Legal Aid

February 13th, 2009 at 6:00 am by David Farrar

Both National and Labour MPs are concerned that some lawyers are milking the system:

National MP Simon Bridges, until recently a Crown prosecutor, said there was a growing perception that some of the $54 million the Legal Services Agency spent in the past financial year on criminal legal aid was funding cases where there was no prospect of success.

Mr Bridges said he had received reports of milking the system, such as “a fourth bail application when it is clear that he or she failed the first three times and the fourth one is simply unnecessary”.

Mr Bridges said another example could be the funding of cases to a preparation time of 50 hours, when that amount of time was not needed. Legal aid rates range from $105 to $182 an hour.

Mr Bridges also had reports of “rather too cosy relationships between [agency] staff and particular counsel”.

The cost of criminal legal aid alone is now over $50 million and has blown out by 42% over the last five years.

Labour MP David Parker, also a lawyer, said senior criminal lawyers, particularly in Auckland, had told him there were “considerable numbers of counsel milking the system, particularly inferior counsel”.

Mr Parker cited trials with many accused where six or seven defendants had individual lawyers, “because someone else [legal aid] was paying”, rather than the compromise of having fewer lawyers to represent them as would be likely if they were paying themselves.

Good to see David Parker also raising concerns.  Maybe Nats and Labour can do an inquiry?

But some good news from the agency chair, Carole Durbin:

She said its in-house public defence service, a pilot scheme made permanent last year, was one of its “bright lights”.

I think there is considerable merit in having a public defenders office.

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60 Responses to “Legal Aid”

  1. JC (909 comments) says:

    I can accept a separate lawyer for a young person.. say under 18, or for someone not the full quid, in a trial of multiple dependents, but there’s no need to have separate representation for older accused paid for by the State.

    JC

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  2. Inventory2 (10,100 comments) says:

    There should be savings of several million due to the untimely demise of one Antonie Dixon

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  3. Gooner (995 comments) says:

    It’s always the same: a very small % of lawyers rorting the system meaning the profession as a whole takes a hit. Bridges’ example is a little disingenious considering the LSA only fund those matters that have a reasonable chance of success. I doubt a fourth bail application would.

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  4. big bruv (13,279 comments) says:

    Oh yeah, David Parker raises concern when he is in opposition, what did he do about it when he was part of the government?

    “Labour MP David Parker, also a lawyer, said senior criminal lawyers, particularly in Auckland, had told him there were “considerable numbers of counsel milking the system, particularly inferior counsel”.

    Do not let Parker get away with this DPF.

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  5. dad4justice (7,765 comments) says:

    Family Court lawyers just love the legal aid gravy train. The childrens legal aid lawyer is on the pigs back!

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  6. peterwn (3,160 comments) says:

    Separate representation is necessary where a lawyer could have a conflict of interest when representing two clients. For example two accused may each charged with A and B. Accused X may deny both charges while accused Y may plead guilty to A but deny B and furthermore may be willing to turn Queen’s evidence to minimise the sentence for A. If a lawyer was acting for both then this situation arose, the lawyer would be ethically bound to withdraw from representing A or B. How can a legal aid agency second-guess such conflicts. In any case a bun-fight between defendants is very advantageous for the Crown.

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  7. What would Hayek say (51 comments) says:

    A review of legal aid also needs to include a review of the prosecution service. Is it appropriate to have a two tier system of police prosecuters and crown warrants? Also is the amount of resources available between legal aid and prosecution in any way equitable even if equality is not possible and probably not necessary.

    Further whilst legal aid costs may have risen in recent years, so to has the number of cases. Any review would need to consider how much legal aid is just part of the pipeline costs that arise from changes in the justice system for example tightening bail provisions, changes to sentencing, new criminal legislation etc. Costs also need to consider the expenses of evidential testing. Legal aid costs also include the costs for laboratory tests and expert witnesses which can be quite expensive.

    You also need to consider criminal legal aid slightly differently to family/civil legal aid.

    In all I don’t think legal aid is a gravey train – counsel are generally encouraged to develop there private practice if they want to have a hope of partnership, the legal aid rates are way below the rates from private practice and there is plenty of private work available creating a tension of crwoding out time.

    This probably is not too dissimilar to wider professional practice issues in other sectors such as GP’s and suggests we need to look carefully at the structural set up of professional practice and its relationship with public funding. Are we get best value for money, is there a supply side problem (shortages of teachers, doctors, nurses, lawyers) and how do the professional rules and system of funding create blockages to reduce the efficency of the system?

    I support consideration of a public defenders office, but worry about whether this will become a dumping ground. Needs to consider staff development and recruitment to ensure quality as well as quantity.

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  8. GPT1 (2,089 comments) says:

    I am afraid that is Simon’s prosecution bias coming out. An adequately funded defence is just a burden and a nuisance to be over come in any way that is possible. Legal aid rates are up to $182 an hour. Woopty do. That includes GST incidentally and the hours are limited. So compare that with the Crown who not only get paid more per hour are granted more hours and have the entire resources of the state behind them. If they want more information or further witnesses breifed they get the officer in charge to do the grunt work – defence have to do it themselves.

    I would like Simon to explain how a defence lawyer is meant to adequately prepare a defence to indictable charges on five hours preparation plus hearing time? That includes all the preparation for the pre-trial conferences required by the Court, attending on your client and actually preparing for the case (cross examination does not, contrary to American TV, simply turn up on the day by magic).

    That $182 maximum is obtained by the lawyers who privately would charge their time at $300-$500 an hour so a bit of perspective would be welcome.

    I have heard a number of stories out of Auckland more along the lines of incompetence than milking the system. Basically there are not enough quality lawyers doing criminal defence work (and virtually no firms). That means no one is training the next generation and a number of those that are coming through are too incompetent to get other jobs. Of course LSA just registers them as long as they do the right courses to keep the numbers up and deny there is a crisis in funding.

    Trial resolution rates are already ballooning out in terms of time and it is only going to get worse as a shrinking pool of competent and experienced defence counsel are called upon to do more and more of the work. And as more inexperienced and incompetent counsel are used to bridge the gaps watch the Court of Appeal get busier and busier kicking out convictions because of incompetent counsel.

