, Nigeria Phone: +1 212-548-0157 Tel: +36 1 327-3100 Phone: +234 9 413-3771 Fax: +1 212-548-4662 Fax: +36 1 327-3103 Fax: +234 9 413-3772

www.justiceinitiative.org

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