Unreasonable behaviour by persons in receipt of legal services
Reg. 9(3)(c) and (e)
Unreasonable behaviour by persons in receipt of legal services
In addition the Board may terminate legal services on the basis of the person’s behaviour including where it considers that the person is behaving unreasonably in the context of the court proceedings. It is considered that there are two particular aspects to this namely:
• the person’s behaviour in their general conduct
• the person’s approach to, or instructions in, the court proceedings.
Unreasonable behaviour – general conduct
This first type of unreasonable behaviour applies generally to the general conduct of the legally aided person, particularly including (but not limited to) the approach the person takes to dealings with the Board and its staff. The Administrative Procedures Handbook gives examples of what might constitute unreasonable behaviour. Effectively these examples apply to situations where the person, by their behaviour, effectively places the health and safety of the staff of the Board – or indeed, their own health and safety - at risk; acts in an abusive fashion towards staff or other persons involved in the conduct of their case or other parties to the proceedings; or makes demands on the time and resources of the Board far in excess of what their case requires (for example, constant phone calls or excessive correspondence).
These situations described in the Handbook are provided by way of example only and in determining the unreasonableness of any behaviour regard has to some extent to be had to the nature of the issue that is the subject matter of the dispute. For example it is acknowledged that persons who are facing applications to have their children taken into care are likely to be experiencing a number of problems and to be very emotional about the prospect of losing the care of their child. It cannot be expected that their behaviour will necessarily match the behaviour of for example a client with a plaintiff personal injury case. This is not to say that legal aid will never be terminated in such circumstances – the Board will always have regard to any threat to the health or welfare of its staff in such instances.
Unreasonable behaviour in the conduct of the proceedings
It is possible for the person’s approach to the proceedings to constitute behaviour that is considered unreasonable. For example if in a private family law dispute that is likely to require significant resources, the person indicates that they will not entertain any settlement and they insist on bringing the matter to a conclusion through the courts, this could constitute unreasonable behaviour particularly if the other party is willing to negotiate.
Examples of unreasonable behaviour in the conduct of the proceedings might include:
• Unreasonably refusing to consider alternative dispute resolution options, such as mediation.
• Repeated failure to accept the advices of their legal representatives
• Insisting on pursuing a matter to trial where there is a reasonable settlement of the matter offered by the other party (and providing that the legal representatives have recommended the settlement).
• Insisting on the retention of a particular expert or Counsel when the solicitor is aware that there is a better qualified or a more appropriate person available which would better assist the client’s case (e.g. because the particular expert or Counsel is a relative or friend).
• Giving instructions to a solicitor or barrister which would require the solicitor or barrister to act against professional ethics or to violate any provision of the Guide to Good Professional Conduct for Solicitors or the Code of Conduct for the Bar of Ireland.
• Giving instructions or otherwise acting in such a way that, under the provisions of the Guide to Good Professional Conduct for Solicitors the solicitor would be required to come off record or, under the provisions of the Code of Conduct for the Bar of Ireland the barrister would have to withdraw from the matter.
• Giving instructions to a solicitor or barrister to do anything illegal.
• Attempting to use the Board or any of its staff to facilitate the commission of a money laundering or any other offence.
• Insisting on pursuing an adjudication of legal costs with the other party over a relatively small amount in dispute. As an indication of what a “small amount” would be; this should be defined as an amount in dispute which is either less than or not substantially in excess of the costs of the adjudication including any costs accountant’s report that might be commissioned. This only applies in the case of a dispute between the legally aided person and the other party and does not apply in the case of a dispute between the Board and the legally aided person.
As with the list of examples in connection with general behaviour this list is not exhaustive.
Prior to seeking withdrawal of legal services
In both types of circumstances the general approach should be that the solicitor writes to the client warning them that their behaviour may lead to the withdrawal of legal services. The person is therefore afforded the opportunity to desist from the behaviour. There may be circumstances in which the behaviour is such that it is appropriate to move to the withdrawal process without warning.
When a solicitor makes an application to terminate the legal aid certificate the solicitor should in general write to the person informing them that they have
made the application. Again there may be circumstances where it is not appropriate to do so e.g, where the person is posing a physical threat.
Circumstances where Legal Services considers initiating the procedure
It should be noted that neither the Act nor Regulations require an application by the solicitor for the withdrawal procedure to be instigated.
There may be circumstances where it is appropriate for Legal Services to initiate the procedure without a submission having first being made by the solicitor. This may occur where, for example, the withdrawal process is as a result of information supplied by a person other than the solicitor, where unreasonable behaviour is directed towards Head Office staff, or Legal Services deems that the client is behaving unreasonably in the conduct of the proceedings. For example, one particular circumstance that has occurred from time to time is a situation where a third party supplies Legal Services with information regarding a client’s means and following investigation that results in the client being deemed financially ineligible for legal services.