    Criminal legal aid may not be an election winner but it is a. a vital bulwark against a police state and b. false economics not to fund it properly because lack of competent defence counsel will only contribute to delays, appeals and re-trials.

    Still, a quick headline outweighs good policy?

    Perhaps Simon would care to comment on crown counsel who lie, cheat and act unethically in the pursuit of convictions? A growing problem from my observations that is perpetuated by the Crown warrant monopoly.

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  9. F E Smith (3,302 comments) says:

    Lots and lots of points here, but little time to address them in:

    1. We have a public defenders office. It is in Auckland and it doesn’t save any money at all. That is noted in the reports.

    2. We should have a Crown Prosecution Service. It would mean that the Crown Solicitors don’t have a monetary incentive to take matters to trial when they shouldn’t. They also have a profit motive in trial matters and they make a lot of money in doing it. There is hot competition when Crown Solicitor’s warrants become available.

    3. I am a legal aid lawyer. I also do Civil and RMA work. I can tell you which makes me the least money. Legal Aid is poorly paid and appallingly administered. We lawyers used to do it for free, in conjunction with the Court. Now it is done by the LSA and their admin bill is spiralling upwards.

    4. Auckland does have a problem. They have had complaints from Judges about brand new lawyers with little or no supervision becoming sole providers and not really being competent. This is not the case for most of the rest of the country. That said, the LSA does not encourage the training of junior lawyers but refusing to assign junior counsel in all but the most serious of cases. The Crown, on the other hand, gets to train its junior lawyers in trials as often as it wants. Ironically, the Crown is now the biggest training ground for trial lawyers in New Zealand.

    5. I would expect someone of the experience of David Parker to know better regarding multiple trial counsel. Any lawyer who defends multiple clients in a trial had better be well insured. To suggest that they would go legal aid for individual lawyers but private for ‘better’ ones is just stupid. Really stupid. The LSA have a criteria that must be met before you get legal aid. If you qualify for it, then you wouldn’t have the money to pool together with others to hire a lawyer privately.

    7. What happens when the Agency refuse aid is the client represents themselves, or pleads guilty with the duty solicitor. That is because we have an imbalance in the power structure in this country that allows the State to bring and prosecute charges against a person with the full resources of the Police and Crown, but then requires them to either fund the defence themselves or apply for legal aid, which they may not get.

    6. Simon Bridges is an ex-Crown prosecutor. They have a biased and jaundiced view of defence lawyers. They seem to think that we tell our clients what to do. We don’t. We act on instructions. If our client wants to defend a hopeless case we have to do so. The Rules of Conduct forbid us from ditching the client in that instance.

    7. Legal aid rates are as above, depending on your experience level. However, that includes GST. A senior crown lawyer, on the other hand, is getting $216 including GST. And they get that regardless of the level of the charge, whereas for a senior defence lawyer the payment is reduced depending on the level of the charge. But that payment does not go to the lawyer. It goes to the firms. Actual income is in the range of $20 – $30 per hour after costs. That is far below normal firm income and is why we are not seeing an increase in legal aid lawyers.

    8. We got an increase of 10% last year, the first one since 1996. Work that out as a yearly rate.

    9. Working with the LSA is a nightmare and they treat us like the crims we represent. I can tell you now that as soon as my private practice is large enough, legal aid is out the window for me.

    It is disingenuous to attack the defence bar when it is in such a precarious state. We are shrinking as a proportion of lawyers (about 5% or so, tops) and we are not getting the young blood that we need. All this does is mean less and less lawyers are inclined to undertake criminal defene work, let alone legal aid. Of course, that is what the politicians above really want, because the Ministry of Justice views defence lawyers as being an impediment to justice.

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  10. F E Smith (3,302 comments) says:

    GPT1: “Perhaps Simon would care to comment on crown counsel who lie, cheat and act unethically in the pursuit of convictions? A growing problem from my observations that is perpetuated by the Crown warrant monopoly.”

    Hear hear. I can provide examples if you want.

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  11. big bruv (13,279 comments) says:

    The news does not get any better, on Monday convicted murderer David Bain starts his legal aid funded appeal to have his case thrown out.

    Why are we funding the appeal of this low life murderer?

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  12. alex Masterley (1,490 comments) says:

    Most law firms in new Zealand run a mile when faced with the prospect of acting on a legal aid matter.

    The remuneration received for the work is outweighed by the cost. That is why there are few if not no lawyers taking legal aid assignments in the Manawatu or the Marlborough area. It is also why judges complain of the competence of counsel. They are not receiving the training they used to receive in days gone by when juniors sat beside senior counsel and learnt the ropes.

    I am on the LSA register as a provider but I haven’t accepted an assignment for 5 years. It’s not worth my time.

    And to say that Counsel for the Child are on the pigs back is the same sort of rubbish that the politicians come out with. The remuneration which comes from the courts rather than the LSA barely covers costs according to my colleagues who accept assignments.

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  13. dad4justice (7,765 comments) says:

    “And to say that Counsel for the Child are on the pigs back is the same sort of rubbish that the politicians come out with. ”

    Really alex, want some examples from Christchurch Family Court and Youth Court jurisdictions? Oh look its the same lawyer on the gravy train. Bill the agency lady muck !! Most children think their lawyers are greedy sods who couldn’t give a stuff about their predicament.

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  14. What would Hayek say (51 comments) says:

    Very good points GPT1 and F E Smith.

    You remind me of some unholy sraps within the legal profession that have occured when a crown solicitor warrant becomes available. It is very lucrative and a stable cash flow for the practice.

    Training for junior counsel is a significant issue compared to prosecution.

    First rule for a defence counsel is that you don’t ask if they are guilty, you ask what have you been charged with. Then you seek the information laid by the crown. That brings up the first problem – actually getting all the information out of the police including the stuff that is not favourable to the crowns case. There is a dicord sometimes at the investigation level from collecting all evidence to collecting evidence that favours a particular prosecution view point.

