Lawyers’ massive access to justice contribution
Many of the access to justice initiatives that we take for granted were instigated by the legal profession itself and could not survive without the generosity of lawyers.
In addition to the more usual role of being retained for a professional fee, or for those in-house giving advice to their employers, lawyers have had, and will continue to play, a major role in helping ensure access to justice for those with insufficient means.
Lawyers have a history involving many hours of pro bono work for individuals and charities. They have also been involved in the following initiatives:
- setting up Community Law Centres, in conjunction with students, and they continue to donate their time regularly to the running of those centres and also the Citizens’ Advice Bureaux (much of the funding for Community Law Centres has traditionally come from interest earned on deposits made through lawyers’ trust accounts and that source of income for the centres continues);
- helping initiate the Police Detention Legal Assistance (PDLA) scheme, initially making themselves available without fee (they continue to be available to it, albeit now at a very modest fee and notwithstanding the interruptions to their weekends, evenings and personal lives);
- establishing the duty solicitor scheme;
- regularly being called upon by those facing legal issues and often giving limited initial advice by telephone or in person in urgent circumstances, usually pro bono and/or without the certainty of any fee;
- the legal profession undertook significant time-consuming administration of the legal aid scheme at no cost until the Legal Services Agency (now a part of Ministry of Justice) came into force; and
- undertaking legal aid work at a less than commercial level of remuneration (in many situations, for example while awaiting advice as to whether a grant of legal aid will be made or extended, that work is undertaken without any assurance at all that legal aid will even be granted, and that any payment will be received).
Most believe that in an ideal world, governments have a responsibility for the administration of and access to justice for their citizens and most expect them to pay for it, including paying for a strong legal aid system accessible to all those with unmet legal needs.
Eligibility thresholds are so high that there are many in genuine need who simply do not fulfil the criteria required to be eligible for legal aid.
The fees for legal aid providers, particularly in the criminal area, are of such serious concern that they put at risk the provider’s ability to run a quality legal practice. Nowadays very few firms undertake legal aid work and train juniors, which is putting at risk the future of the independent criminal and family bars. Many who still do legal aid work could be doing significantly fewer hours for more money in the private sector. Yet they continue to provide the necessary legal services, usually out of a strong sense of social responsibility and a fierce belief in the justice system itself.
New Zealand is not alone in facing this dilemma. Most western countries are struggling to fund the increasingly large gap between those who can afford to pay for their legal needs and those who cannot. At the same time, increasing health and social welfare costs are putting greater burdens on governments. We are living longer and expect higher standards of living. Health professionals say that more needs to be spent on health, teachers want more for education, those in the social welfare area will say we need more money for drug and alcohol rehabilitation, housing, vulnerable children and elder care. Balancing those needs must be difficult and a constant challenge and I do not know the answer.
What I do know is that in all my dealings with my colleagues I am constantly astounded, humbled by and proud of the commitment to access to justice shown by those lawyers who continue to do legal aid work. It is a challenging environment and is likely to be so for the foreseeable future. Hat tip to those who choose to still to be involved.