A Public Defenders Office?

April 3rd, 2009 at 1:00 pm by David Farrar

Simon Power is reviewing legal aid:

Power said yesterday that he hoped a review of , to be undertaken by Dame Margaret Bazley, would consider the possibility of creating a public defenders office in New Zealand that could handle at least lower-level criminal cases.

Under such a system, lawyers working for the Crown would defend low-income earners or those who could not afford to pay for their own defence.

New Zealand has a Crown prosecutors office, but no such system for defendants. Public defenders are used in many countries, including the United States and Australia.

The Labour government introduced a trial public defenders office at the Manukau District Court last year, which was considered successful. The pilot programme has been extended for another year.

I’m all in favour.

It was unlikely the Government would scrap private legal aid entirely, with payments direct to lawyers still the most likely option for complex cases or murder charges where a Queen’s Counsel could be required.

Power said that while the review was not about cost-cutting, some lawyers were “gaming” the current system with unnecessary appeals and court appearances.

Labour deputy leader Annette King said the party would support a public defenders office.

Great. Make it happen!

Tags:

44 Responses to “A Public Defenders Office?”

  1. Redbaiter (13,197 comments) says:

    So what’s the budget Simon?

    ..and where are the results of the cost benefit analysis?

    How much money are you going to take from taxpayer’s pockets to line the pockets of incompetent snot nosed briefs (otherwise unemployable) to defend the legions of criminals flooding this country.

    Public defenders cost a fortune. NZ is not a rich country.

    Surely right now, there are more important priorities for tax payer funds.

    Like leaving the money that would go to the lawyers in the pockets of those who have earned it.

    [DPF: I think you will find the idea of a Public Defenders Office is it will save money, not cost extra money]

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  2. Ratbiter (1,265 comments) says:

    Redbaiter is quite right. It would be much better for everybody if poor people just had to try to defend themselves in court. If they can’t afford defence counsel, they are probably guilty as sin anyway. Sounds fair to me.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  3. MikeMan (171 comments) says:

    From the Legal Aid fund that many lawyers a bilking I would assume.

    Hows this for an idea (Numbers are anal proctology and are meant for example only). Graduate lawyers do two years as a public defender on $50K/PA and get a 20K additional credit against student loans at the end of the two years. They get a heap of trial experiance and we get fairly cheap public defenders rather than paying many hundreds of dollars an hour through the Legal Aid system?

    Why would this not work and be cheaper than the current legal aid system?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  4. Ratbiter (1,265 comments) says:

    MikeMan – Sounds good, except that I can imagine an old pro prosecutor ripping into inexperienced young grad defenders and making them look like idiots regardless of the rights and wrongs of the case. Could there be a way of stopping this from being a problem?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  5. Redbaiter (13,197 comments) says:

    Think about this people.

    Almost every alleged criminal in NZ, if they’re ever so damned unlucky to be caught by a dysfunctional mismanaged police force, that gets one of those pathetic five year but out in two if you behave sentences handed down by weak kneed judges completely out of touch with public sentiment, and is housed in jails with heated floors and plasma TVs, is now going to have some bleating liberal lawyer whining on and advocating a lenient sentence because its not the perp’s fault that he robbed and beat and trespassed, but its all down to the trauma caused from the time his father once beat him after he caught him having sex with his sister’s Barbie doll.

    That’s what your money will be used for.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  6. Graeme Edgeler (3,267 comments) says:

    Sounds good, except that I can imagine an old pro prosecutor ripping into inexperienced young grad defenders and making them look like idiots regardless of the rights and wrongs of the case. Could there be a way of stopping this from being a problem?

    Well, you could staff a public prosecution service the same way :-)

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  7. MyNameIsJack (2,415 comments) says:

    MikeMan (17) Vote: 2 0 Says:

    April 3rd, 2009 at 1:22 pm
    From the Legal Aid fund that many lawyers a bilking I would assume.

