Quick action on legal aid
As promised, the Government reacted very quickly to Dame Margaret Bazley’s final report into her review of the legal aid system, which was released on Friday 27 November (after the last LawTalk for 2009 had been printed).
As well as those regarding the Legal Service Agency (LSA), Dame Margaret’s 86 recommendations include bulk funding of legal aid provision to groupings of lawyers headed by senior lawyers, an accreditation (and re-accreditation) system for lawyers to be providers and an expansion of the Public Defence Service (PDS). Her report, Transforming the Legal Aid System, is available at www.beehive.govt.nz/sites/all/files/Legal%20AidReview.pdf
The minister’s response
At the report’s release, Justice Minister Simon Power said he was deeply concerned by Dame Margaret’s findings and promised urgent action.
On Monday 30 November, he announced that the LSA would fold in to the Ministry of Justice and that an independent statutory officer would be appointed to oversee the granting of legal aid and the running of cases by the Public Defence Service.
He also accepted the resignations of four members of the LSA Board and cut board numbers from six to four. Retired High Court Judge, Sir John Hansen, was appointed to chair the new board, with the other new board appointee being Wellington company director John Spencer. They join existing board members Jane Huria and Ross Tanner, who were appointed in September 2009.
The Minister also announced that a further review of the quality of services provided by legal aid lawyers and the disciplining of poorly performing lawyers would be held in two years’ time (from 27 November) and not three years as recommended by Dame Margaret.
This has potentially serious implications for the NZLS as Dame Margaret said that if the issues she had identified had not been resolved by the time of the review, then the Government should institute an independent regulator of the legal profession.
On Tuesday 8 December, the LSA announced that it had disestablished its chief executive role and that the incumbent Tim Bannatyne would end his employment on 18 December. He has been succeeded by a transition manager, Stuart White, seconded from the Ministry of Justice where he is the General Manager of Special Jurisdictions.
By 18 December, the Government had also decided to:
- replace the Legal Aid Review Panel with a Legal Aid Tribunal administered by the Ministry of Justice;
- work on a streamlined system for lower-cost cases;
- expand the PDS into Auckland, Wellington, Hamilton and Christchurch;
- trial other models of service provision, including tendering and contracting with senior lawyers; and
- make provision for the ministry to determine criteria for accreditation of lawyers as legal aid providers, and establish panels to consider accreditation.
The NZLS response
The NZLS too has been moving quickly in response to the report.
The release day proved extremely busy for the society, which needed to digest the report (it had not received an advance copy), discuss its position, prepare and issue a media release, and try to keep practitioners informed while responding to constant media requests for comment, particularly from radio and television.
In its media release and comments, the NZLS noted that the report reflected much of the position it had taken in its submissions to the review. It was crucial, the NZLS said, that the changes resulted in an efficient system with legal aid provided by experienced and competent lawyers.
Expressing concern about lawyers who might not be performing adequately, the society stressed, however, that it could invoke its complaints procedures only if it was given concrete evidence and not just anecdotal comment.
The pressure did not let up in the following week, particularly with the focus on the quality of legal aid providers operating at the Manukau District Court, which drew a disproportionate share of the limelight.
Because of concern about the unbal-anced media reporting, NZLS President John Marshall QC issued a further media release on 1 December taking issue with that imbalance and reiterating that the great majority of legal aid lawyers were highly competent, and doing a professional job in often difficult circumstances and for inadequate remuneration.
He also visited the Manukau District Court on Wednesday 2 December. After meeting about 20 local lawyers, a prosecutor and Judge Blackie, John Marshall said Dame Margaret’s statement that I have been told that up to 80% of lawyers practising in the Manukau District Court could be gaming the system was clearly wrong, and grossly unfair to local lawyers. There was extensive radio and television coverage of the president’s visit to the Manukau Court and his subsequent comments.
Chief District Court Judge Russell Johnson also spoke out in defence of the Manukau District Court and local lawyers. The court, he said, was performing with distinction and much better than many.
"Ministry of Justice figures show a significant lift in productivity over the last three years." While summary crime had increased by 27%, the court’s disposal of cases was greatly in excess of that at 39%.
He described the Manukau Court as one with a very high workload that had done a magnificent job in meeting and sometimes surpassing the demands made of it. "The contribution of the legal profession to this success cannot be overlooked."
On 3 December, John Marshall emailed all lawyers outlining the situation and the NZLS position. He asked practitioners to provide the society with the details of any unacceptable practices as was, in fact, required under their rules of conduct.
He also said the NZLS would be work-ing closely with the Government on the changes where possible and noted the pressure on the society to resolve quality and competence issues within two years.
"If we fail, we are under notice that the Government will step in and strip the profession of the regulatory role we have under the Lawyers and Conveyancers Act. That outcome would strike at the very heart of a strong and independent profession. It would damage our capacity to promote the proper administration of justice and to defend liberty."
Within the next week, John Marshall and NZLS Executive Director Christine Grice had also met Sir John Hansen, and there have been subsequent meetings with him, with Stuart White and with Ministry of Justice officials.
At its meeting on 11 December, the NZLS Board agreed to the formation of a small advisory group comprising John Marshall, president-elect Jonathan Temm and Christine Grice. That group will report to the board regularly, and has authority to engage advisers, including NZLS Criminal Law Committee Convener Jonathan Krebs and the society’s Legal Services Committee.
The intention is to achieve, in two years’ time, a much-improved legal aid system in which the Government and the public could have confidence.
The Board agreed that key points would be:
- a cooperative relationship between the NZLS and the Ministry of Justice;
- effective and consistent operation of the Lawyers Complaints Service;
- appropriate application of NZLS resources as required.
The LSA Board and Ministry of Justice officials are moving to effect changes as quickly as possible. The NZLS is involved in this process.
The society has also asked the public, lawyers and judges to let it know of any activities by legal aid providers that are of concern so that the society can invoke its complaints procedures.
"We have told the Government and the LSA that we want to move as quickly as possible to ensure that lawyers doing legal aid work are competent," John Marshall says. "This includes having the LSA set stricter criteria for providers and ensuring that both existing and new providers meet those criteria."
LawTalk 743, 1 February 2010