“The previous government should be held accountable for disbursing such high fees to some privileged lawyers”

Legal Fees and Political Connections: A Growing Concern in Mauritius

By Lex

In some countries, legal fees charged by barristers and solicitors are exorbitantly high, often to an unreasonable extent. This issue is particularly pronounced in nations where lawyers and solicitors maintain close ties with, or enjoy the patronage of, the political leadership. These legal professionals are frequently the primary beneficiaries of lucrative contracts for government-related legal work, including services for parastatal bodies and state-owned enterprises.

Revelations in Mauritius regarding legal fees charged under the previous government for advice or other legal assistance provided to the State Trading Corporation (STC), the former Commissioner of Police, and the Gambling Regulatory Authority and other bodies suggest they may have been excessively high. Or are such fees simply considered the norm in the legal profession?  It would be remiss not to acknowledge that this contentious issue predates the previous government. However, it appears to have taken on a new dimension over the past 5 to 10 years.

Lex delves into the complexities of this vexing issue.

* Several concerning issues arise regarding the reliance of various government institutions, including parastatal bodies and state-owned enterprises, on external legal services – both locally and from the UK. These include seemingly exorbitant fees, the repeated appointment of the same legal professionals on a retainer basis or for litigation purposes, the retention of private legal counsels for public officials, etc. What are we to make of all this?

Any individual or institution has the right to retain a legal adviser, with fees discussed on a private basis. However, it is shocking to see the exorbitant fees paid to private lawyers by the STC, a parastatal body managed with public funds. The public had no say in allocating such high fees to private lawyers.

There is also a perception that some individuals closely associated with the previous regime were often retained, with notably high fees allocated to them. Was proper authorization from those managing the funds obtained? Who was responsible for selecting those legal advisers? All of this will need to be thoroughly investigated.

* High fees seem to have become the new norm, based on revelations about the charges by private lawyers to parastatal and State-Owned Enterprises. Is this acceptable?

As a rule, a government or semi-governmental department would first consult the State Law Office for legal advice and representation. State Law Officers do not require additional fees to represent the government, though reasonable fees may apply when representing a parastatal body.

Did the STC or the GRA consult the State Law Office before allocating substantial fees to private lawyers? Who authorized the STC, the GRA and so many other parastatal bodies to spend public funds as if they were privately owned? Was the amount of the fees negotiated beforehand?

* Should the government implement term limits, rotation policies, and fee caps for lawyers working with state agencies to prevent excessive billing?

Any semi-public body is free to retain the services of a lawyer. However, it seems that under the previous regime, among the lot a select few close to the PMO were also chosen, and there is little doubt that the previous government should be held accountable for disbursing such high fees to some privileged lawyers.

It would be wise for the new government to issue clear directives to all public or semi-public departments, stipulating that the State Law Office should be contacted first. If the State Law Office is unable to act for the institution, then a private lawyer can be retained, with fees discussed and negotiated. Additionally, it would be beneficial to establish a pool of highly experienced private lawyers, with their services retained on a rotation basis.

* It would seem there is no existing mechanism to regulate the legal fees charged by barristers and solicitors. Are such mechanisms effective anyway?

There is no official mechanism in place, and it’s essentially a free-for-all when it comes to legal fees. A lawyer might charge a few thousand rupees for legal advice or a court appearance, while others may demand millions for the same service. This disparity remains a mystery.

Some lawyers are treated like demigods, believed to be able to win any case. However, the Betamax case, which also involved many foreign lawyers and law firms, has proven this belief to be unfounded.

* There is also the issue of conflict of interest. Could policies be better enforced in the legal sector to address this concern effectively?

The Code of Ethics for lawyers outlines clear rules of professional conduct, and lawyers are bound to adhere to them. However, one might question how often this Code remains a guiding principle when financial gain becomes the primary focus. For some, the pursuit of substantial fees may at times overshadow ethical considerations.

* Are there international best practices that could be adopted to ensure ethical boundaries between legal professionals and political leaders?

It’s not merely a question of best practices but one of good governance and minimizing political interference in government departments and semi-government bodies. It is no secret that the previous regime exerted significant control over both public and private institutions, fuelling widespread concerns about billions of rupees alleged to have been mismanaged or squandered.

*Are there examples of successful reforms in other countries that could serve as models?

There are no set rules regarding legal fees. Some lawyers may charge a fixed fee, while others might request an initial fixed fee and then bill additional hourly fees based on the time spent working on a case.

* What role can professional legal associations play in ensuring accountability and ethical conduct among their members?

Well, we have the Bar Association for barristers and the Law Society for solicitors. Can these associations legitimately issue directives to their members on how fees should be regulated? It’s doubtful whether they can do that.

* It appears there are no rules against the retention of private legal counsel for public officials, such as the former Commissioner of Police. Does this case indicate a deeper issue between the political establishment and the State’s legal professionals?

The case of the former Commissioner of Police is unique. The issue was not so much the retention of private lawyers, but the complete erosion of the independence of the Office of the Director of Public Prosecutions (DPP). This process began after the 2014 general elections with the Prosecution Commission Bill. There was also an attempt to arrest the former DPP.

It is alleged that orders were given to the Commissioner of Police (CP) to ensure that no case went to the DPP, and that matters concerning individuals’ liberty should be handled by the CP. This resulted in a battle between the previous government and the DPP’s office, with the CP at the forefront, all at the expense of public funds.

* What about the fees charged by UK lawyers in cases for the Mauritian government and parastatal bodies? While they may seem exorbitant to the uninitiated, is it correct to say they are bound to adhere to professional rules?

According to guidance from a law firm in the UK, the fees are as follows

“There are two main ways in which barristers charge.

“On an hourly basis (similar to how most solicitors charge for their time). The hourly rate applied will be based on their level of experience, both in terms of the level of specialisation required and the length of time that they have been practicing. Barristers will record their time, and the bill will depend on how many hours the work takes.

“On a fixed fee basis. Most work undertaken by barristers is charged on this basis. A client will agree a fee in advance for the piece of work to be done – whether that is a hearing at which the barrister is to appear, or drafting of a particular document, or some other work.

“The most common form of fixed fee is a ‘brief fee’ which is the fee charged for a hearing. Brief fees will be calculated according to the length of the hearing; the amount of preparation required; and the seniority and experience of the barrister being briefed. For a hearing which is to last for a day or less, the brief fee will cover all of the preparation and attendance at court, and (in most cases) the time spent by the barrister in drafting an order to put the judge’s decisions into effect.”

In contrast, Mauritius has no standardized fee structure, with individual lawyers applying their own rules, leading to inconsistency in the legal market.

Mauritius Times ePaper Friday 27 December 2024