New Zealand Law Society - Client should have been told about legal aid eligibility

Client should have been told about legal aid eligibility

Published on 8 March 2019

[All names used in this article are fictitious.]

Failure to alert a client that she may have been eligible for legal aid constituted unsatisfactory conduct by a lawyer, a lawyers standards committee has found.

The lawyer, Omer, acted for Ms Wegg in an action against her employer. During the course of the case, payment of the law firm’s fees became an issue and Ms Wegg also became unemployed.

Rule 9.5 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 reads: “Where a client may be eligible for legal aid, a lawyer must inform the client of this and whether or not the lawyer is prepared to work on legally aided matters.”

The standards committee raised an own motion investigation into Omer’s compliance with rule 9.5.

In her response to the committee, Omer said that a family member of Ms Wegg had undertaken to pay the fees and as at the time Ms Wegg was employed, she did not consider that her client would be eligible for legal aid.

The committee considered that neither point Omer sought to rely on excused her from her obligations under rule 9.5 because:

  • Ms Wegg was young;
  • she was employed in an industry which is traditionally not highly paid;
  • her future employment was uncertain, being subject of the case in hand; and
  • a family member’s undertaking to pay her legal fees indicated that Ms Wegg may have had financial difficulties.

The committee determined that those factors should have alerted Omer to the possibility that Ms Wegg may have been eligible for legal aid.

Notwithstanding the above, the committee determined that a finding of unsatisfactory conduct was sufficient penalty without the imposition of any orders, as there was insufficient evidence before the committee that Ms Wegg would actually have been eligible for legal aid.