    Hows this for an idea (Numbers are anal proctology and are meant for example only). Graduate lawyers do two years as a public defender on $50K/PA and get a 20K additional credit against student loans at the end of the two years. They get a heap of trial experiance and we get fairly cheap public defenders rather than paying many hundreds of dollars an hour through the Legal Aid system?

    How about using these kiddies as prosecutors, too? Imagine the savings!

    Fucking idiot right “I only care about dollars” idiots!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  8. MikeMan (171 comments) says:

    I would see a permanent staff of experianced supervisors to combat this sort of move. Maybe have a rule where a supervisor sits in on the first few trials for a rookie and can interject if needed. Also the public prosecutors office could be reorganised in a similar fashion.

    The rookies only handle minor cases with the seniors taking the more important cases with longer potential sentances.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  9. dime (9,453 comments) says:

    how bout everyone has access to the system.

    if a “rich prick” earning 60k a year doesnt want to shell out 50k defending himself.. he can choose a shitty public defender free of charge.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  10. F E Smith (3,302 comments) says:

    Ok, you all knew that I would get in on this sooner or later…

    And, just for information sake, I would class myself as a ‘bleating liberal lawyer’. I consider myself quite conservative, and it is that conservativism that makes me concerned with this issues of liberty and justice. In no way do I ever defend the commission of crime. I defend people alleged to have commited crime, or, if they admit the offence, I represent people who have committed crime but do not defend their actions. It is a profession that can trace its roots back over 2000 years.

    So…

    There is a Public Defender scheme pilot in Auckland and Manakau. It has been going for 4 or so years now and has approval from the LSA to be rolled out around the country. In its reports, it is not shown as being much cheaper at all than using private providers.

    By the way, Mikeman, here are some facts for you and others to work with in your discussion.

    There are four levels of legal aid categories.

    PC1: Summary (judge alone) up to 10 years imprisonment as a maximum penalty. Lawyers with 1 – 4 years experience: $105 per hour; 4 to 9 years experience $110 per hour and lawyers with over 9 years experience $121 per hour. All include GST in their rate. This category accounts for 90% of all criminal legal aid cases.

    A straight guilty plea is a set fee of between $240 and $330 including GST, no matter how much work is done.

    Prep time for a case is set at 3 hours for the entire case, plus hearing time at whatever above rate is relevant. Most defended cases are generally under 2 hours in hearing time.

    Appeals to the High Court: between $375 and $500 set fee depending on the type of appeal.

    PC2: Jury Trial up to 10 years imprisonment as a maximum penalty. Lawyers with 1 – 4 years experience: $110 per hour; 4 to 9 years experience $138 per hour and lawyers with over 9 years experience $143 per hour. Again, all include GST in their rate.

    Pret time is set at 5 hours for this category. This will have to alter now that depositions is being abolished, but won’t change by much as deps only gets 2 hours prep, or a total of 7 for the whole case. Now, if you show me someone who can prepare for an entire jury trial in 7 hours then stay away from them because they aren’t doing it properly.

    PC3: Jury trial up to but not including life imprisonment as a maximum penalty. Lawyers with 1 – 4 years experience: $132 per hour; 4 to 9 years experience $143 per hour and lawyers with over 9 years experience $154 per hour. All include GST in their rate.

    Set prep time is 10 hours. Hearing time (usually 6 hours per day) and a per hour basis.

    PC4: All matters with life imprisonment or preventive detention as a maximum penalty. Lawyers with 1 – 4 years experience: $149 per hour; 4 to 9 years experience $165 per hour and lawyers with over 9 years experience $182 per hour. All include GST in their rate.

    Set prep time is 15 hours. Hearing time (usually 6 hours per day) and a per hour basis.

    Now, compare to Crown rates which are also in three grades and are (approx) $130, $150 and $198 per hour excluding GST. There are no proceedings category levels, they are all paid on the experience of the lawyer.

    Mikeman, if you offer $50K, even without the loan, you will get a lot of takers. In my region the starting salary for lawyers is around $30K. I know people with close to 10 years experience who are only just above the $50K mark.

