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In September 2021 the New Zealand Law Society | Te Kāhui Ture o Aotearoa commissioned Colmar Brunton to survey all lawyers to assess the current state of access to justice in Aotearoa New Zealand. We highlight what you need to know from the findings.
Almost 3,000 lawyers responded making this the largest survey of lawyers on access to justice ever undertaken in Aotearoa. The results confirm what many have been saying for years but are still jarring to see so explicitly laid out – the legal aid system is on life support.
Half of the lawyers surveyed rated the legal system as poor or very poor at providing everyone in Aotearoa with access to justice.
And that’s no surprise given how many people are being turned away because lawyers don’t have capacity to take on more clients.
50% of lawyers (excluding those working in-house) have turned away clients in the last 12 months, whilst 75% of legal aid lawyers have turned away people seeking legal help. Through figures provided in the survey Colmar Brunton conservatively estimates that in the past 12 months over 20,000 people were turned away from legal aid lawyers.
The figures show there simply aren’t enough legal aid lawyers with capacity to help the number of people needing legal help.
On average legal aid lawyers were not renumerated for half of the hours they spent on their last legal aid case.
Only 15% of legal aid lawyers were fully renumerated for time spent on their last legal aid case, while one in three were not renumerated for over half of the time they spent on their last legal aid case.
80% of legal aid lawyers agree their job is stressful, whilst 79% agree they regularly work extended hours.
Legal aid lawyers are working 50 hours per week vs 46 hours for those not providing legal aid. On average this is 11 hours more than legal aid lawyers are contracted for.
The following groups of lawyers work more than the legal aid average of 50 hours a week:
Given the low rates of renumeration, long hours and stressful work it’s no surprise that 25% of legal aid lawyers tell us they plan to do less legal aid work or stop altogether over the next 12 months.
The primary reason for wanting to do less legal aid work is inadequate renumeration. Secondary reasons include finding the work too stressful or time consuming, the administrative burden involved with undertaking legal aid cases and the complex needs of legal aid clients.
Legal aid remuneration hasn’t increased in over a decade, while over the same period, CPI has increased by 18.3%.
From an average legal aid payment of $124 an hour, after covering typical business administration costs, building rent, salaries and regulatory costs, and taking into account the unremunerated work on legal aid files, a lawyer is likely to have earnt just $13 for their work.
Legal aid is also nowhere near the rate of Crown Prosecutors and independent counsel to assist the court, sitting on average at about half of those rates.
The survey identified that lawyers are contributing to access to justice in several ways, but predominantly by reducing their fees or providing free services.
Most lawyers are providing services at a discounted rate or reduced free.
59% have provided legal services at a discounted rate or reduced fee in the last 12 months, and 43% have provided legal assistance at a discounted rate or reduced fee to people who can’t afford it.
81% have provided some form of legal assistance for free in the last 12 months and nearly half have provided free legal assistance to individuals who cannot afford to access the legal system.
In an average week, lawyers are spending six hours of their time providing free services. They’re motivated to do this as they want to give something back and to enable people to get the legal representation they couldn’t otherwise afford.
The majority of lawyers plan to keep providing their services for free to those who need them.
For those who can’t provide free services to vulnerable individuals it’s because they are already overstretched and would struggle to take this work on. Many are also in workplaces which don’t allow or encourage them to provide free legal assistant to those who need it.
The survey results show clearly the problems in the system. They also show that things are likely to get worse. Covid-19 has exposed and deeply exacerbated problems in the justice system. Almost 47,000 court events have been adjourned in this latest lockdown, building up a backlog of more than 3,000 jury trials, roughly a 1000 of which are in the Auckland area.
Last year, a smaller backlog was met largely through the goodwill of legal aid lawyers, who stepped up. More trials in the District Court were held in 2020 than ever before.
This year, faced with an even bigger backlog and an exhausted, over-stretched legal aid pool, the goodwill of lawyers has been drained dry. It is very unclear how this mountain of work will be tackled, or by whom.
The Law Society is calling on the Government to bring in a substantial, overall increase in legal aid remuneration. We also want to see more funding for junior lawyers to support legal aid seniors. There’s currently no funding for this, compounding the problem because there are no junior lawyers to succeed seniors who are leaving.
Finally, the administrative burden of becoming a legal aid provider and running a file must be dealt with. Many lawyers refer to this as a stand-alone barrier.
Therefore, as the Budget is being set for the next financial year, we are calling on the Government to act quickly.
You can read the full report here.