    The economic problem in this is that you end up with more delays, more appeals and clogging of the appelate courts at higher cost. And we still don’t have a justice system that serves New Zealand.

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  15. GPT1 (2,089 comments) says:

    WWHS – ah yes, disclosure. Just pesky defence lawyers trying to get clearly guilty people off. Dumb thing is that in many cases ready access to disclosure and a lawyer can often lead to a prompt guilty plea. I can think of a number of occasions when self-litigants have defended themselves “accidentally” by basically getting caught up on an irrelevancy and having a DCJ flick it off to fixture when in reality they just want an element in the summary sorted but never intended to plead NG. The Crown warrant is not quite a licence to print money in that you still have to do some work but it is pretty close. Especially in a larger centre.

    FE – examples? Yes please.

    Regarding training the sad irony is that the various Crown solicitors offices are about the last place training defence lawyers (those that see the light and go to the independent bar that is).

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  16. What would Hayek say (51 comments) says:

    D4J – You also deserve to have good counsel, both parties in a legal dispute should be equitably supported. At present the current system has a number of biases, which includes a bias to the prosecution and probably as you are aware a bias against fathers within the family system.

    Both issues need addressing.

    Oh and big bruv – I don’t think there is a need for the David Bain case. If the Crown had accepted the privy councils findings that trashed the prosecutions case and not sought to retry then legal aid would not be necessary. I won’t comment on guilt/innocence but the issue with Bain is that the information used and trial process did not support justice. We shold all be concerned when there are problems with the process of justice. It creates the risk that you will loose rights you are entitled to and this includes property rights.

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  17. GPT1 (2,089 comments) says:

    An example of funding. I can earn more from an undefended HC Summary Judgment that requires a half hour appearance (plus a fair bit of preparation) than a four day trial just on court awarded costs (which are meant to be about 2/3rd of actual). Go figure.

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  18. dad4justice (7,765 comments) says:

    How many legal aid funded appeals go to Court of Appeal ? A person in prison I am helping is thankful for a barrister accepting to conduct the appeal next month. I believe police prosecution and the crown law office are both sick jokes and many trials are the result of people being influenced by hateful agendas.

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  19. F E Smith (3,302 comments) says:

    Just read the article!

    “Mr Bridges said another example could be the funding of cases to a preparation time of 50 hours, when that amount of time was not needed”

    This is dumb, dumb, dumb. Here we have a crown prosecutor who has always had the police hand him the case on a plate, prepared, breifed and ready to go, criticising the defence lawyers who get a basic assignment from the LSA and then get no further assistance AT ALL.

    We do everything, from tracking down our client to investigating the case, going through police disclosure, finding witnesses and briefing them, preparing the case for trial and then doing the trial. We work on a case sometimes for as long as two years before trial, and we are being criticised for getting 50 hours prep? That is just over a weeks work. One murder I worked on took two of us over 300 hours of paid prep time, plus a good 100 to 150 hours unpaid time, to prepare for the 4 week trial. We had thousands of pages of disclosure that we had to go through, in addition to working with our own client.

    When you get disclosure files that can stretch to 40 to 50 Eastlight folders of paper (or more) then such criticism is not just ill-informed, it is wilfully misleading.

    Tell Simon Bridges to come and talk to the defence bar before he opens his mouth and speaks as a crown prosecutor. He is an MP now and should act like it.

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  20. F E Smith (3,302 comments) says:

    just so you know, the LSA guidelines say that the defence lawyer should get 5 hours preparation time for a burglary trial. The crown, with all of the help from the police that they need, get (if I remember correctly) 10 hours for the same tria.

    If we need more, then we go cap in hand to the Agency.

    I have a colleague who requested 80 hours prep time for a serious sexual offence trial that took up a ton of his time. 80 hours was not the full amount of time spent on it. The LSA said no, we will give you 40. One weeks work for something that my colleague spent a huge amount of very necessary time on. Guess why he is not inclined to do many trials?

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  21. alex Masterley (1,490 comments) says:

    GPT1, I agree with your point about the training aspect of the Crown Solicitors office.

    If you work in one of those offices it is day in day out trial and court experience. Most of the ex CS staffers who are a) barristers and b) do criminal work are the better ones around. Strangely that means they don’t do much in the way of legal aid work. They are also the guys I instruct when clients go bad. They are expensive but worth it.

    The increase, such as it was, last year in legal aid remuneration rates was hard won. If anything from the reports I read it was the best of a number of unsatisfactory outcomes. Jonathon Temm did a great job in this area. I didn’t think then that it would stem the tide of people leaving the legal aid sector. I still don’t, even in curent times.

    FES David Parker- experienced? No way. He was a commercial lawyer in Dunedin. He probably dosn’t know where the courts are down there!

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  22. alex Masterley (1,490 comments) says:

    The limited preparation time for legal aid counsel has always astounded me. Talk about equality of arms.

    A rule of thumb I apply for civil litigation work, which is 25%of my practice is that for every day in court 2 days preparation is required. My colleagues who are member of the criminal bar tell me they use the same yard stick.

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  23. What would Hayek say (51 comments) says:

    Alex – your rule of thumb is about right. People seem to have very LA Law/Ally McBeal/ Boston Legal view of the legal profession where you roll up to court tell and interesting story and hey presto.

    Not quite the reality of traffic day/fines and then duty solicitor running around, new clients and rescheduling court dates … Sorry your honour Crown has not provided full discovery…

    So much time written off that cannot be claimed by legal.

    Ahh the bliss of insurance discovery and having a junior go through every page and charge every hour..

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  24. alex Masterley (1,490 comments) says:

    In another life time I did duty solicitor stuff at Auckland District Court. It could be very off putting, especially the stench from the cells. Makes you wonder why people do it. Can’t be the money which is niggardly.

    WWHS You are right about the delights of discovery, except it is me my self and I that does it ( and on my hourly rate too!).

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  25. What would Hayek say (51 comments) says:

    Alex – what turn down duty solicitor and miss the joys of the intoxicated, stoned, distressed, simply lost, the angry, the I have no idea why i’m here man, the stoned intoxicated depressed last and anry all in one. The ones that take a swing at you and then apologise cry and ask for help.