    Just don’t forget that the reason that we spend a lot of money on the scheme is mainly because a lot of people are eligible for it, not because lawyers are ripping off the system. The average payout is (from memory) under $1000 per case. The huge figures you all get told about are for the very large cases where the police and crown throw huge amounts of disclosure at the defence and the lawyers have to go through all of it. How long do you think it takes to go through 100,000 pages of disclosure? I have been on cases with that amount but we still don’t get paid the work we do. I calculate that between 30% and 50% of my time on legal aid cases is not paid for. And that is pretty average.

    Don’t forget, also, that only 10% of lawyers are even registered to do legal aid. So 90% don’t touch it. That means that the allegations that lawyers are bilking the system only really applies to the 1000 or so willing to do it. Actually, last year it was 843 lawyers. Roughly 8% of the profession. And that includes those who did only one case (somewhere between 100 and 200 of that number).

    By the way, the public defenders office actually does pay better money than the private providers. That simply continues the recent habit of government departments paying better wages than the private sector.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  11. F E Smith (3,302 comments) says:

    Ok, where is the edit function? I mean that I would NOT class myself as a bleating liberal lawyer! Go on, make your jokes…

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  12. big bruv (13,312 comments) says:

    “Costly legal aid cases include the current David Bain retrial, which will cost the agency at least $1m, the Chris Kahui case, which cost $500,000, and the Scott Watson case, which cost $623,740.

    The former Labour government gave the agency a 10 per cent increase in its funding last year, taking its expenditure to $112m, but the budget is up for review again this year.

    Oh the poor legal profession, however will they cope?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  13. F E Smith (3,302 comments) says:

    Jack, the crown prosecutors are all in private firms and are often taken either straight out of law school or after doing some clerking for judges. They aren’t paid great wages, either. But it does mean that all jury trials are conducted by private firms, acting with a crown warrant, on a for profit basis. And they are super profitable.

    The Police have their own proseuctions service, which uses a mixture of sworn officers and non-sworn lawyers. The wages there are far better than in private practice, at least for a few years!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  14. F E Smith (3,302 comments) says:

    BB, we will cope fine. We will just stop doing legal aid. Just like we stopped doing tort cases when ACC came in and took almost half of our business away in one go.

    The Bain case will cost almost $5 million all up for defence costs. I am unsure if that includes from 1994, but I suspect it does. Crown costs will exceed $15 million.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  15. F E Smith (3,302 comments) says:

    “New Zealand has a Crown prosecutors office, but no such system for defendants”

    Rubbish. See my post a couple above this one. All crown proscutions are done by private firms acting with a crown warrant.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  16. big bruv (13,312 comments) says:

    “The Bain case will cost almost $5 million all up for defence costs. I am unsure if that includes from 1994, but I suspect it does. Crown costs will exceed $15 million”

    All the more reason why we should have hung or shot the prick immediately after he was found guilty the first time.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  17. dad4justice (7,790 comments) says:

    Obviously the foolish big blouse has not followed the Bain trial this week. All I can say, is thank God for the privy council and shame on the police.

    A public defenders office would help stop police bringing unfair cases to Court and also address the diabolical trial time restraints and schedules.. I know many judges would welcome the move. It would save the tax payer heaps, but I don’t expect you to understand big blouse!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  18. NOt1tocommentoften (436 comments) says:

    A public defenders office would help stop police bringing unfair cases to Court and also address the diabolical trial time restraints and schedules.. I know many judges would welcome the move. It would save the tax payer heaps, but I don’t expect you to understand big blouse!

    D4J – I’m interested in how you think having a public defenders office would allegedly reduce the number of frivilous prosecutions being bought by the police? You haven’t explained this point.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  19. F E Smith (3,302 comments) says:

    N1TCO: how would a public defenders office stop police bringing unfair cases to court? Nor do I see it addressing the time issues with the Courts.

