From a pilot scheme in Manukau in 2004, the Public Defence Service (PDS) has grown to an organisation with 10 offices and around 250 staff, 181 of whom are lawyers. It is having an important impact on the practice of criminal law.

The Manukau pilot took off after Dame Margaret Bazley’s often scathing 2009 report, Transforming the Legal Aid System, recommended the use of publicly provided services where case volumes were sufficient to make them an efficient option. The result was expansion of the PDS through the rest of Auckland, and down New Zealand, with the last office, in Christchurch, opening in 2012.

A few months after the PDS arrived in Wellington in February 2011, senior criminal lawyers publicly contemplated going on strike and working to rule to protest at what was described as “a takeover by a government-run legal-defence agency”. Some forecast the imminent demise of the private criminal bar.

The bar is still very concerned at where the criminal lawyers of tomorrow will come from. However, the PDS is clearly here to stay and it has become an important influence and contributor to the health of criminal practice.

“We’re a huge part of the future of the criminal bar, and I hate to think what might have happened if there wasn’t a PDS,” says Public Defender Northern Rob Stevens.

Mr Stevens joined the PDS upon the opening of the Tauranga office in 2012 after 19 years as a partner at Wellington firm Fanselows. He has seen a major change in how criminal law is practised.

“I started in 1986 and I remember in those days that a QC never appeared without a junior, even if it was just an ordinary list matter. Every little firm had a criminal practice. The Crown used to be the premier training ground for criminal lawyers and everyone aspired to be Crown prosecutors – or at least to be part of the Crown and to be trained by them.”

Changes

That’s changed immeasurably, he says, particularly over the last decade.

“The changes in Crown funding has meant a lot fewer opportunities from the Crown. I think there are fewer opportunities at the private bar for young lawyers. QCs don’t appear with juniors now as a matter of course. And I think it’s falling to us to a certain extent to fill the gap. I think we’re doing a good job.”

The PDS was principally established to provide effective, cost-efficient legal services. “We still obviously strive to do this. But I think we’ve become much more important to the profession generally in terms of providing for the future of the criminal bar. I think one of the biggest issues facing us as a profession is, where are the future criminal lawyers?” Mr Stevens says.

The PDS sees itself as a leader in securing that future by providing training and a supportive practice environment. Its structured Law Graduate programme gives new lawyers the chance to immerse themselves in a criminal defence environment.

Since 2016, a total of 36 law graduates have joined the PDS. Three are still at graduate level, eight are now supervised providers (with the next step qualification as PAL1 [Criminal Provider Approval Level 1] lead lawyers), 20 are PAL1 lawyers and five have moved on to other opportunities. Another seven graduates joined the PDS for a six-month fixed term on 5 September. Recruitment is also underway for five summer interns for three-month fixed terms starting on 25 November.

Training ground

“It’s a great training ground,” says Grace Kahukore-Fitzgibbon, a member of the Wellington PDS who became PAL1 qualified this March after a year as a supervised provider. “Practitioners at our level are exposed to a lot of court time and an interesting variety of cases through being at the PDS.”

Wellington PDS lawyer Julia Spiers was hired for the PDS summer intern programme over 2016/17 after her fourth year of studying law.

“I thoroughly enjoyed it, with the sense of collegiality in the office and being able to see real cases in action rather than just doing photocopying and scanning and admin tasks. It was really beneficial being able to work on submissions and meet real clients and do as much as I could without actually being a lawyer – and then to see the case play out in a real courtroom with the judge referencing the submissions I’d been working on. I found that a really rewarding and valuable experience.”

“Just itching to go back” to the PDS, Ms Spiers finished her law degree and the profs course and started back in the Graduate Programme in March 2018, becoming a supervised provider three months later when she was admitted. She moved to PAL1 in July this year.

“I felt very prepared. In the office we’re able to ask anyone for help and everyone’s very approachable if you’ve got any questions – but no-one’s looking over your shoulder the whole time. You have independence and you’re trusted to do your own work, which is a good mix because it increases your confidence in dealing with the client.”

The sense of collegiality, a well-developed training programme and the on-tap resource of experience appeal to both young women.

“You hit the ground running. From day one I was writing submissions and helping to deal with clients, doing real work that I was able to take ownership of as well,” says Ms Kahukore-Fitzgibbon.

“People don’t have the capacity to micromanage, so there’s a lot of trust. The senior staff are open to answering questions, but ultimately we’re trusted.”

Stress and pressure

Both acknowledge that working in a busy criminal practice can be stressful.

“There’s always stress and pressure because in the courtroom you get things thrown at you from judges and clients,” says Julia Spiers.

“It’s emotionally charged, it’s interesting, you’re really making a difference. Often you’re representing someone who can’t speak up for themselves. I love it; I’ll be here for a while. It’s access to justice for people who wouldn’t be able to pay for it.”