    Then there is the very rare quiet person. Who after you have seen process fairly carried through, you go home find a glass of wine maybe go for a run and enjoy the smile from someone you love.

    all for a glorious fat paycheck

    There are of course some good moments.

    My regards to all counsel who remember that they not only the have a duty to the client (whether prosecution or defence) but also a duty to the court and the justice system.

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  26. Portia (204 comments) says:

    I don’t think there is a need for the David Bain case. If the Crown had accepted the privy councils findings that trashed the prosecutions case and not sought to retry then legal aid would not be necessary.

    @ WWHT – erm, where exactly in the Privy Council decision does the Court “trash” the prosecution case? All the PC did was look at the new evidence and say that it was for a jury, not the Court to determine whether it may have made a difference to the verdict.
    http://www.bailii.org/uk/cases/UKPC/2007/33.html

    The Court of Appeal, on the other hand, made the call that none of the new evidence rendered the core of the Crown’s case unsafe.
    http://www.nzlii.org/nz/cases/NZCA/2003/294.html

    Now, I’m not inviting a discussion on this case, as the matter is obviously before the court. However, I do recommend that people refer to the earlier court decisions (they’re both very readable) rather than rely on the media spin on this case.

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  27. What would Hayek say (51 comments) says:

    Portia – from the PC in final paragraph: The Board has concluded that, in the very unusual circumstances of this case, a substantial miscarriage of justice has actually occurred.

    A PC judgement of this type is rare. Maybe the word “trashed” is a incorrect – it was more a response to big bruv who views seems to be claoser to a system of justice that involves mob justice. I have no wish to discuss the case, but it currently sits in the group of Thomas and Ellis where there is a concern that there can be serious miscarriages of justice given the weight of state resources that can be appplied to obtain a conviction compared to what is available to defence counsel and how viewpoints about an expensive legal aid system can increase the risk of procedural unfairness.

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  28. Portia (204 comments) says:

    WWHS – The PC did not pluck the words “substantial miscarriage of justice” out of thin air. They were simply quoting section 385(1) of the Crimes Act 1961 which read:

    (1) On any appeal against conviction the Court of Appeal shall allow the appeal if it is of opinion—

    (a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
    (b) that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
    (c) that on any ground there was a miscarriage of justice; or
    (d) that the trial was a nullity—

    and in any other case shall dismiss the appeal:

    Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

    Because they were uncomfortable with deciding what the jury might have done with the new evidence, the PC judges decided to allow the appeal and s385(1)(c) was the only ground available to them. Hence the wording “substantial miscarriage of justice”.

    They went on to conclude -

    … the appeal should be allowed, the convictions quashed and a retrial ordered. The appellant must remain in custody meanwhile. The order of the Board for a retrial does not of course restrict the duty of the Crown to decide whether a retrial now would be in the public interest. As to that the Board has heard no submissions and expresses no opinion.

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  29. What would Hayek say (51 comments) says:

    Portia – I thought you didn’t want to get into a discussion on this? and I believe you are missing the wider point about the justice system and legal aid which this thread was about.

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  30. Patrick Starr (3,675 comments) says:

    I was involved in a case two years ago where I had a person struck off legal aid and can tell you Legal Services Agency are just useless. I had to prove to them that this person had made false financial declarations and, I might add some of these declarations were made by his acting counsel and were knowingly false. I will further add that I was so surprised LSA didnt pay much attention I began looking at the acting law firm involved, and found one of the partners involved in the case (and applications) sits on the LSA funding committee!

    I finally had to get IRD to investigate this person and prosecute him before LSA finally would wipe his legal aid. He now has to pay it back
    – What happened to his lawyers? – absolutely nothing! Its an absolute disgrace – jobs for the boys

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  31. F E Smith (3,302 comments) says:

    No, that is not correct, Patrick. While you may have come across an unusual situation (and it must be, as I cannot find an actual LSA ‘funding committee’ anywhere. Do you mean the Board or the Ministry of Justice?) it is most certainly not ‘jobs for the boys’ at all. For the most part the LSA has an appalling relationship with defence counsel up and down the country. Most of us can tell you that we are treated like we are the ones committing the crimes, not our clients.

    When a person makes an application to the LSA, the lawyer will often assist with the applications, but we generally have to go on what our client tells us as we don’t get any funding to do any investigation of our clients means to pay. If you found a person rorting the system, the so be it, but that does not mean his lawyers did anything wrong.

    But it is not jobs for the boys at all.

    Hayek and Alex: there are days when I am on duty that I wonder why I still do the job. Of course, the number of senior counsel still doing duty solicitor work is now exceedingly small. Can’t say I blame them.

    Alex, the increase of 10% for legal aid rates came after a recommendation by the LSA of a 15.9% increase, so it really wasn’t much. Those of us still doing criminal legal aid were talking about a withdrawal of services at one point, but that seems to have gone by the by.

    Forgot about Parker’s background. Why do these numpty’s speak before they bother to find out the facts?

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  32. alex Masterley (1,490 comments) says:

    FES, One of the reasons I don’t do legal aid is the torture accompanies all dealings with the LSA. Having said that and in a half hearted defence of the LSA the system prior to the legal services act wasn’t that much better apart from the fact decisions on (civil) legal aid were made by committees of legal practitioners. The criminal side things were dealt with by the court so we didn’t have to deal with that.

    Re the increase, I have chucked away all the papers I collected through the year on the subject so i had forgotten the LSA recomendation. There was significant momentum here for withdrawal of services but the presence of the public defender would mean the effect of withdrawal of services would not have been so severe.

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  33. F E Smith (3,302 comments) says:

    Alex: fair point on the previous Court controlled criminal legal aid. In our area, the Court and senior practitioners used to also review the standard of practitioners every couple of years so that the level of competency at the bar remained as high as possible. I suppose my point is that the LSA’s admin costs are going up at a rate of knots. Our servicing LSA office has quadrupled in size in the last two years.

