Editorials on Legal Aid

December 2nd, 2009 at 2:48 pm by David Farrar

Three editorials today on the review. First the ODT:

Even by her own straight-shooting standards, Dame came out with all guns blazing in her Legal Aid Review Report. …

The review, by any measure, is a stunning indictment of the legal profession.

Dame Margaret is one of the country’s top public servants, a former head of the Department of Social Welfare, and is no stranger to conducting such reviews.

Her inquiry of police conduct following the Louise Nicholas furore was similarly hard-hitting, if not quite so unconstrained in its vocabulary.

So it must be held that, as dramatic as it is, her choice of language is deliberate and reflects the gravity of the situation as she sees it.

What I find hilarious is Labour coming out saying how shocked they are, and demanding the Government act. These problems are not new.

The Herald says:

Last Friday, Dame Margaret Bazley produced her damning report on criminal legal aid. By Monday Justice Minister Simon Power had obtained the resignations of most of the administering board, the Legal Services Agency, and the Government decided that day to shut it down. We are not used to such dispatch.

Indeed. What happened to the days of reports gathering dust on book shelves? Simon Power is no ditherer.

And the Dom Post:

Dame Margaret’s report is remarkable for its language – reminiscent of her blunt 450-page report into police conduct, in 2007 – and implicit dismay that a system formed to assist the most vulnerable is operating so poorly, and being manipulated by colluding defendants and legal-aid lawyers. It is littered with references to “widespread abuse”, “taking backhanders”, “entrenched” positions, “poor relationships” and even, “should be disbarred”.

Government reports tend to be diplomatic in their language. The comments are remarkable. It is unfortunate that the wrong doers are spoiling it for the vast majority of legal aid lawyers who are responsible, and in fact take a pay cut when doing legal aid work. One of the solutions may be to pay more per hour for legal aid work, so it doesn’t attract the “bottom of the barrel” so to speak.

When this public servant – the term suits her so well – finally chooses to retire, she can do so knowing the profound effect she has had on the ethics of important parts of New Zealand life. She helped bring compassion to psychiatric hospitals, she redirected the efforts of social welfare agencies to work with entire families, she reformed the unionised nonsense that was the NZ Fire Service, and then administered a hefty kick to the New Zealand Police.

She might be hoping now, however, that she doesn’t need a legally aided defence lawyer in a hurry …

Heh indeed.

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18 Responses to “Editorials on Legal Aid”

  1. mickysavage (786 comments) says:

    This is bollocks.

    Dame Margaret served for years on the risk audit committee of LSA, tasked with assessing risk and monitoring fraud. If there were these problems then why did she not notice them beforehand?

    The rumours about Manukau solicitors were spread by one lawyer who is looking to do a bulk funding deal for the work.

    If I was a Manukau lawyer I would be suing Bazley and Power in defamation. They have just said that there is an 80% chance that a Manukau practitioner is corrupt and on the take.

    The slightest shred of evidence would be welcome.

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  2. LUCY (359 comments) says:

    Cactus said that the majority of lawyers involved in corruption were PI, Maori and Asian. The Maori party will do a deal so that no Maori or PI lawyers are made accountable so you can bet your bottom dollar that the closing of the LSA will be an end to this debacle and after a short period when every one behaves this part of the legal profession will revert back to type.

    It is a pity as those good, honest practioners of the law will get tarred with the same brush.

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  3. david (2,552 comments) says:

    and so a legend is created from BS by a fawning media unconcerned with the thruth or the fact that they should have been there first instead of filling column inches with blather about flowers in the Beehive.

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  4. Matt Long (89 comments) says:

    as they say it’s the 99 percent of lawyers that give the other 1 percent a bad reputation.

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  5. ernesto (257 comments) says:

    mickysavage: “The rumours about Manukau solicitors were spread by one lawyer who is looking to do a bulk funding deal for the work.”

    Apparently the lawyer that spread the Manukau rumour to Bazley is notorious for going to trial with indefensible cases, particularly family violence ones. Having scored a rare high profile leal aid win, the lawyer does indeed seem to be angling to be a major service provider. The new Legal Services Board should audit those who get re-apply for legal aid certification to weed out such lawyers if they have been dragging cases to trial just to pad out fees.

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  6. queenstfarmer (764 comments) says:

    Apparently the lawyer that spread the Manukau rumour to Bazley is notorious …

    A bit of irony there…

    Dame Margaret is spot on with her conclusions. I agree with most of the recommendations and hope Simon Power runs with them.

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  7. GPT1 (2,116 comments) says:

    There have been disturbing reports about quality of lawyers from South Auckland for some time. Indeed, the judiciary CLE recently ran a criminal law intensive to try and improve matters. Although given it cost several hundred dollars one wonders if it assisted those who most need it. The Judiciary will say, off the record, that the majority of problems occur “further North”. That leaves a bit of wiggle room from Chch.