    Could you elaborate, please?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  20. F E Smith (3,302 comments) says:

    Ah, sorry: D4J, that should be directed at you!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  21. NOt1tocommentoften (436 comments) says:

    F E Smith – sorry I shoudl have been clearer – this was D4J’s comment – I was asking him the same question… I fail to see his point myself.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  22. dad4justice (7,790 comments) says:

    A public defenders office that operated without any ideological ties to the New Zealand police would be able to scrutinize many cases which are passed on and taken for granted by Crown prosecution lawyers.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  23. alex Masterley (1,491 comments) says:

    I was waiting for your comment FES.
    Well said as always.
    The Public Defender pilot in Auckland and Manukau made the private providers pick up their game when it came to presentation and preparation of cases, which has made life easier for all concerned particularly in Manukau which is the busiest court in the country.
    Also people need to remember legal aid goes to Criminal cases, Civil cases, Family cases and finally Treaty of Waitangi claims. FES is pretty much on the mark when he talks about the average cost of cases under legal aid. The real black hole are the Treaty of Waitangi cases which suck up an enormous amount of money and which I understand are under some scrutiny.
    Finally in the last year or so there were changes to eligibility for Legal Aid so that many more people now qualify for it. Yet the number of providers have at best remained static. The reason is that in the main people aren’t interested in getting out of bed for the remuneration levels that FES sets out.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  24. Madeleine (230 comments) says:

    One of the few things I support public funding for is access to justice. Lets hope this comes off.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  25. alex Masterley (1,491 comments) says:

    I can’t see a public defenders office acting in the way DFJ suggests as it’s role isn’t to review the decision by the police or the crown solicitors to prosecute rather it is to help people deal with the consequences of the decisions to prosecute.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  26. F E Smith (3,302 comments) says:

    D4J: I suspect you are thinking of a Crown Prosecution Service similar to the one they have in the UK. It is a good suggestion and I would wholeheartedly support it. But a Public Defenders Office would play no part in scrutinising charges laid by the Police. They would play exactly the same role that defence lawyers do at present.

    alex: Good point re the Treaty claims. They are the biggest fees on Legal Aid, followed by (I think) some civil group action cases.

    Don’t forget that the $100 million includes Family, Civil and Refugee legal aid as well, everybody.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  27. dad4justice (7,790 comments) says:

    alex, another one who doesn’t understand my reasoning , look many legal aid defence lawyers are in the pockets of the police.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  28. dad4justice (7,790 comments) says:

    To the learned Mr Smith, I have many examples to the Justice Minister. Maybe the big broom is going to some judicial sweeping?

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  29. big bruv (13,312 comments) says:

    D4J

    Followed the trial, read all the books and unlike you I maintained an open mind throughout.

    Bain is as guilty as sin.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  30. alex Masterley (1,491 comments) says:

    Legal aid lawyers in the pockets of the police? None that I know of up here.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  31. Manolo (13,378 comments) says:

    “.. the idea of a Public Defenders Office is it will save money, not cost extra money”

    Call me a cynic, but how many government initiatives actually save money? The number zero comes to mind.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  32. emmess (1,371 comments) says:

    Anyone watch Underbelly?
    That scumbag Peter Williams QC was mentioned as Terry Clark’s lawyer, then his assistant had affair with him.
    This is probably common knowledge to the older reader’s.
    Yeah, sure have a Public Defender’s office pay them pro-bono rates – anything to stop money flowing to the likes of Peter Williams, Marie Dyrberg Chris Comeski etc

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  33. Razork (375 comments) says:

    emmess

    100% agree and yes.
    1st series on dvd was the best thing i have watched in years.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  34. F E Smith (3,302 comments) says:

    emmess: the Police have a hard time grasping the concept that anyone would act for someone that the Police think is guilty. It is an odd failing to have on their part but they often just don’t get it. I had a colleague who was burgled a while ago. When they charged someone with it one of his friends was asked to act for the accused person, which of course she agreed to do. One of the police asked this person how she could possibly defend a person who was accused of ripping off her friend!