It should be noted that Regulation 9(3)(c) specifically requires the Board to be “satisfied by the report of the legally aided person's solicitor that the certificate should be terminated” and that obviously requires a report from the solicitor before a decision to terminate on this ground can be made.
Where Legal Services considers forming an intention to withdraw legal advice or terminate/revoke a legal aid certificate, other than on foot of a submission from a solicitor, the following modifications will apply to the general procedure:
• At the outset, the officer considering initiating the withdrawal procedure will contact the client’s solicitor and advise them of the reasons (grounded in the Regulations) why they are considering forming an intention to terminate/revoke the legal aid certificate or withdraw legal advice.
• If the solicitor is in general agreement with the reasons offered by Legal Services, the procedure should continue from step 1 and the legally aided will be offered an opportunity to desist from the behaviour concerned.
• If the solicitor does not agree with the reasons, or does not agree generally that the legally aided persons behaviour is unreasonable, they should set this out fully in writing to Legal Services, who will take the solicitor’s report into consideration in deciding whether or not they have formed an intention to terminate/revoke the legal aid certificate or withdraw legal advice. If they form such an intention the procedure continues from step 3.
• It is possible for Legal Services to form an intention to withdraw legal services because of information supplied by a person other than a law centre. When this occurs the law centre should be provided with a copy of the correspondence, unless, in the opinion of the decision maker, there are strong reasons not to do so. The procedure starts from step 3 and the client should be advised to communicate through their solicitor unless it is inappropriate in the circumstances to do so.
• Following the “show cause” period, the ultimate decision whether or not to terminate the certificate will be taken by a decision maker in Legal Services at a higher grade than the one who originally took the decision to initiate the procedure.
• All reviews of decisions in such cases will be by the Assistant Director, Legal Services, or the Director of Strategy and Decision Making.
The procedure for withdrawal of legal services
1. Where the reason for the withdrawal of legal services in unreasonable behaviour, the person will be warned in writing that their behaviour may lead to the termination of legal services. The person is therefore afforded the opportunity to desist from the behaviour. There may be circumstances in which the behaviour is such that it is appropriate to move to the termination process without warning.
2. The solicitor should make a submission to Legal Services, using the templates on EOS, and addressing in full the following matters:
a. Stating that they are recommending the revocation/termination of the legal aid certificate or withdrawal of legal advice, as appropriate.
b. Giving a detailed account of the circumstances that are giving rise to the recommendation to withdraw services, including a full account of any unreasonable behaviour.
c. Giving the ground in the Regulations under which legal services should be withdrawn.
3. Legal Services will consider the application. If the decision maker forms an intention to withdraw legal services, they will write to the client informing them of the fact that:
a. An intention to withdraw legal advice/revoke/terminate the legal aid certificate has been formed.
b. The ground (citing the relevant provisions of the Act/Regulations) that this step is being taken.
c. The reasons why the step is being taken – the contents of the letter from the solicitor (or third party) will be substantively restated, where appropriate.
d. The fact that the client will have thirty days to respond to this letter, either directly or through their solicitor showing cause as to why the certificate should not be revoked or terminated or legal advice withdrawn.
4. If no response is received, or the response from the applicant does not show cause, Legal Services will write to the client advising them that:
a. legal services have been withdrawn with effect from a specified date or that the certificate has been revoked
b. The grounds and reasons for the withdrawal of legal services
c. The fact that the applicant’s response, if one was received, was taken into account when making the decision
d. The applicant’s avenues for a review or appeal
e. If the certificate is revoked, what the cost implications are for the client
Where there is no breakdown in the client-solicitor relationship and communications are through the solicitor they should remain through the solicitor. However, it is common, in circumstances where withdrawal of legal services is contemplated for the client-solicitor relationship to have broken down completely. In such cases Legal Services will correspond directly with the client and copy the law centre on all correspondence unless it is inappropriate for it to do so.
Note that it is not possible for an applicant to review or appeal an “intention” to the formation of an intention to withdraw legal advice, or to revoke or terminate a certificate. The review and appeal procedure only comes into play once the final decision to revoke, terminate, or withdraw is made.
In cases where the client fails to give instructions in the sense that he or she is no longer in contact with the Board it is considered appropriate to close the file. The solicitor should notify Legal Services where counsel has been authorised / retained in order that a proper record can be kept of outstanding fees to counsel.