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Legal aid: the problems and issues

09 November 2018

The Ministry of Justice has been carrying out a triennial review of the legal aid policy settings. The ministry has said it is a targeted regulatory review with narrow legislative changes and a wider access to justice component.

The review included a series of forums between the ministry and legal aid practitioners in August in Auckland, Christchurch, Hamilton and Wellington and release of a number of issues papers. Justice Minister Andrew Little has said he will make decisions related to the review in early 2019.

The New Zealand Law Society has released its comments on the issues paper. These were prepared with input from the Legal Services Committee and the Family Law Section and provide a good summary of the Law Society’s views on some of the key problem areas in New Zealand’s legal aid system.

Access to justice

The Law Society is concerned that reforms to legal aid introduced by the Legal Services Act 2011 have diminished New Zealanders’ access to justice over time. It is now seeing an increase in the inequality of arms between legally-aided and privately-funded litigants and between legally-aided litigants and the state.

The Law Society says it encourages and supports a legal aid system that creates access to justice for New Zealanders, particularly some of the most vulnerable members of society. Research by the Otago Legal Issues Centre has found the three key reasons for the barriers to accessing civil legal aid are the grant of legal aid assistance as a loan with the imposition of a user charge, problems in finding a lawyer who will take a case, and finding a local and/or specialist legal aid lawyer. The number of registered civil legal aid lawyers decreased by 54% between 2011 and 2016.

Viability of legal aid work

The Law Society and legal aid providers have expressed concern about the economic viability of legal aid work, based on the current level of legal aid fees. Lawyers have expressed considerable frustration over the low level of fees, the administrative burdens and the difficulty of running a competent, professional and financially viable legal practice in this context.

The current legal aid climate is also seeing an increase in clients with more complex personal, behavioural and societal issues that inherently require more time and attention. In addition, concern has been expressed about the long-term viability of the private legal aid bar, with many providers unable to afford to continue taking on juniors, leading to likely shortages of legal aid lawyers in the long-term (signs of which are already apparent in the criminal, family and civil areas).

There has been a notable drop in the number of lawyers, and particularly senior lawyers, willing to continue doing legal aid work, with resulting shortages of criminal, family and civil legal aid lawyers in many parts of the country, including in the duty lawyer space. There are further significant shortages in the refugee and protection and ACC areas which we believe may be contributing to an increase in self-represented litigants.

Information released by the Ministry of Justice on gross legal aid payments for the year to 30 June 2017 (the 2018 information was still unavailable) shows there were 1,193 providers who received payments – down 20% on the number of providers receiving payments in the year to 30 June 2011. Just over one-third – 34.5% – of providers received gross payments of less than $50,000 in the 2016/17 year.

Increase in provider remuneration overdue

The Law Society says an increase in legal aid remuneration for providers is well overdue.

“The failure to keep pace with the burgeoning costs of practice has contributed to the decreased pool of legal aid providers (particularly senior and experienced providers) and is making it uneconomic for many firms to undertake this kind of work. Significantly, civil legal aid has not seen an increase in remuneration in over 10 years. The Law Society believes that legal aid should provide fair remuneration for those who do the work.”

Providers have expressed their frustration that they often end up doing a significant amount of work on a legal aid file that is not remunerated. At present many lawyers consider that clients expect them to have a number of attendances and actions on files for which there is not sufficient legal aid funding. Furthermore, counsels' professional obligations require them to do the work even if they are not remunerated for the additional attendances. Those expectations are further compounded by increasingly complex requirements introduced by legislation, for example sentencing and bail legislation, the courts’ practice requirements, and increasingly difficult and vulnerable clients who require extra attention and care.

The Law Society says that if remuneration rates are not increased to a reasonable level, information should be provided to legal aid applicants (at the time they make an application) by way of brochure, or other appropriate format, of the limits of any grant to the client (within the grant schedule). This will help to ensure that the client has a realistic expectation of what can be expected of their legal aid lawyer.

In the Law Society’s view, increasing legal aid rates is a vital component of helping to ensure delivery of high quality legal aid services. It says underfunding of legal aid providers also creates flow-on effects for others, including duty lawyers and community law centres. Duty lawyers have expressed their concern that on many occasions, people are coming to court desperate for legal aid advice (for example in the family jurisdiction) and have not been able to receive any assistance.

Other issues are around section 27 cultural reports, with more of these being presented to the court but without any specific legal aid disbursement policy to fund them. The reports are costly for legal aid providers and should be state-funded.

The Law Society says many legal aid providers consider the current disbursement payments to be insufficient. They do not include the time spent on administrative tasks such as printing.

Junior counsel

The Law Society considers that training and mentoring of junior lawyers is critical to the long-term sustainability of the legal aid workforce. Many criminal legal aid providers have expressed the benefits of having junior lawyers involved in trial preparation and advocacy. Not only do junior lawyers gain invaluable training and mentoring, it also eases the burden on the senior lawyer both in terms of their workload but also on an emotional level. This is particularly apparent in the context of sexual violence cases which have a significant emotional toll on the lawyers involved.

However, outside of the Public Defence Service, the current legal aid system does not assist with providing opportunities to junior lawyers in the private bar. There is also no financial incentive for senior lawyers to train and mentor a junior.

Provider shortage

Tied to the issue of junior counsel, is the increasing shortage of providers across all jurisdictions. This is more apparent in provincial regions throughout New Zealand where often a legal aid provider cannot act due to a conflict of interest (i.e. they may be acting for the other party) and other legal aid providers are unable to take the matter on due to their own workloads. In such instances, it would be beneficial for Legal Aid Services to make legal aid providers outside of these areas more accessible, by paying for their travel time and costs. The shortage of legal aid providers will have a fundamental impact on the long-term sustainability of the legal aid system. As there is an aging pool of legal aid lawyers and currently no incentive for senior counsel to continue undertaking legal aid work, changes are necessary.

The decrease in civil legal aid providers (actually undertaking the work as opposed to being approved) may be due to the requirement to establish financial or merits eligibility, the effect of fixed fees in some cases, and the low hourly rates involved. Further, in the ACC area there are very few legal aid providers operating which presents a significant barrier to access to justice nationwide.

Legal aid providers consider the increase in administrative tasks associated with the legal aid process, is contributing to the decrease in legal aid providers undertaking this type of work, in part due to the greater bureaucracy in the process. The Law Society has been told on numerous occasions that the administrative processes providers must adhere to have affected the working relationship with Legal Aid Services and adds time and money to an otherwise underfunded area of work.

Acknowledgement of ministry work

The Law Society says it would like to acknowledge the good support and positive indicators from the Ministry of Justice on legal aid over the last few months. It understands that the ministry is working on making operational changes in some of the areas of concern. The Legal Services Committee welcomes any positive or negative feedback or information from lawyers involved in legal aid. Please email Amanda Frank amanda.frank@lawsociety.org.nz

Last updated on the 9th November 2018