    Now, on the point of Peter Williams: The cops thought that because Peter was defending persons involved in the Mr Asia syndicate that therefore he must be involved as well. They had no evidence for that supposition, but then the police often don’t require evidence to come to conclusions. The coppers were most upset when they couldn’t nail Peter, mainly because there was absolutely no evidence that he was involved! Again, it is the warped thinking that the lawyers are defending the crime that causes the problem. We don’t. We defend individuals who may or may not have committed a crime.

    I don’t know what you mean about paying pro-bono rates. After all, acting pro-bono means working for nothing. You do know that? I don’t see why any defence lawyer is any worse than any others, other than those you have mentioned are in the public eye from time to time.

    Mind you, your post was a little off topic. Perhaps you just don’t want to have defence lawyers exist at all? Easy to achieve, just get it adopted as government policy and then pass it into legislation. The 300 or so defence lawyers who do most of the criminal legal aid work in the country will easily find other forms of litigation to work in. No problem.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  35. Redbaiter (13,197 comments) says:

    [DPF: I think you will find the idea of a Public Defenders Office is it will save money, not cost extra money]

    I understand this might well be the intention.

    Someone still needs to do the numbers before I’m convinced, and FES above seems to agree that its not necessarily going to be a cost saver.

    Legal aid is granted. A defendant has to qualify. However, if there are public defenders, all it will mean is that those who don’t qualify for legal aid will instead be acted for by a public defender. Therefore expenditure on lawyers will increase, when lawyers are a species that is already in over-supply and crippling NZ by means of the economic millstones of the TOW and the RMA.

    Now they’re going to be arguing the detail on all kinds of petty offences, and that often means getting guilty parties off on mere technicalities. And parents struggling to put food on the table and educate their children and keep them healthy and well clothed are going to be paying for it.

    Perhaps if the money to pay for it came from the re-hab/ parole budget, I might allow myself to be a little more supportive.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  36. Redbaiter (13,197 comments) says:

    “The 300 or so defence lawyers who do most of the criminal legal aid work in the country will easily find other forms of litigation to work in. No problem.”

    In Singapore, don’t they have a limit on the number of law graduates?

    Good idea or bad idea?

    I’m with Mencken myself, when he said-

    “If all lawyers were hanged tomorrow, and their bones sold to a mah jong factory, we’d be freer and safer, and our taxes would be reduced by almost half.”

    After all, lately the EFB and so much other almost criminal legislation has come from the work of lawyers.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  37. Viking2 (11,140 comments) says:

    We also need an independent Prosecutors Office so that anyone who can prove a crime can have the criminal hauled into court.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  38. F E Smith (3,302 comments) says:

    Redbaiter: we have a limit on the number of students each law school can take. For the 4 major law schools plus Waikato, there is a limit of 200 per year, although Auckland usually takes double that! I don’t know what the deal is for the new AUT school. Also, remember that over 90% of new graduates do either commercial law or civil litigation, so in reality limiting the number of law grads would have no effect on the numbers doing legal aid.

    And don’t blame us for the EFB: that was purely political!

    The Public Defender will only act for people who qualify for legal aid. There is pretty much no difference between the Public Defender Scheme and a private legal aid office, either in outcomes or in cost. It really is legal aid in a different form. By the way, the PDS offices in Auckland/Manakau have problems with staffing themselves. Last I heard, they were running two lawyers short so they could save money. Funny that would happen just around the time of the review on whether they were cost effective…

    In Auckland/Manakau the PDS automatically gets one third of all assignments. They are also supposed to do duty solicitor as well, but are renowned for being the last to turn up and the first to leave. But of course that is a staff issue rather than a philosophical argument.