“It can be stressful because the case loads are high, but you just learn so much so quickly,” Ms Kahukore-Fitzgibbon says. “The high case loads can mean there’s extra pressure. But that’s balanced by the support and knowledge in the office.”

Information released by Justice Minister Andrew Little in response to parliamentary questions shows that at 1 May 2019 the average case load for a PDS lawyer was 43.8 cases. This was slightly up on May 2018 (43.2 cases). At 1 May 2019, the average active legal aid cases that an individual legal aid provider (including PDS lawyers) had was 38.4 cases, down on 39.2 at 1 May 2018. Big case loads, but the statistics do not indicate any significant disparity.

Both Julia Spiers and Grace Kahukore-Fitzgibbon say there is a real sense of collegiality between members of the private bar and the PDS in the Wellington region.

“I’ve always found members of the private bar to be helpful and approachable, and they are shown the same courtesy by PDS lawyers. The ‘us and them’ divide seems to be slipping away, which I think bodes well for the future of the criminal bar in New Zealand,” Ms Kahukore-Fitzgibbon says.

Ministry of Justice connection

Areas where the private bar and the PDS differ are in its connection with the Ministry of Justice and, still, its impact on legal aid work.

Criminal Bar Association President Len Andersen sees the fact that the PDS is administered by the ministry as creating problems. He would like to see it administered by a different ministry so it is separate from the court system itself.

Public Defender Northern Rob Stevens disagrees.

“We are fiercely independent and that’s something the Ministry of Justice has recognised. I can honestly say that in the seven years I’ve been with the PDS I have never once felt compromised by being part of the ministry. And I’ve never felt that there has been an expectation that I will approach a particular issue in a particular way because we’re part of the ministry.”

He says he has never once felt a disadvantage at the connection with the ministry – “apart from perhaps the profession’s perception of our independence”. He also points to the Lawyers Conduct and Client Care Rules: “It’s our responsibilities as lawyers that take precedence”. “In fact we derive a lot of benefits from being a part of the ministry, the support and access to resources the ministry provides makes a real difference for us as an organisation.”

Len Andersen says that with half the legal aid work going to the PDS in the centres it works in, it is difficult for criminal practitioners in many areas to get enough work to earn a good income because of the low legal aid rates and the economies of scale.

“The shortage of work means that senior lawyers often compete with junior lawyers for PAL2 work which makes it difficult for junior lawyers to survive. It has also resulted in senior lawyers leaving the bar to work for PDS – which has benefitted PDS but also further reduced the senior bar.”

Mr Stevens says he is not aware of any future plans to expand the PDS. He believes it provides a good balance with the private bar for available work.

“I would not like to see the PDS ever take more than 50% of the legal aid assignments – and that’s not a target; it’s the maximum that we take in any centre – because it’s vitally important that the private bar is a strong well-organised part of the profession.”

He notes that the PDS has been able to assist the private bar by sharing training materials and its involvement in working for change in the development of AVL in Auckland.

“I would hope that now the profession sees us not as a threat but as an asset.”

Less than 10% of approved legal aid providers

Written parliamentary questions to Justice Minister Andrew Little show that at 1 June 2019 there were 183 PDS approved legal aid providers out of a total of 2,226 approved providers – 8.2%. A year earlier at 1 June 2018 there were 178 PDS approved providers out of 2,096 – 8.5% of the total approved.

Information from Mr Little also shows that at 1 July 2019, 126 PDS lawyers and 747 private lawyers held duty lawyer approval, making PDS lawyers 14.4% of approved duty lawyers. On a justice service regional basis, there were PDS duty lawyers in seven of 15 regions.

Comments from lawyers at the private bar have sometimes painted a picture of a sweatshop-type practice where poorly trained and supervised young lawyers manage enormous caseloads and flounder.

“I’ve certainly never worked the hours at the PDS that I used to work at the private bar,” says Rob Stevens. “We’ve put a real emphasis on wellbeing and managing caseloads. We have time recording in PDS offices and my perception is that most of the lawyers are working around about 40 hours a week most of the time. That obviously changes if you’re in the middle of a jury trial, but we keep a very close eye on the hours that our lawyers are working and we manage them if there appears to be some concerns.”

He points to the Law Society’s Legal Community Counselling Service trial and says the PDS introduced this about four years ago. Every PDS lawyer is entitled to three hours of professional supervision every six months with a counsellor or psychologists.

“I think the PDS now presents a career path for young criminal lawyers. There are a number of senior criminal lawyers who started with us as supervised providers. The Deputy Public Defender in Manukau started with us 14 or 15 years ago as a very junior lawyer and is now PAL4 qualified and helps to manage a 55-lawyer office.”

A training focus

Rob Stevens says he feels quite proud that the rest of the profession views the PDS as a training ground.

