Action 2: retain instructing lawyers in trials

Action 2: retain instructing lawyers in trials

The ‘Interim instructing/co-counsel guideline’ in Guideline 4 have been made permanent.

The at-court trial instructing fees are paid on an hourly basis rather than by half days.

Instructing solicitors at trial guideline

At the start of 2013, we capped funding for an instructing solicitor, limiting their court attendance to two half days. This guideline provoked a series of applications to stay trials and ultimately a decision by the Court of Appeal in R v Chaouk, which emphasised the ‘critical importance’ of instructing solicitors and linked their availability to the concept of a fair trial.

After considering the Court of Appeal decision, we introduced an interim instructing guideline to ensure trials could continue.

For more information see Background to the consultation for delivering high quality criminal trials.

Why the interim guideline will become ongoing

Making the ‘Interim instructing/co-counsel guideline’ in Guideline 4 ongoing:

  • ensures that an instructor has prepared the case for trial or is experienced and well-versed in the facts of the case and the relevant law.
  • complies with the expectations of the Court of Appeal in R v Chaouk and set a standard around which Victoria Legal Aid can build accountability.
  • provides flexibility and enable practitioners, acting in their clients best interests, to choose between an instructor or co-counsel.

What happens next

We have provided guidance around the use of instructing solicitors to ensure they are only present as required. We have also provided documentation around the claim of instructing fees.

Practitioners will be required to record:

  • who is instructing
  • whether they meet the requirements in the guideline
  • whether they are an instructor or co-counsel
  • why an instructor was required to attend court.

Instructing solicitor fees

Why we introduced new fees

Paying instructing fees in hourly units rather than half days more accurately reflects the cost of claims and, in combination with documentary requirements, enables improved compliance and reporting around this expenditure.

The suggestion raised through the consultation to change the instructing fee received general support from stakeholders.

What happens next

The hourly rates are:

  • $134 in the County Court
  • $237 in the Supreme Court

to a maximum of five hours per day.

The hourly fees have been set at one fifth of the current full-day rate. This equates to the same rates currently paid for a full day in court.

The new arrangements were introduced on 12 January 2015.

See Table F – Lump sum fees for County Court and Supreme Court stage of an indictable crime matter.