    No-one has yet to show that a public defender scheme is in anyway going to save us money. All of the hysteria about legal aid is based on a small number of large cases where the victims families or the police complain that the accused person defended the case. No-one seems to realise that cases that take a long time are that way because the Police choose to bring a lot of evidence. I have done a few trials longer that took more than a month and I can say that in no way did the defence contribute to it taking that long. The reason I say that is because we brought no (or little) evidence! Almost all of the witnesses were police witnesses, being called so that the police could meet the burden of proof. In fact, I have had cases were I have offered to admit witnesses by consent but the police have insisted on calling the witnesses regardless!

    I welcome a review, because I suspect that it will show up just how badly off we are for defence lawyers. What I suspect, other than a PDS office in each major city, is that the LSA will get to pay cases on a lump sum basis. That is not a good idea and has caused huge problems in the UK, where they have had a huge drop in defence lawyers doing legal aid cases.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  39. reid (15,954 comments) says:

    My perception FE Smith, is that what the public needs, is sunlight on the legal profession.

    Law is a skilled profession involving many disciplines but it’s not rocket science. Deregulating conveyancing for example will produce some significant mistakes from amateurs who don’t spot the flaw, but in most cases the transaction will pass through smoothly. I imagine other legal disciplines are the same. A lot of it is straight-forward, but you need skill and experience to spot the hidden under-current which arises only occasionally.

    Westminster criminal law is based on the philosophy of acquitting 1000 guilty men in order that you don’t convict the one innocent. The whole system is geared to that. Resulting in most cases being over-engineered. How can we change that?

    Commercially, the productivity improvements given by the legal profession to society are frankly questionable compared to the improvements given by say, scientists, who I dare say aren’t paid on average nearly as much. Many commercial contracts are based on templates cut and pasted many times but charged every time as if they were an original.

    Seems to me there is a good argument to the effect that the burden of proof is on lawyers to prove their value.

    The politicians of course over the last twenty years and in the last nine in particular have been most valuable in producing fertile ground.

    It would be rather helpful to the rest of us if lawyers could get together and design a simpler system to achieve the same thing but without the overhead. That might change the public perception of the profession.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  40. tvb (4,208 comments) says:

    The Minister seems to be wound up by lawyers “gaming” the system”. But the real fault lies with the way the Crown is funded in prosecutions. There you have a money train created by funding private law firms to do prosecutions. The old tactic is to deliberately “over charge” people, and then generate a huge jury trial costing a vast sum of money taking up huge amounts of Court time. I simply cannot believe this half baked review is going to focus on a small part of the criminal justice system because of a few lawyers making unmeritorious bail applications and appeals. No one in my experience wants to spend too much time in the High Court running losing cases there, – it is vastly uneconomic. The start of the churn starts with the Crown Prosecutor. Many lenthy lengthy trials could be avoided if the incentive structure was taken out of the prosecutor seeing the prospect of such a trial being a huge money spinner for ALL lawyers being involved. But to break that cycle one needs firstly to look at the money making incentives that lie with the Crown Prosecutors.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  41. F E Smith (3,302 comments) says:

    “My perception FE Smith, is that what the public needs, is sunlight on the legal profession.”

    No problems with that, I welcome transparency in all areas associated with public money. Just so you know our files are audited on a random but relatively regular basis. Very senior lawyers conduct the reviews and report back. (I know one of the reviewers and having seem him at work on it I can say he does a very thorough job. His view is the Government gets very good value for money)

    “Westminster criminal law is based on the philosophy of acquitting 1000 guilty men in order that you don’t convict the one innocent. ”

    No, that is a statement from William Blackstone, one of the first to write a commentaries on the Laws of England. His book is still a classic. The expression is that we would rather 10 guilty mean go free rather than convict one innocent man. This is not the basis of the criminal law system, which often then and today took the opposite approach. Blackstone was at the bar at a time when a person could be hung if he/she (including children under 10) was convicted of stealing more than 5 shillings worth of goods. Where a half dozen jury trials could be disposed of in a day. Where there was no right of appeal for any accused. Where the accused was not allowed to give evidence in his/her own defence. The statement was really one of aspiration more than anything else, because it was well known that the innocent were often executed along with the guilty.