    In my region we considered the potential for the public defender coming to our region as well when considering a withdrawal of service (for which, might I say, we have almost unanimous support still), primarily with the point of a stoppage of duty solicitor services for some, yet to be determined, period. The thing is that the public defender scheme already has nationwide roll-out approval, so it is coming to a town near you regardless. The only issue is one of when. That being the case, there is no loss to us. The PDS cannot cover for all of the lawyers it would take to have an effective duty solicitor scheme. If it tries that, it may as well just employ all of the defence lawyers currently undertaking duty work. In my area, that is about half of the registered legal aid providers. Of course, only 2/3 of registered legal aid providers actually undertake legal aid cases, so it is most of the active providers.

    By the way, the idea of a strike is not off the cards yet. It is just a matter of trying to get nationwide support for it, as far as I am concerned.

    The crazy thing is that the government, the prosecution and the police (I have a copy of a letter to the police magazine from last year accusing lawyers of all sorts of criminal activities in relation to their conduct of defences) all see the defence bar as being obstructive within the justice system. So why not just get rid of the cab rank rule, let us pick and choose cases and see how the system gets then? The judges have a horror of self-represented defendants, but that seems to be what the government and the public want, so lets give it to them. I enjoy criminal defence work because it is, in my view, real advocacy, providing assistance to those who are unable to navigate the system themselves. Which is, lets face it, most people. It is also a fascinating area of practice because you learn so much about so many different areas. But I can quite easily concentrate on civil work and earn a lot more money. I find it rather boring, but it is more lucrative compared to criminal legal aid.

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  34. GPT1 (2,089 comments) says:

    Alex the two for one is a reasonable heuristic for estimating preparation time. As you would well know it does not always work out (and skilful counsel who are well prepared can be precise in their examination – an exception rather than a rule).

    Ah yes, the joys of duty solicitor. The mad, the ungrateful, smelly and distitute (and that’s just the counsel!!). Still, everyone should be provided with legal advice (although too often pressures of time make this a salutory exercise only) and there are those to whom court is a frightening (and one off) experience deserving of support and advice.

    The entire legal aid and duty solicitor scheme is so poorly funded that it has become a rubber stamping exercise giving the illusion of access to justice. As FES says let the public and the Ministry have the horror of self-represented clients.

    Anyone who has had the misfortune of dealing with the LSA can give examples of nonsense decisions. An example. I had a young person, a clean skin (no previous offenders) charged with a relatively minor traffic offence. This kid was scared, concerned about the charge and effects on person, reputation and career. Probably overly concerned but understandable. First there was a battle to get legal aid b/c the charge was “minor” and then I was funded for 3 hours on a case that took almost 10 hours preparation (exasperated by a concerned family and the defendant being out of town for education reasons). On applying for extra time I was declined. My ethical obligations are such that I still have to do the work – and LSA relies on this to avoid paying fair amounts. I think I got about $600 for that case – privately (and I am not the heaviest charger by any stretch) it would have been $2k. Perhaps Simon would like to explain how access to justice is going to be promoted with that kind of differential?

    As FES says the only real reason we still do it is because it’s more interesting than other areas of law. But that doesn’t pay the bills.

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  35. reid (15,942 comments) says:

    Is it the case, GPT1, that lawyers in general have become used to fees that aren’t justified since whilst it’s an extremely skilled job it’s not rocket science? Especially in the more routine areas which using Pareto’s law is 80% of the cases (the 80/20 rule).

    I’m not just talking criminal I’m talking across the board. It strikes me that despite the huge numbers of people entering the profession in the last thirty years, the laws of supply and demand appear curiously not to apply to your profession and indeed operate in reverse, with respect to fee structures.

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  36. F E Smith (3,302 comments) says:

    Reid, I used to think the same thing, but then I started working as a lawyer and found out otherwise. While I have a hard time believing it when I hear of the $300 -$500 per hour charged by a lot of larger or boutique Auckland and Wellington firms, the numbers that you get in provincial North Island and most of the South Island ($150 -$300 per hour) actually represent pretty good value for what you are getting.

    I can’t speak about the conveyancing and commercial side of the business, which often seem to have higher fees than litigation, but in litigation we do tend to have overheads and costs that justify the high price. Rare is the firm that doesn’t have to factor in to fees the secretaries, accounts person, receptionist and so on. Don’t forget that it costs me around $1500 per year to be allowed to practice. That fee is closer to $2000 if you are a partner in a firm. Jonathen Temm, mentioned above by Hayek, did some wonderful work on the standard costs that law firms have and their profit margins on legal aid. For Duty Solicitor, at the then $90 per hour including GST, the profit was $6 per hour BEFORE tax! On the lowest, and most common, rate for criminal cases, there was a profit margin of just $11 per hour before tax. Now, if the lawyer conducting the case did an hour for free (like GPT1 did 8 or so hours for free in the case he mentioned) then the law firm makes a loss. So in GPT1′s case, doing legal aid for that kid cost his firm probably over a grand just in chargeable time.

    Not good economics, eh GPT?

    We have seen a large amount of people enter the profession over the last few years, but there is still more than enough work to go around. That said, we still charge a lot less than doctors…

    And I have to say that being a full time criminal defence lawyer, especially if you are doing jury trials, is one of the more stressful occupations mentally.

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  37. reid (15,942 comments) says:

    Thanks, F E.

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  38. Patrick Starr (3,675 comments) says:

    F E Smith

    “No, that is not correct, Patrick”

    They are not funding committees – they are law society legal aid committees nonetheless

    Legal Aid Issues Committee of Family Law Section of New Zealand Law Society
    Family Law Committee and Legal Aid Committee of Auckland District Law Society

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  39. GPT1 (2,089 comments) says:

    If there is one thing more annoying than not earning that much in law it is the perception that as a lawyer you are super well paid and super well off.

