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The federal constitution stipulates that everyone must be able to defend themselves against injustice – even if it is not financially rosy. That is why the cantons pay lawyers who, to the best of their knowledge and belief, represent the needy before Justice. As long as you let them.
Zurich-based claim lawyer Soluna Girón often sees things differently: if the courts cut the fee for free legal aid so severely, “you only have a choice between working for free – or sloppy”. The latter makes the noble constitutional principle an empty slogan. For Giron “highly doubtful”.
His hat went up when he represented a client against an insurance company; it was about sick pay. A classic scenario for the lawyer: the small against the mighty, individual mask against the well-endowed legal department.
In the civil trial, after a number of correspondence and pleadings, a hundred pages of paper quickly accumulated, as well as a thick bundle of evidence, such as complicated medical reports. “I always want to do my job conscientiously, whether my client is rich or poor,” says Girón. That is the claim of a viable justice system and the claim in itself.
Rate reduced by two-thirds
So the lawyer invested time in carefully studying the files – 53.2 hours, as he later listed in his fee note to the Social Insurance Court of Zurich. This was way too much. Without justifying what work was unnecessary, the court reduced the compensation to 15 hours at 220 francs; this is the already reduced hourly rate in the free administration of justice. This effort would have been appropriate, it was said, more would not be rewarded.
Far too little, thought lawyer Giron. Such tight time budgets would in many cases deprive him of the freedom of action guaranteed by law to seriously exercise the rights of the clients. With the subsequent cut of more than two-thirds, it seemed to him that he had crossed a red line, in his view a violation of the constitution. Girón had the case reviewed in federal court in 2022.
The verdict was sobering, “a non-decision”. The Federal Supreme Court avoided taking a position in a formalistic way, says lawyer Girón. In fact, the ruling is somewhat stilted that it “is not the job of the highest court to check the necessity of individual items of a lawyer’s fee”. As a result, it is the subdistrict courts that make the final decision on the remuneration of the free legal assistance providers.
“Depends on who judges”
Explosive: Practically at the same time as the Girón case, the Federal Criminal Court heard several almost identical objections to decisions on austerity in Aargau. Unlike in Lausanne, the highest judges in Bellinzona drew the red card. Her verdict in summary: Decreases of 50 percent and more are arbitrary and would partially preclude an effective defense.
Soluna Girón reluctantly accepts that his complaint was rejected without such a position. But that’s not the end of the problem, he says. The problem with the problem: It’s hard to grasp.
When, where and why is the lawyer’s fee reduced, in some cases significantly? The lawyers and associations surveyed do not see a clear picture. There are major differences between cantons, jurisdictions and individual courts. “Sometimes it even depends on which judge within the same authority assesses the application,” said lawyer Melanie Aebli, board member of the Democratic Lawyers of Switzerland.
Lost in the jungle of the justice system
When courts take state-paid lawyers under their wing, it is often due to a lack of practical relevance. At least that is the opinion of legal scholar Isaak Meier, who, as an expert in civil procedure law, often deals with questions about access to justice: “For judges who have never worked as lawyers themselves, it is sometimes difficult to find the right assessing the workload at the front.”
Especially in the field of free legal services, clients often get completely lost in the jungle of justice, for example in asylum law, which requires the lawyers to do a lot of clarification – “invisible” work, but essential for sound representation.
This article is from “Observer” magazine. More exciting articles can be found at www.bewachter.ch.
This article is from “Observer” magazine. More exciting articles can be found at www.bewachter.ch.
In all this, the subdistrict court judges must exercise a certain discretion to check whether the legal advisers really only make the “necessary and necessary effort”. All courts requested by the observer refer to this obligation. Even the social security court of Zurich, which has made massive cuts in the Girón case, is not left behind with attacks.
It replies in sec: “When determining the compensation, we base ourselves on the legal provisions and the relevant jurisprudence.” In 2022, the court handled 122 cases with free legal aid and spent CHF 286,992 on them.
«A functioning judiciary can never be profitable»
Such precise figures are rare. Where there are possibilities for comparison, it turns out that the administration of justice is expensive, also in the free space. In 2017, 1,793 civil proceedings with free legal aid were conducted in the canton of St. Gallen in the two lower courts for 2.7 million francs, five years later fewer cases (1,540) cost much more (3.7 million). This is also the case in the canton of Lucerne: between 2017 and 2022, the number of cases fell from 1555 to 1327, costs rose from 3.6 to 5.6 million.
“A functioning judiciary costs money and can never be financially profitable,” says René Rall, secretary general of the Swiss Bar Association (SAV). He suspects that the general pressure to save is the main driver of the wage cuts and is concerned about “this dangerous development, initiated by politics, which directly or indirectly hinders access to justice for the less fortunate”. In order to raise awareness of these dangers, the association has been holding talks with those involved in the judiciary for some time.
It’s an open secret that lawyers don’t rush for mandates with free legal services. However, if they have to take into account that their effort is only partially compensated, the attractiveness decreases further. Who does those jobs then? Only the superficial or the particularly benign legal representatives? A dilemma for René Rall anyway: “Only relying on the lawyer’s conscience is a highly unsatisfactory option.”
Source:Blick
I am Liam Livingstone and I work in a news website. My main job is to write articles for the 24 Instant News. My specialty is covering politics and current affairs, which I’m passionate about. I have worked in this field for more than 5 years now and it’s been an amazing journey. With each passing day, my knowledge increases as well as my experience of the world we live in today.