    In terms of the editorials – sigh.

    THe report is not “littered” with references to “widespread abuse”, “taking backhanders”, “entrenched” positions, “poor relationships” and even, “should be disbarred”. It identifies a possible problem, on generally flimsy evidence, and says if it is true [that a lawyer is acting corruptly] they should be taken out and shot, er, disbarred. This relates to a small but significant minority. I would think most lawyers would agree a minority that gets past fingers to toes would be significant and worth addressing.

    It is not a stunning indictment of the legal profession at all. If anything it is far more scathing of the LSA (although decent enough to note that the empowering Act is a shambles and that Labour’s increase in eligibility didn’t help). The reporting of it has, on the other hand, been one sided and sensationalist and a stunning attack on the entire profession.

    One of the major issues in identifying the chaff is what process to take. The statutory processes imposed upon District Law Societies and now NZLS were slow and are now slower. They are also akin to the inquisition for anyone unlucky enough to be complained about (fairly or otherwise). LSA shied away from this process but then didn’t do any reviews of its own (perhaps litigation averse). So the contracting body did not exercise its own discretion or avail itself of statutory complaint processes.

    And then there is the issue that rates are still below the pre 1990 level. As has been well documented firms have increasingly got out of legal aid and there has been a rapid deconstruction of traditional training methods AND quality providers. There are still those of us who do it because that’s what we are (can’t risk a paper cut in the cut and thrust of commercial conveyancing … ) but there are less and less of us coming through and the quality/experienced barristers are disappearing to judical appointment or retirement (seriously, senior counsel ranks can barely keep up with judicial appointments).

    That has lead to significant issues – although I challenge any other government department to produce the results that legal aid lawyers do on less than 1990 rates. The system is close to collapse and there are serious flaws but do you think we would still be policed if the cops were paid and funded at 1990 rates?

    Still, whilst the government and the media have everyone in a lather about corrupt lawyers on gravy trains (if anyone sees that train please point it out to me) it detracts attention away from under funding and buys another few years of cheap legal fees.

    I still think MPs should be required to use legal aid lawyers at legal aid rates for any issues that arise for them.

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  8. GPT1 (2,116 comments) says:

    On the lighter side this from http://www.courtnews.co.nz:

    “I would not be making this submission if I was in Manukau, but I am applying for funding.”

    Defence counsel for an assault accused in the Christchurch District Court, Tony Garrett, explains to Judge Stephen Coyle that he is seeking legal aid funding to get to grips with the huge volume of material on the case — six ringbinders of paperwork including specialists’ reports and four DVDs of interviews. Allegations of lawyers at Manukau misusing the legal aid system were made in a report to the Government this week.

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  9. queenstfarmer (764 comments) says:

    GPT1:

    It is not a stunning indictment of the legal profession at all.

    I beg to differ. The system has been used & abused by lawyers for years. Not all lawyers of course, in fact a minority, but the legal profession has always been one of the most closed, self-defensive and self-serving of all professions and demanding of self-regulation. It hasn’t self-regulated. Sure, the legal aid system has been virtually designed to encourage abuse, but the report is still an indictment (I would say stunning).

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  10. lastmanstanding (1,279 comments) says:

    The NZLS has been covering this and a number of matters up for years, In this case as others have said it was because they were scared to death of being labelled racist given the ethics of the guilty parties,

    So they ignored complaints and are now exposed as a ineffective dysfunctional professional body who has acted no better than a trade union.

    The NZLS need to be investigated as to their ability to govern the legal profession. IMHO they dont cut the mustard and need root and branch reform.

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  11. mickysavage (786 comments) says:

    lastmanstanding

    So they ignored complaints and are now exposed as a ineffective dysfunctional professional body who has acted no better than a trade union

    I disagree. In fact I know of a number of lawyers who are questioning the representation of the NZLS and its failure to require the Government to actually come up with some proof. The statements from the NZLS appear to accept that corruption has occurred whereas there is no proof.

    What ever happened to that basic legal premise “Innocent until proven guilty?” This applies to lawyers too.

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  12. lastmanstanding (1,279 comments) says:

    mickysavage Its standard MO to say theres a lack of evidence when you dont want to find anything wrong and then face the racists when you point out the bleeding obvious that the bros are on the make.

    So instead you quietly shuffle the compliant to the bottom of the in tray and hope it dies.

    Face it NZLS have been caught out by Dame Margaret have egg all over their face so John M has come out of the corner fighting to try and deflect the reality.

    Any professional body that doesnt “know its members” doesnt deserve to have the right to self regulate. Thats the responsibility it takes for itself. If it cant or wont put in place rigorous and robust mechanisms to protect the reputations of its good members then its a failure

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  13. mickysavage (786 comments) says:

    lms

    Its standard MO to say theres a lack of evidence when you dont want to find anything wrong and then face the racists when you point out the bleeding obvious that the bros are on the make

    If it is so bleedingly obvious there should be some proof. Do you have any? Just a skerret? If not you should STFU.