    Reid I don’t know in terms of fees. When the scale went there was a price war on conveyancing type products. Some of those fees were more in the 1980s than they are now (without any adjustment for inflation). So as I understand it there was a time where if you had clients you had a steady and significant income. Now commercial firms earn their money from “value added” work. I don’t really claim any knowledge in the area but doing things like sub divisions, mergers and shit that needs to be done right to earn the client money. Civil litigation fees are driven by a rather effective lobby possibly driven by the larger firms and there is a constant concern expressed that scale costs (costs set by the High or District Court rules) do not keep up with the rule of thumb 2/3 of actual costs. From my experience that means someone is charging bucket loads somewhere b/c more often than not a costs award pretty much covers my bill. And then family and to a greater extent criminal is left languishing at the mercy of LSA.

    FE Smith will know but it is worth noting that LSA spend something like 10% of their budget keeping pesky lawyers in line and making sure that no one travels 12km when they could go 11km and save LSA $0.75. For memory the budget is around $100m and around $10m goes in admin. They are becoming a self-justifying organisation – and I see with the Dixon carry on they are entering into the world of publicity for self-justification.

    Excellent.

    Perhaps they could sack a few PR consultants and give an extra hour of preparation here and there.

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  40. Patrick Starr (3,675 comments) says:

    in addition F E Smith.
    You state: “When a person makes an application to the LSA, the lawyer will often assist with the applications”

    The lawyers in this case filed affidavits on behalf of their client which, by its own content proved the client was ineligible for Legal Aid.

    Lawyers are not all stupid – they just want to get paid, and are not too particular who pays them (I think Brian Henry proved that)

    You can’t tell me that some lawyers do not knowingly assist in the applications of fraudulent legal aid applications. This particular lawyer went a step further and even wrote a supporting letter.

    The fact remains who sits in judgement of the lawyers in these circumstances – The Law Society ? pfft

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  41. GPT1 (2,089 comments) says:

    “The cost of criminal legal aid alone is now over $50 million and has blown out by 42% over the last five years.”

    Oh and by the way DPF could you keep the hysteria down. “Blown out” is Sunday Paper-ish. Did you forget that Labour changed the thresholds ensuring that more people were eligible for legal aid? Ignore the increase in expert evidence used by the Crown requiring responsible defence to hire their own experts (something that LSA stats show as income to the legal aid provider)? And how much has administration of LSA increased in the same time?

    Might be worth looking at law changes as well. There are more laws than there were five years ago as it seems politicians only have one answer to news stories – law changes. PD used to involve a van picking PD workers up (ie: turfing them out of bed). Now they just breach them. Breach rates are around 25% and, in Chch at least, breaching PD is a good way to end up in prison. Even although there is usually jack shit a lawyer can do with a breach b/c it is highly possible that prison will occur LSA assigns a lawyer. So another increase.

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  42. GPT1 (2,089 comments) says:

    Patrick – so you are saying that LSA, despite massive admin costs, granted legal aid on information that showed ineligibility?

    Tell me someone who doesn’t just want to get paid? Lack of preparation and a shite hourly rate is bad enough. Having to fill in those effing forms is just painful. And so often the people you deal with simply do not have the capacity to fill out the forms. I had a DS client who I filled a form out on his instructions and when he went to sign it to say it was all true told me that he hadn’t written for a few months.

    I can tell you that I have never knowingly assisted in a false declaration of any type. Why would I? It’s not worth my career. The same will apply to the vast majority.

    What was your point again? That you have some belief that a lawyer rorted the system? Nice argument by exception.

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  43. Patrick Starr (3,675 comments) says:

    GPT1 – thats not the point I was making. I said LSA wouldnt act on the info provided (I had to prove it) and the acting lawyer, also on the Legal Aid Issues Committee of New Zealand Law Society knowingly made fraudulent applications on the clients behalf.

    Funny how the client had to repay the Legal aid – but the lawyer walked away unscathed

    “Tell me someone who doesn’t just want to get paid?” – no one, An armed robber could make the same argument. but when its getting paid out of my taxes I give a shit.

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  44. F E Smith (3,302 comments) says:

    Patrick, again I say you are wrong about lawyers influence with the LSA. And I know you are wrong because I am a member of a committee that deals with legal aid issues for one of the branches of the Law Society.

    The committees you mention are simply the Law Societies own committees and have no statutory or actual power within the Legal Aid spectrum. They are consultative only. I see you mention the family legal aid committees only, one being a sub-committee of a section of the New Zealand Law Society, the other a sub-committee of a branch of that society. You missed the Legal Services committee of the NZLS, which is also relevant and again has no power over the LSA.

    If you make a complaint about a lawyer then yes, the Law Society does judge the case. Just the same way that doctors, nurses, teachers and accountants also have societies that discipline their cases. Who do you think should do it?

    When I assist a client in completing a legal aid form, then I go on that client’s instructions. If a client swears an affidavit then it is the client’s evidence, not mine. I cannot be held accountable for what a client gives as evidence, short of some actual evidence that I knew they were lying. But I would expect all of my colleagues to assist a client where necessary and to do so honestly and I do not believe that my colleagues would knowingly assist in a fraudulent legal aid application. To do so could well cost them their career and, quite frankly, no client, and certainly no legally aided client, is worth that.

    Other than that, GPT1 makes a good point at his post of 2.31.

    GPT1 makes a good point also at his post of 2.22. DPF, you have not pointed out that the number of criminal charges filed have also increased in the last few years. We are not talking about more money for the same number of cases.

    The stats show that in 05/06 there were roughly 47,000 grants of legal aid. The following financial year there were 51,000 and last year there were 52,000. So the numbers of grants have been increasing. What isn’t shown in that figure is that the amount of criminal legal aid is always dependent on the numbers of charges brought by the police in that time. Even more telling is the number of large and complex trials that have gone on in that time. With the abundance of multi-defendant methamphetamine trials that Auckland has seen, as well as the lengthy murder trials that eat up counsels time, you have to expect that the amount of aid claimed will go up.

    Excluding the big jury trials, the average cost of a case is $638. That is less than three hours work at the average legal aid lawyer’s charge out rate, when you consider that 72% of legal aid lawyers have more than 10 years experience. Note that only 10% of legal aid lawyers have less than 4 years, so it generally ain’t juniors doing the work. If you include the big jury trials (and David Bain’s appeal) then the amount goes up to $938.

