Law Society seriously concerned at criminal legal aid fixed fee proposal
The legal profession firmly believes that a proposed fixed fee system for criminal legal aid is unsustainable, the New Zealand Law Society says.
The Law Society says the proposed fees do not allow for the necessary business infrastructure to support lawyers in practice and are likely to lead to an increase in “car boot lawyers”.
In its comments to the Ministry of Justice on the proposed fixed fees framework, the Law Society says it is particularly concerned as the regulator of the legal profession that the proposed fees are too low. It says this will put lawyers at serious risk of breaching professional obligations and prevent them from complying with client care obligations.
“The Law Society has serious concerns regarding the impact of these fixed fees on: access to justice, the right to a fair trial, avoiding miscarriages of justice, and the efficient administration of courts,” the Law Society response states.
The comments paper provides details of the impact the Law Society believes the fixed fees proposal would have if implemented in its current form. It says it has formed its viewpoints after wide consultation with the legal profession about the fixed fees framework.
“The trend of withdrawal and discontent of both senior and quality legal aid providers in New Zealand is likely to become more widespread if the proposed fixed fees at these levels are implemented,” the Law Society says.
“The proposed fees do not adequately reflect the increased obligations on defence counsel and the importance of their role in the administration of justice and access to justice in the New Zealand criminal justice system.”
The comments paper says there is a real risk that the system will fail in the provincial areas, leading to serious access to justice issues. The Ministry of Justice has already said that it would not be economically viable to introduce the Public Defender Service in these smaller areas.
Competent lawyers will neither work for free nor take a case where they cannot adequately represent their clients by arguing properly available pre-trial matters.
“The judiciary will be faced with the Crown seeking to admit evidence which should be challenged and the Court will have no assistance from the defence in what is supposed to be an adversarial system,” the Law Society says.
“There must be equality of arms. If these fixed fees apply to defence, then the defence is limited as against the Crown. The Crown is being funded to argue matters that the defence are not funded adequately to respond. A fair trial is not possible in such a situation.”
The Law Society also says that the level set for appeals to the High Court is so low that most lawyers will simply stop doing High Court appeals. This will see an explosion of self-represented appellants, which will take considerably more judicial time.
In its comments paper, the Law Society makes a number of recommendations on how the fees should be calculated and managed by the ministry. It notes that the ministry faces a dilemma in that it has been instructed to improve the quality of legal aid providers but without sufficient funding to pay for a quality service.
“While the ministry has been concerned about how it will rid the system of poor quality lawyers, the most important question – how can good quality legal aid providers be encouraged to stay in the system? – has been neglected,” the Law Society says.
The comments paper concludes by noting that the Law Society supports the significant work the Criminal Bar Association is doing in preparing detailed feedback in relation to the proposals. The Law Society also says that it would welcome the opportunity to discuss its “very significant concerns” with the Ministry of Justice.