“We’ve got a lot of young lawyers who are with us for a year or perhaps two and then they’re grabbed by the Crown, by barristers, by small firms – although there aren’t many small firms that do a lot of criminal work anymore.

“It makes it a little bit harder for us perhaps in terms of retention, but I see one of our real responsibilities as providing well-trained, qualified lawyers to the criminal bar. And if we can keep doing that, I really think we’re doing a good job.”

The training starts on day one with a focus on client interviews and management, ethics, and how to open a file, but all PDS lawyers are expected to complete at least 60 hours of CPD a year. Special workshops are overseen by a national training committee, and specialist training materials now cover around 50 different topics.

“With the legal aid reviews and auditing of files, inevitably the PDS files come out very well because we have very high quality assurance standards and strong file management policies. There are lots of precedents and templates for lawyers to use,” Mr Stevens says.

An ethics committee of 12 of the most senior PDS lawyers has a focus on delivering an opinion on matters such as conflicts of interest within 24 hours. The organisation also has a culture and diversity committee and has signed up to the Law Society’s Gender Equality Charter. The PDS is also working on developing greater flexibility of employment. It has a number of part-time lawyers and also lawyers who have returned to the workforce.

“I’ve got over 100 lawyers in my patch in the northern region,” Rob Stevens says. “Every single one of them is passionate and committed, and just so client-oriented. The managers of our support services talk to me frequently about having come from outside organisations in to the PDS and they can’t believe the commitment of the lawyers. They come to work because they want to make a difference and they’re incredibly passionate, and I think that’s pretty rare.”

An important player in criminal defence

Mr Stevens has no doubt that the PDS has become an important player in New Zealand’s criminal defence practice.

“I love being part of the PDS and I’m pretty proud of being able to have made a small contribution to it. They’re all trying to make a difference and that’s a pretty good reason to go to work every day.”

Criminal Bar Association President Len Andersen believes the PDS has had both a positive and negative impact on the criminal justice system.

“It has provided good training for lawyers and raised the standard of representation in some courts,” he says.

However, “it has had a negative impact on the private bar as the amount of work available to the private bar has decreased, which has reduced opportunities for lawyers to obtain work as employees doing criminal work apart from the PDS.”

This has resulted in the criminal bar getting older, Mr Andersen says. He believes there will be a crisis in some districts when those criminal lawyers who are currently over 60 retire.

The standard and competence of lawyers who work for the PDS is generally good, he says.

“The junior lawyers are well trained and those at the top are excellent. Like the bar generally, there is a shortage of PAL3 level lawyers.”

He feels the PDS is a good start for lawyers wanting to practise criminal law.

“But lawyers who start in the PDS can find it difficult to survive if they want to leave the PDS.”

“There is no doubt that the PDS contributes to the overall delivery of access to justice,” New Zealand Law Society President and criminal lawyer Tiana Epati says.

“When I was a young lawyer if you wanted to break into criminal law you either got a graduate position with the Crown – which were, and still are, rare – or had to find a criminal barrister willing to hire and train you. I was fortunate enough to get a job with the Crown but I often wonder what would have become of me if I had not been so fortunate. These days the PDS offers that crucial career pathway for young lawyers looking to become criminal lawyers.”

Ms Epati says this is particularly important given that the reduction to legal aid rates has made if difficult for many criminal barristers to take on graduates.

Criminal law pressures

Ms Epati says the PDS is also important given the unique pressures of practising criminal law.

“The Legal Workplace Environment Survey in April 2018 indicated that, by practice area, criminal lawyers experienced the highest rate of unacceptable behaviour. Mental health is a huge concern for criminal lawyers. I have personally experienced some very low moments as a criminal lawyer. You are dealing with difficult and vulnerable people at the most stressful time in their lives. Being able to talk it through with colleagues who understand this is critical. The PDS offers a team environment and the opportunity for professional supervision.”

Ms Epati says the PDS also has to take a special responsibility as kaitiaki for the new generation of criminal lawyers. Access to employment assistance programmes and resources necessary to health and wellbeing are good, but also must be encouraged.

Lawyers from Māori (10% of PDS staff and 6% of New Zealand lawyers) and Samoan (9% of PDS and 2% of New Zealand lawyers) backgrounds also make up a bigger proportion of PDS employees than nationally.

“This is important because criminal justice – like all parts of the profession – needs better diversity,” Tiana Epati says. “It is particularly important given the over-representation of both ethnic groups in the criminal courts. But this also comes with special responsibility. The PDS also must be culturally competent and responsive to the needs of its lawyers.”

Ms Epati feels the PDS has made a significant contribution to the way in which criminal legal services are being delivered and in providing an avenue for young lawyers.

“To reach its full potential the PDS needs the support of the entire profession, given the unique features and challenges of the junior criminal bar.”