    Look, those of us who do legal aid are, for the most part, good lawyers who take a real cut in charge out rates so that we can meet what many of us see as our ethical duty. Bridges and Parker speak out of ignorance and should speak to the defence bar up and down the country, not just Auckland, before they denigrate their own profession. If they want to reduce the numbers of defence lawyers then just say so. Heck, take away legal aid. A major firm in my area that did a ton of family legal aid got out of it two years ago and their profits immediately went up! I don’t care if you keep it or get rid of it. Just don’t accuse the defence bar of rorting a system that is predicated on the legal profession providing some members who are willing to take a cut in pay to meet government policy.

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  45. F E Smith (3,302 comments) says:

    Patrick, it is not our application- can you not understand that? The client makes the application, the client provides the evidence and if they client lies then they have to pay it back and they can be prosecuted.

    It is not the lawyers application. I much prefer a private client. They can pay me the $200 plus GST per hour that I charge, rather than the $110 -$138 including GST that I get on a grant of aid.

    Anyway, you appear to be talking family law, not criminal, so it doesn’t count. Plus, I am guessing that you were on the other side, so of course you will feel aggrieved.

    And it is my taxes that go toward it as well.

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  46. dad4justice (7,765 comments) says:

    “The client makes the application, the client provides the evidence and if they client lies then they have to pay it back and they can be prosecuted.”

    Mr Smith ; name one female court applicant ever prosecuted in criminal jurisdiction after telling porkies in the civil family court?

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  47. Patrick Starr (3,675 comments) says:

    “so of course you will feel aggrieved.”

    Not at all. I was just a mckenzie friend – helping out an immigrant family- who’s understanding of our systems was less then mine. something I’ve done that twice just to help out
    “it is not our application- can you not understand that?” no but you have a general duty of care.
    “It is not the lawyers application.” When the lawyer writes a letter of support to achieve the funding I would tend to hold them a little more accountable

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  48. F E Smith (3,302 comments) says:

    Sorry, Dad, can’t help you there! But note I said can be prosecuted, not will be. But then, I don’t view the family court as a proper court, anyway.

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  49. F E Smith (3,302 comments) says:

    Patrick, even if we support the application, we still have to go on what we are told by our client. We don’t get paid to go behind our clients instructions and search out whether they have means or not. If we believe that a client has reasons to get aid even if they don’t initially qualify, then there is no reason not to support that application. It still does not put a duty of care on us and you have not shown how the lawyer had that duty to anybody except the LSA.

    Anyway, there are over 20,000 family legal aid applications a year, and almost 60,000 criminal legal aid applications. Like GPT1 said, you are using the exception to make your argument.

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  50. dad4justice (7,765 comments) says:

    Thank you Mr Smith. The Family Court is a festering wound for countless alienated children and sad dads but every Monday morning the girl lawyers line up for legal aid funded case after case, while dad helps with the rising male suicide rate.

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  51. Patrick Starr (3,675 comments) says:

    “you are using the exception to make your argument.”

    Really? – it would appear both National and Labour MP’s are looking for these ‘exceptions’ as well?
    “Both National and Labour MPs are concerned that some lawyers are milking the legal aid system”

    The same principal applies. LSA would not hold the lawyers to account and I agree with the reports to Bridges
    “rather too cosy relationships between [agency] staff and particular counsel”. Particularly when those counsel are on the Legal Aid Issues Committee of New Zealand Law Society.

    “We don’t get paid to go behind our clients instructions and search out whether they have means or not”
    this is bloody public money we are talking about here – and equally you are not paid to turn a blind eye when you know damn well the client doesn’t qualify. If this was the attitude of say the public service with respect to public money there would be an uproar

    I know you lawyers absolutely hate it when your industry ethics are called into question so of course you may feel aggrieved

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  52. AG (1,777 comments) says:

    “t If this was the attitude of say the public service with respect to public money there would be an uproar”

    Absolutely right. But a lawyer seeking legal aid isn’t a public servant. So the analogy is so weak as to be irrelevant.

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  53. GPT1 (2,089 comments) says:

    The key point Patrick is on a thread discussing the relative merits or lack therein of legal aid and legal aid lawyers you are using one specific example of something you feel aggrieved over. Interesting, I am sure but not really that relevant in a wider discussion. As FES said Bridges and Parker have beefed off with little or no regard for the truth or their colleagues.

    I suspect that $638 a jury case would cause less ripples than “blow out of 42%”. Hell, take a poll and ask 1000 people if they would want to be defended on an indictable charge by a lawyer who is going to get paid $638 for the privilege? Not many takers then?

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  54. F E Smith (3,302 comments) says:

    Patrick, get your facts right. The “Legal Aid Issues Committee of the New Zealand Law Society” is in fact the Legal Aid Issues sub-committee of the Family Law Section of the New Zealand Law Society. It has no power with the LSA whatsoever. Like I said, I sit on a similar committee and it sure as hell doesn’t do me any good in getting favourable responses to requests from the LSA. I say that you are seeing a conspiracy when there isn’t one.

    “this is bloody public money we are talking about here – and equally you are not paid to turn a blind eye when you know damn well the client doesn’t qualify.” Don’t confuse the two here: the first point in that sentence is true, but the second is not. If I know ‘damn well’ that a client doesn’t qualify then I may be unethical but it is still our client’s application that they are responsible for. But I do not ever assist with an application for legal aid where I know that a client is concealing money or assets. Sometimes we put in an application that we think is borderline qualifying and see what the LSA thinks. It is not our decision. And the LSA often asks the client for more information. If they do, it is not my job to provide it because if the client doesn’t get the Legal Aid and can’t pay me privately then I won’t be acting for them.

    However, I would be interested in how we are supposed to search out and discover whether our clients have means they are not telling us about? Go on, what should I be doing, for free, to ensure that the client doesn’t receive any public funding when the other party (whether civil or police) doesn’t think they should have it?

    But, I tell you what, why don’t you write to Simon Bridges and the LSA and suggest that rather than having lawyers assist the client in filling out the legal aid form, that there be a requirement that any application for legal aid has to be made at a branch of the LSA and with an employee of the LSA’s assistance only. I will happily support you for it, because I don’t get paid for the time it take me to help my clients with the application.

