Legal Aid Changes

April 7th, 2010 at 1:10 pm by David Farrar

has just announced some changes to the system. The two major ones are:

  1. A new quality assurance framework where legal aid lawyers will have to demonstrate competency to a selection committee on objective criteria.
  2. Expanding the Public Defence Service to Wellington, Christchurch, and Hamilton.

The Auckland Public Defence Service has been quite successful, so good to see it is expanding.

Hopefully the competency demonstration requirement will help solve the problem of delays caused by incompetent counsel (which it seems is mainly a South Auckland problem).

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9 Responses to “Legal Aid Changes”

  1. MIKMS (163 comments) says:

    From what I understand the problems are not so much the idiots that are employed but the low as hell fees the govt offers to legal aid lawyers. If you are offering only crap wage – like in our health system, you are generally only going to get crap employees. The reason why the Public defenders office is now taking off is because the lawyers there ARE being offered such a wage.

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  2. Rex Widerstrom (5,130 comments) says:

    I’m wary of public defenders employed by the state, versus prosecutors employed by the state… but let’s see how it goes. Presumably there’s very close monitoring planned, at least in the early stages of the roll-out.

    And undoubtedly the competence tests are needed (at least in South Auckland), but then the obvious questions is how the hell did these lawyers pass a degree, their articles, and their bar exam??!

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  3. MIKMS (163 comments) says:

    speech is different from theory…

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  4. peterwn (2,941 comments) says:

    Rex – you can get a LLB (with or without Hons), do Profs, be admitted to the Bar (there are no articled law clerks these days nor bar exams as such) and practice as a barrister without any further ado. It does not mean you are going to be a good or efficient barrister. Ideally an aspiring barrister would hope to team up with experienced barristers in chambers and act as a ‘junior’ on a pittance until he or she gains sufficient experience to take on cases alone. If he or she specialises in commercial law and excels with it, the sky is the limit as far as $$$$ is concerned. Second best is to be a ‘bottom feeder’ for minor criminal cases. If the person shapes up, he or she can do well out of drink-drive cases (their clients are desperate to keep their licences), but AFAIK few criminal defence barristers seem to be considered for judges.

    Some years back, the judges working the District Court got so fed up with some of the lawyers appearing before them, they issued some basic guidelines on what they should be doing.

    Some prosecutors are just as bad IMO – they insist on proceeding with cases when it is obvious that the turkey is not going to fly.

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  5. Poliwatch (335 comments) says:

    “Hopefully the competency demonstration requirement will help solve the problem of delays caused by incompetent counsel”

    That all depends on how competent the assessors are!

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  6. F E Smith (3,277 comments) says:

    Rex and Peterwn: You can’t go straight to the bar these days. The Law Society has brought in rules that mean a person must practice for a period of time (it was six months, but may now be three years- can’t be bothered going back to the rules) AND get law society approval before they will allow you to practice as a barrister. The exception is if you are going to work for another barrister.

    I can’t say I like the changes (Lord Cook only ever practised as a barrister, so these rules would have put paid to that) but as a way of giving a sop to the government I suppose they are necessary.

    I am all for completely separating out the professions and having a system of chambers, clerks and pupillages like they do in the UK. That said, even there people get to the bar and are crap.

    The changes have kept those of us who accept legal aid work (which, don’t forget, is far less well paid than private work) do so partly as a public service and partly because if we want to do criminal defence work then it is a fact of life that in NZ the only real way to do it (unless you are very high profile) is by accepting legal aid. If you ask most criminal defence lawyers, 95% of them would stop accepting legal aid tomorrow if they thought they could earn the same, or even a bit less, money without it. It is my goal, as well as most other legal aid providers, to eventually be able to say ‘goodbye’ to the legal services agency and be completely private. Far less paper work and much more money!

    But because we do it for much lower wages does not mean we are mostly rubbish. Some of the best practitioners in NZ accept legal aid and in many parts of the country there is a very high standard. The Bazely report was always going to advise that the PDS expand, because that is what Simon Power wanted. However, you will notice there is far more criticism in that report of the Courts and the LSA than there is of the lawyers.

    Peterwn, the fact that few defence lawyers are considered to be judges is more an MoJ bias against criminal defence work than competency. There are some shocking prosecutors who have far better chance of becoming a judge by dint of their role, than their competence. Likewise, it seems odd that so many family and civil lawyers end up as District Court judges doing 90% criminal work. The idea of horses for courses hasn’t yet hit the MoJ.

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  7. GPT1 (2,043 comments) says:

    It is three years before you can practice on your own. And probably before time. That would not prevent FES, for example, coming to practice as he did – under supervision of senior counsel.

    No issue with the competency standards. These are well past time and it is a disgrace that LSA never moved on this issue at all. In fact they played three monkeys and hoped all was well. My one concern is that the competency standards will be overly prescriptive and a further compliance cost. Most of the competency issues would never have arisen had LSA actually asked for the opinion of various law society committees rather than confirmation that x laywer had done the right courses. Ludicrous.

    Peterwn – re. prosecutors advancing cases that will not fly I have not seen that as often as I have seen unnecessary cases or overcharged cases proceed. SG guidelines have something about public interest in them – more prosecutors would do well to read it (and advise their clients of the same – particularly in miscellaneous prosecutions such as customs, maritime etc).

    Saw the news article tonight. Mentioned top receivers of legal aid (not by name) but failed to make any breakdown of where legal aid goes. Despite presenting legal aid as almost solely criminal a massive amount goes to Treaty matters (NOTE government is making no changes there despite persistent gravy train rumours). Some goes to civil and a good chunk to family as well.

    Not sure how successful the Auckland PDS has been. DPF do you have any independent reports? The reviews I have seen are all MOJ/LSA/PDS saying how great they are going. Surprise, surprise. One good thing about PDS is it will stop the practice of trolling for customers as duty sol. The bad thing – denial of choice and potential for justice by numbers is concerning. There has been some concern expressed (rightly or wrongly) that the PDS is more answerable to MOJ than clients. Ie: guilty pleas are at a premium.

    Finally I note a story about MPs having their legal fees covered by parliamentary services. I agree, where a case arises as part of their job. However they should be allocated legal aid. If they want to tell me that $108 an hour inclusive of GST and overheads is enough to provide a defence then the same should apply to them as well.

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  8. tarrant (35 comments) says:

    So-called “incompetency of counsel” is only one possible factor contributing to delay in the criminal courts. I don’t think competency tests for legal aid counsel will make any significant impact on the problem. There are so many systemic factors giving rise to delays; counsel competence would be the least of them. Defendants missing court dates would be the biggest contributing factor to this problem. Or turning up so late that the lawyer has got fed up with them and left. Meaning that another court date has to be allocated and/or legal aid re-assigned to another provider.

    Unless you work in the system, it is difficult to understand the frustrations involved in trying to help people who really have nothing left to lose.

    The PDS propaganda is misleading. It is common for PDS lawyers to leave their clients waiting all day, or most of the day. Legal aid barristers are held to a rough-and-ready rule of needing to turn up to court for a new legal aid assignment within half an hour. The PDS are held to no such rule, as far as I can ascertain. They simply turn up when their schedule allows, or not at all. Duty solicitors are constantly remanding off PDS clients to another court date because the PDS lawyer has not arrived.

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  9. GPT1 (2,043 comments) says:

    So true re. defendants missing court dates.

    But in terms of competency it is important to keep one’s house in order and I have no problem with access to the ranks of leagl aid (and for that matter the profession as a whole) being limited to competent people. As you say it probably will not impact greatly on systemic delays inherent in the whole system.

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