Additional counsel proposals raise concerns
Proposals to approve legal aid payments for co-counsel only in “extraordinary circumstances” means juniors will never be seen on cases, the New Zealand Law Society says.
In comments to the Ministry of Justice on its High Cost Case Management consultation paper, the Law Society says the threshold for approval of additional counsel is too high.
The paper says all costs associated with expert witnesses or additional counsel must be sought in advance, with full justification being outlined at the earliest possible stage. In response, the Law Society says that if an issue arises during trial, it can be very difficult to fill out a new estimate.
“For example, the Crown’s expert witness departs from his brief requiring defence to unexpectedly have to call defence expert witness. There needs to be a recognition that some matters are simply outside counsel’s control and cannot necessarily be foreseen.”
The paper covers the proposed process for high cost case management under changes to the criminal legal aid payment regime which will come into force in October 2011. The new system will introduce a fixed fee framework for 95% of legal aid grants.
Providers will no longer by paid by the hour, but will be paid fixed fees for completion of specific activities.
The proposed High Cost Case Management (HCC) process seeks to identify and manage all criminal cases which have the potential to become high cost from the outset. Funding decisions would be approved on a staged basis in advance of any work being undertaken by lawyers.
The Law Society says it agrees with the list of offences which the ministry proposes are automatically placed under HCC. However, it says it is unclear whether homicide offences extend to charges such as careless/dangerous driving causing death. If not included, these probably should be because such cases can be complex and time consuming.
The Society says the consultation paper states that other possible attributes which could lead to inclusion within HCC might include all cases where there are three or more accused, irrespective of the charges faced.
“It is unclear as to why, in the case of joint accused, the threshold for possible discretionary inclusion in HCC has been set at three accused rather than two,” it says. “Defence lawyers are just as likely to have a substantive cut-throat argument, or applications for severance, or for joinder, or ‘mixed charging’ … on their hands with two accused as with three.”
While the Law Society says it agrees with the three characteristics listed by the ministry to identify cases for inclusion with HCC, it believes there are a further four which should identify cases for HCC management.
These are all criminal cases where there are a large number of witnesses, where witnesses require interpreters or clients require interpreters, where there is a significant amount of disclosure, and where trial is expected to last more than two weeks.