    And both the National and the Labour MP’s are talking out of ignorance. Especially Bridges, as prosecutors have a very jaundiced view of defence lawyers. In my region, the defence bar and the Crown have very little to do with each other, so the Crownies don’t find out what it is like in the real world until they arrive at the defence bar. Then you see their attitude change in just a few months.

    Yes, I do hate it when my profession (note, not an industry) and its ethics are called into question. Especially when it is based on one person’s perceived issue with one lawyer, based on a presumption that has not been substantiated. You have yet to tell me that the lawyer knew that the application was false! So yes, I still say you are basing this on an exception.

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  55. Patrick Starr (3,675 comments) says:

    F E Smith. I have run a business for the past 15 years and would spend anywhere between $80K to $200K per year on lawyers. Granted my experience with Legal Aid funded lawyers is confined to the community work I have done and when I have been in the criminal court as a juror but I personally know many lawyers as a result- so I know your ‘profession’ has as many good guys – and crooks as any other industry, so no need for the surprise. The point is (in this instance) the lawyer went beyond the call of duty to seek funding from LSA. In doing so made claims they knew to be incorrect. My point is nobody held the lawyer to account

    “You have yet to tell me that the lawyer knew that the application was false!”
    @2.16 “The lawyers in this case filed affidavits on behalf of their client which, by its own content proved the client was ineligible for Legal Aid”

    A.G piss off. if I wanted your pinko opinion I’d blog at the Standard

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  56. F E Smith (3,302 comments) says:

    Ineligible and false are two different things. Sometimes the LSA makes grants to persons who are prima facie ineligible but for one reason or another the Agency makes the grant.

    False means just that.

    If the person is prima facie ineligible, then the lawyer was not wrong. If the lawyer knew the information was false, then that is wrong.

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  57. Patrick Starr (3,675 comments) says:

    well then we don’t agree. The lawyer knew because the lawyer filed the clients affidavit. The content of the affidavit contradicted the supporting documentation provided to LSA.
    Even though it is available to them I provided a copy of that affidavit to LSA who immediately suspended the funding. At that point the lawyer wrote to LSA arguing the funding was appropriate. Now either the affidavit – or the LSA application was bullshit. The lawyer knew the contradiction.
    I finally provided proof via the IRD who took a prosecution. It wasn’t until that point that the LSA ceased the funding, and the client had to repay.

    IMO if the lawyer knew the application was inappropriate they should have at the very least stood back and not got involved. If they involve themselves they should be held to account if it is proven to be false. They weren’t

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  58. GPT1 (2,089 comments) says:

    Yeah, to be fair, I get pretty annoyed when the profession’s ethics are called into question. Especially when the argument is basically all lawyers are bad b/c I dealt with a dumbass once. The vast majority of lawyers I know are highly ethical and highly committed to their obligations to the court and client. And a good number are not paid commiserate with the hours and committment. If it was fraud complain to the police and/or law society.

    Parker commenting on common law it about as relevant as tree surgeon commenting on biosecurity. Both might work for MAF but they don’t know jack shit about each other’s jobs. Simon has spent too long in the Crown.

    Look I don’t have a great problem with making sure legal aid is fairly used but the inequity is primarily LSA ripping off lawyers not the other way around.

    Legal aid has been underfunded for at least the last decade. The 10% fee increase did little to wind that back. I would be more interested if both parties were looking at 1. who needs the funding and 2. what does the funding have to be in order to obtain quality access to justice?

    “this is bloody public money we are talking about here – and equally you are not paid to turn a blind eye when you know damn well the client doesn’t qualify. If this was the attitude of say the public service with respect to public money there would be an uproar”

    You are missing the point. LSA make the decision. I explain the circumstances and provide my client’s instructions. They declare it is true. There is no way that I will be in a position to know whether it is true or not (although if I was suspicious I would press the client on it). This is not sitting down and discussing commercial documents. Often it is hurriedly done as duty solicitor. Indeed, the only reason I am involved in filling out the application at all (save for the “legal bits” – charges etc) is that the client can’t work out the questions. It is another compliance cost and it is a pain in the ass. I only have a vauge idea what the agency’s criteria is so I will file if in doubt. They can work it out.

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  59. Patrick Starr (3,675 comments) says:

    “And a good number are not paid commiserate with the hours and commitment” and your profession/income is in a position to do so. I used to do a tremendous amount of community oriented work, much not in my field – because I, like lawyers can afford to. I would rather give a hand up……. and I don’t believe in unconditional welfare. There are enough higher-income and professional people around with the morals to help those that will help themselves

    “Legal aid has been under funded for at least the last decade” well when some of these high profile lawyers undertaking high profile cases get real then the pot will be sufficiently full for those that genuinely need it.

    “You are missing the point. LSA make the decision.” With all due respect I think you miss the point. Professional services that have access to public funding (doctors with ACC are another example) are given less scrutiny than any other publicly funded situation. When concerns are raised as to the credibility of an application the LSA (in my experience) took the word of a lawyer – who I later proved was clearly misleading them – the lawyer faced no consequence. Had this been a doctor making a false application to ACC he would have been prosecuted.
    My original post wasn’t so much about the lawyers conduct anyway, it was about (in my experience.) how pathetic the LSA was,

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  60. GPT1 (2,089 comments) says:

    Well we can agree on that last point – how pathetic LSA is.

    We might be at crossed purposes. I just don’t see how you can place an obligation on a lawyer to be clairvoyant. I agree in being honest and not promoting *false* declarations (stopping them if you are aware of it) but unlike ACC which seems fairly well understood (have an accident, get ACC) legal aid has a number of criteria many of which are a mystery to me. Hence they can make the decision.

    LSA simply add to my form aversion!

    I doubt it is so simple as “high profile lawyers undertaking high profile case get real then the pot will be sufficiently full”. In my experience LSA take perverse pleasure in turning down applications for a few more hours based on the fact you are already 3 times the limit and the case is yet to be heard.

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