    “the productivity improvements given by the legal profession to society are frankly questionable ”

    I don’t think lawyers are about productivity improvements. We are really about the Courts and the extra services that my commercial brethren provide are relatively recent additions (in the last few hundred years). Don’t forget that you don’t have to use a lawyer and we are not government employees. If you want to draft contracts, wills, employment agreements, property relationship agreements and so forth yourself then you are most able and welcome to.

    “Seems to me there is a good argument to the effect that the burden of proof is on lawyers to prove their value”

    I think you miss the point of this discussion and also the concept of the legal profession. No profession has to prove its value, unless I suppose you are looking for the Government to abolish the legal profession? No problems for me there, I have a back-up career!

    “It would be rather helpful to the rest of us if lawyers could get together and design a simpler system to achieve the same thing but without the overhead.”

    I think this is part of the problem- lawyers haven’t designed the current system. It has been designed by politicians. You seem to think that we live in an American type system of challenges to government policy via the Courts. We don’t. In this country we all work according to rules put in place by policitians. For example, if lawyers had their way we would still have appeals to the Privy Council. We are in exactly the same position as you in this, it is just that people dislike us more.

    tvb: Well said!

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  42. F E Smith (3,302 comments) says:

    just a point on the issues of unmeritorious bail applications and appeals, and taking matters to trial:

    We act on instructions. That is the cornerstone of our professional obligations and is enshrined in the rules that govern our profession. We don’t tell our client to make a bail application. That is not our role. Our client instructs us to make a bail application on his/her behalf. If is is without chance of succeeding then we can (and do) tell them, but we cannot refuse to make the application.

    If a client wants to take a matter to trial, whether it is summary (judge alone) or jury trial, then we must do so. We cannot refuse to as that is grounds for us being professionally disciplined by the Law Society. We can tell a client that they haven’t a chance and should plead guilty, but we cannot and must not overrule their right to put the police to proof. We do not make these decisions for the clients. They do it after listening to our advice. They do not have to take our advice but we have to act on their instructions.

    Most clients do take our advice, by the way, which is why the District Court functions relatively smoothly.

    Again, we do not advise clients to appeal, the client instructs us. I have had times when I have advised there was no grounds for appeal but I have been instructed to appeal anyway. In those instances then I must progress the appeal.

    It is a misunderstanding by the public and just sheer ignorance on the part of the media to blame these things on lawyers. They are not that way because of us. If you want to short circuit the system, give us the right to decide what our clients do. You will get a lot more guilty pleas (because it is more money, quicker and for less work!) than you do now.

    The Court system is overloaded because there is crime and becuause the Police take these cases to Court (perhaps a Caution system like the UK has would be a good idea?) and because the big trials are just that- really really big. Trial lengths are determined by the Crown, not the defence, as it is the Crown’s case to bring, not the defence’s.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  43. dad4justice (7,790 comments) says:

    “Again, we do not advise clients to appeal, the client instructs us. ”

    I instructed a defence lawyer to appeal conviction and sentence. He said no way. I went ahead myself and beat the trumped up police charges. The lawyer is now a judge and he reads this blog.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote
  44. For the under dog (1 comment) says:

    Redbaiter,

    A name that would suit you better would be Redneck!

    I wonder how you would react to not being able to afford a lawyer in the event of being accused of a crime. Not too well I imagine. In-fact I wouldn’t hesitate to bet that in your frustration you would turn to the last tenable defense of the poor, silence.

    You rant on about the cost of a legal aid office, what of the cost of a crown prosecution office? And did you just put a price tag on justice? Put yourself in the shoes of the wrongly accused and ask yourself how you would react.

    My moral qualms aside I would like to point out that a public defenders office would be a fraction of the cost (both monetarily and in terms of justice) of New Zealands current broken legal aid system.

    Vote: Thumb up 0 Thumb down 0 You need to be logged in to vote

Leave a Reply

You must be logged in to post a comment.