Ten Lessons for Legal Aid Contracting from Chile
Roger Smith
This article supplements the comprehensive account of public criminal defence in Chile given by a Chilean public defender, Carolina Rudnick, in the last edition of the ILAG newsletter. Chile has, since 2000, established a whole new system of criminal defence based on what traditionally would have been called the ‘mixed model’ – a combination of salaried public defenders and contracted private practitioners. Although countries like the UK are used to having a lead position in the development of publicly funded legal services by virtue of their relatively large spend, the case of Chile illustrates how an upcoming jurisdiction, unencumbered by history, can develop new approaches that merit wider consideration by other countries.
The interesting thing in Chile, from the perspective of a country like the UK which trembles on the edge of contracting legal services by competitive bidding, is to ask what lessons which might be drawn from its experience with contracting. Unlike the UK, the Chileans have just got on with it instead of dithering. They had the advantage of implementing a new post-dictatorship system seen as part of a new democratic constitution. The detail of their contracting arrangements indicate that Chile has tried to identify the potential problems and to address them. Its response merits consideration, particularly as it becomes clear that the widespread use of contracting for public services raises problems that its more gung-ho advocates have, in many cases, failed to address. Thus, the UK has experienced farcical events such as the collapse of the bidding process for train franchises.
So, what lessons might Chile have for the rest of the world?
- Protect against potential default by the contractor.
The Chilean state has a common on-line bidding process for all government services, including the public defender. Bidders have to create an account in order to bid and sometimes have to pay for the privilege. Those bidding for public defender contracts have to put up a small sum (currently about £30 per projected post) as a ‘guarantee of the seriousness of the offer’. In addition, a further percentage (6 per cent of the whole contract sum) is held back from each payment actually made.
2. Demand personal commitment by each individual lawyer involved
Even when the bid is made by a collective body, each individual lawyer has to affirm their acceptance of its terms and their commitment to the contract.
3. Specify the minimum number of positions and maximum number of cases per lawyer at any one time
The contract seeks to guard against the provider cutting the number of staff and raising caseloads on the remainder by specifying minimum numbers of people and maximum numbers of cases. In this, it is, therefore, giving force to the kind of protections against overwork for which organisations like the American Bar Association have battled in the United States.
4. Specify workplace requirements
The contract has detailed specifications in relation to the offices of those providing public defence. They must be accessible to clients. Indeed, the maximum distance of the office from the court is spelt out. So too is the minimum dimensions of the waiting room and other office requirements such as the provision of internet and computer systems.
5. Specify experience of staff
The contract requires staff to have certain levels of experience, including secretaries and of the lawyers undertaking certain types of cases. There are provisions allowing only a specified number of substitutions of staff during the contractual period.
6. Be tight on bid numbers
The numbers of cases to be undertaken is stated, as you would expect. One feature of the Chilean system is that the private practitioners can be supplemented by salaried defenders. As a result, the contract can be specific about the number of cases contracted because any additional numbers can be mopped up by the salaried lawyers.
7. Recognise experience in the bid process
The bid process incorporates a formula by which a price quoted is adjusted to reflect the experience, great or small, of the nominated lawyers providing the service. Thus, there is an attempt to maintain a degree of experience within the system. Chile’s system of legal self-regulation was demolished during the Pinochet dictatorship and has not been reinstated. As a result, the Bar Association has no quality control over lawyers and there is no requirement for annual registration or even professional indemnity insurance. To counteract such a free market approach to legal services, there is, by contrast, an entry test for those wishing to provide public defence.
8. Specify quality criteria
Chile has the variety of quality assurance mechanisms specified in Carolina Rudnick’s paper eg peer review and inspection, statistical reporting, CPD requirements. Among the most interesting aspects of this are the statistics. There is a central computer system which monitors detailed compliance with specified requirements such as acquittal rates, reductions obtained on prosecution recommendations for sentencing, attendance at prisons etc. Chile takes a robust view on statistics and, to what would be the horror of UK lawyers who could advance any number of reasons for the inappropriateness of some of its statistical requirements, even pays a bonus for an above average acquittal rate.
9. Ensure vigorous inspection by respected reviewers
Computer systems of monitoring performance are initially based on self-reporting but this is supplemented by a periodic inspection of a number of files in depth, usually about 40, in which clients are consulted and physical files examined to ensure, for example, that clients have signed to show that a prison visit was actually made. In addition, the inspector listens to tapes of court hearings to check the quality of advocacy. The inspectors are, themselves, generally former public defenders and are conducting a peer review process which means that this is more sensitive than it would be if seen as a more bureaucratic exercise.
10. Remember that systems must be run by humans not robots
A rather heartening aspect of the Chilean system is that, although it depends upon the specification and monitoring of masses of data, an important role remains for managers within the central public defender office who have the role of ensuring that the system works well; individual lawyers are getting an appropriate balance of cases; and that allowance is made for any individual factors that explain statistical variance. In addition, the central public defender office puts on common training for all public defenders, salaried or contracted, to encourage standards and to build morale.
