Can a legally aided person choose his lawyers under Legal Aid?
According to Section 13 of the Legal Aid Ordinance, where a legal aid certificate is granted, the Director of Legal Aid may assign the Department’s in-house lawyers to act for the aided person in any proceedings, or assign lawyers selected by the Director or by the aided person himself if he so desires. Therefore, when a person applies for Legal Aid, he may in fact request the Director of Legal Aid to assign lawyers nominated by the applicant to represent him in legal proceedings.
Speaking of criminal proceedings for which Legal Aid is granted, an aided person, when he applies for Legal Aid, may request the Director of Legal Aid to assign lawyers nominated by the aided person to handle his criminal case. On the other hand, in relation to civil proceedings for which Legal Aid is granted, an aided person may only request the Director of Legal Aid to assign lawyers nominated by the aided person to handle his civil case when the Director has decided not to assign the case in-house.
Even though an aided person may request the Director of Legal Aid to assign lawyers nominated by the aided person to represent him in legal proceedings, not all lawyers can be assigned legal aid work by the Director. To be eligible for handling legal aid work, a lawyer must meet certain criteria, e.g. being on the Legal Aid Panel, being in active practice, satisfying the minimum experience requirement specified for the relevant area of work, not exceeding the limit on assignments of legal aid work (and/or costs and fees paid or payable for such work) in the past 12 months, etc.
If the lawyers nominated by the aided person meet the selection criteria prescribed by the Legal Aid Department, and such lawyers are capable of handling and have the time to undertake the aided person’s legal aid case, in general, the Director of Legal Aid will respect the aided person’s choice of legal representatives. However, if the Director of Legal Aid is of the view that the lawyers nominated are not suitable to handle the aided person’s legal aid case, the Department will, keeping in mind the aided person’s interests, discuss with the aided person’s his choice of legal representatives, with the view to assign more suitable lawyers to represent him in legal proceedings.
In Desmond Keane v. Director of Legal Aid (CACV 49/2000), Desmond Keane SC appealed against a dismissal of an application for judicial review regarding the Director of Legal Aid’s refusal to assign a lawyer nominated by an aided person to represent her in legal proceedings. The Court of Appeal recognized in this case that the Director of Legal Aid had an obvious interest in ensuring that legal representatives assigned to Legal Aid cases were suitable, and in advising aided persons that their choice of legal representatives were unsuitable and that other more suitable lawyers should be assigned.
If necessary, you can also apply for legal aid. Ms. Ngan is a member of the Legal Aid Department Penal for Criminal, Divorce/Family Law, Employees’ Compensation, Personal Injury, Medical Negligence, and Land Disputes. If legal aid is approved, the aided person has the right to choose a lawyer to represent.