    And disclosing racist prejudices does not constitute proof.

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  14. tarrant (35 comments) says:

    There is no “crisis” facing the legal aid system in NZ, despite what the government and media keep telling the public. The fact is, every day hundreds of people are arrested and processed through District Courts throughout the land, and each and every one of those people gets some form of legal advice or representation, whether it be from a duty solicitor or a legal aid lawyer. Yes there are variations in quality in terms of that advice and representation, but I would still contend that NZ more than meets minimum international human rights standards, in fact, what people get is above the minimum standard by a fair margin. NZ should be proud of this.

    A REAL crisis would involve large numbers of people languishing in police cells and court cells without any access to legal advice or representation – as is the case in some countries.

    If what is meant is a financial crisis, I do not agree that the increasing legal aid bill of 100+ million for legally aided services (which includes family, civil, and Treaty of Waitangi cases) is excessive. Less so, bearing in mind that the figure is heavily subsidised by lawyers working for free – that’s right, every legal aid case involves time not billed for. And bearing in mind that state prosecutions are steadily increasing. And bearing in mind that Judith Collins wrote out a cheque for 180 million for 600 more police recently without batting an eyelid. Etc.

    This is a manufactured crisis to destroy faith and confidence in the independent bar and create controlled, bulk-funded groups of lawyers who can save the government money eg through more guilty pleas. Similar reforms have been tried in the UK with disastrous consequences. Google “legal aid crisis UK” or similar and you will find some very interesting reading.

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  15. GPT1 (2,116 comments) says:

    Queenstfarmer – congratulations on your ability to use adjectives.

    Examples please.

    Lastmanstanding – bullshit. No complaint is ever ignored. They cannot be. The regulation of the profession is set out by the Lawyers & Conveyancers Act and signed off by parliament. In my opinion the rules and client care rules are far to focussed on allowing dickhead ex clients with a grudge to waste everyone’s time than actually test competence (or honesty). The ‘defence’ by John Marshall included information on how to complain about corrupt lawyers. Get those complaints.

    Well said Tarrant.

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  16. F E Smith (3,304 comments) says:

    GPT, well made points in your comments.

    It is only too true that beating up on the legal profession, and defence lawyers in particular, is a popular and populist thing for the MSM to do. That is why these editorials have concentrated on what Dame Margaret has said about the legal aid providers rather than focusing, as they should do, on the fact that an entire Government Agency has been found to be so broken that it is to be disestablished. The failings of the LSA make up the largest section of the report!

    Lastmanstanding and Queenstfarmer: have you actually read the full report, and not just the media coverage? The comments from both of you suggest you haven’t. For the most part Dame Margaret concentrates on the failings of the LSA, appearing to blame them for much of the issues with legal aid, rather than the lawyers. Sure, there is some criticism of some lawyers, but Dame Margaret appears to be at pains to point out in the report that most legal aid lawyers are doing a good job. Indeed, most of her issues appear to be with South Auckland (and Palmerston North!). The criticism of lawyers in the report is indeed based on anecdotal evidence only. Dame Margaret does not provide any actual evidence, merely what she has been told by various interested parties. One of those parties is the court staff, who usually can be relied on to dislike defence lawyers as that is the MoJ culture of seeing defence lawyers as a hinderance to justice.

    Lastmanstanding, the governance of legal aid providers is not within the ambit of the NZLS. It is the responsibility of the LSA. The LSA has expected the NZLS to do its work for it over the years, but the NZLS has always maintained that this is not their responsibility. Dame Margaret appears to agree with that from a technical point of view.

    Edit: You are correct about the dissatisfaction among defence lawyers over the lack of representation from the NZLS. They made a very good submission to the reviewer, but otherwise the defence bar feels like the NZLS has no interesting in supporting it. Most attacks on us are either ignored or agreed with by the NZLS and that is an appalling way to treat its members.

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  17. GPT1 (2,116 comments) says:

    NZLS and John Marshall in particular believe that considered logic and reasoned argument is the best way forward. In an ideal world it would be. With the msm as it is NZLS desperately needs to improve its media savvy.

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  18. queenstfarmer (764 comments) says:

    GPT1: “Examples please.” OK – may I refer you to Dame Margaret’s report. BTW, I agree with your comments on the Rules of Conduct and Client Care.

    F E Smith: skimmed it (you know, like John Key skimmed the 2025 report). I would also be at pains to point that most lawyers do a good job. I have seen first hand, however, manipulation of the system which is completely unacceptable (IMHO) – no doubt others have different standards. The profession, on the whole (and the society in particular) has always been extremely arrogant, insular and self-serving. Thankfully that has changed in recent years and the report (if adopted) will further that.

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