This entry was posted on Monday, February 27th, 2012 at 6:57 pm and is filed under NZ Politics.
You can follow any responses to this entry through the RSS 2.0 feed.
Both comments and pings are currently closed.
52 Responses to “Defence lawyers sue over legal aid”
Well, it is a judicial review; the CBA isn’t actually seeking any damages. It (rightly) says that the decision is awful. I note that the Law Society of England and Wales judicially reviewed similar changes last year and they have now been put off for a complete re-design.
The MoJ’s changes are just plain awful and will have a severely detrimental effect on criminal justice in NZ. We have already seen a significant drop in number of all areas of legal aid, and these changes will just make it worse.
To require a 10% reduction in payments already being made on a 1996 basis is somewhat extreme, especially seeing how the politicians driving the changes have had significant increases in their own pay since then.
And, Andrei, the CBA’s members will be paying for it. Unlike everybody else, the defence bar pays its own way. (add favoured term of abuse here).
What would also help was ‘equal’ access to forensic services, forensic services shouldn’t be the domain of the Crown with the defence required to rebut with their own experts as a necessity. The Crown want to ‘own’ a lot of the resources which is a disadvantage to the course of Justice, equal access and opportunity to have evidence scrutinised is a fundamental for both sides. The same extends to payment for legal services rendered, I can’t believe any reason justifies an imbalance in payment between Crown or defence Lawyers – it should be perfectly balanced like the scales of Justice, equally so does the access to forensic services helpful to the course of determining guilt or evidence. The system we have at the moment is over balanced to the Crown, we need equal Justice for all.
Well David I for one object quite strongly to paying defense Barristers to defend arsewipes that produce and trade in P. One of my locals, no make that 2 or 3 rake in a bloody fortune from this rort whilst maiking excuses for the lowest of the low and propping up people who quite purposely defy the law.
Is there any reason at all that you can use to justify me propping up these lawyers and their antisocial clients?
And that goes for a whole bunch of other criminals.
Especially when we are now embarking on another attack on young people. That money being lavished on crimnals would be better spent forging new business oppourtunities for this country.
Or perhaps you could consider getting legal aid to help my young female freind who has had her Fallopian tubes removed at age 19 by an incompetent system and people in the local DHB. 2 years and not a jot of assistance other than describing it as a minor incident in their report to the Minister last week..
Minor it is not but you can be sure they have done everything in their power to close it down and shovel the cost of to ACC.
Unfortunately my young freind just doesn’t have any money after not being able to work for 2 years till now.
Get me some good legal Aid for her and I will be a happy guy. Fuck the crims.
I think you will find that the defence bar accept that they will never be paid as much as the Crown are for the same case. Nor will there ever be a level playing field when it comes to forensics, that will always favour the Crown.
We just want it to be less tilted the Crown’s way than it is now.
Ignoring the silly attitude to criminal legal aid (because it is a necessity in any country where the State funds prosecutions with huge amounts of money), but has your friend actually applied for civil legal aid? Or approached an ACC advocate? ACC takes away so much that a regular personal injury system can take action on, and the protections of the medical profession within ACC rules are huge, but there are avenues to try.
But to equate it with criminal legal aid is just silly.
My point FES is that as per usual the arsewipes get all the cream and those that deserve good representation get zilch.
As for ACC. they will roll out a bunch of fucking lawyers etc to defend paying nothing.
This is a criminally negligent act by a surgeon and his DHB. Can you imagine what resources they have and they chose to use that resource to run cover ups, and even get to blatantly lie about it in their supposed report to the Minister about their “misadventures”.
No person to date has stood up like that engineer in CHCH today and owned up. The DHB didn’t say”you need a lawyer to help with this. We pay”, no they just told her to go home and not talk to the press.
This young lady is so distressed at being told basically to fuck off and get over it and that ACC may help with IVF. I’m looking for a letter from ACC that actually will say how much they will fund and how many IVF’s will they pay for.
There’s way more but it is scandalous.
The young Lady has been told by local Lawyers that she needs to talk to a lawyer in WGTN. But distance and no money have her over a barrel.
I have just googled the Civil Legal aid and will follow that up. Thankyou. Very much appreciated that. Any thing else you can tell me I would appreciate.
I think I know the lawyer in Wellington that you speak of. If I have the right person, then he is extremely good. Also, he does (from memory) civil legal aid. You need to speak to the lawyer before making an application, as he will help you with it, plus there is information that he needs to put in. It is actually just worth contacting him regardless, as he will give you an idea of what you might be able to do.
ACC took away our right to sue. I understand it removed a lot of our business almost overnight!
And don’t forget the arsewipes are only alleged arsewipes until they are found or plead guilty! That is the whole point- we are doing this not just to help the needy, but also (and possibly more importantly) as a check on the power of the state. Unfortunately, when the State does go power hungry, it is not you or I who suffer, but those who are at the bottom of society.
EDIT: If distance is a problem, then telephone him. Otherwise, try a local community law centre.
Almost no one does civil legal aid because the rates are so low. Good luck taking on a well resourced govt department on legal aid. Civil is probably even worse than criminal in terms of rates.
Who decides who the arsewipes that shouldn’t get legal aid are? The police? In a democracy the state’s coercive arms must be balanced by the right to a defence. Legal aid has been underfunded for over two decades and it undermines the rule of law and, quite frankly, why is a legal aid lawyer worth a third of a privately instructed lawyer?
Like any self employed you earn what you can. Its a socialist act to presume everyone should be paid the same.
Therefore as lawyers are for the most part self employed they earn at the level of their choice.
Dr’s are the same. Dentists on the other hand earn what they want without interference from the state.
Same should happen for Health and Legal. Just like the rest of us. eh.
and by the way, anyone peddling or making P is an arsewipe and does not deserve protection from the state.
Legal Aid may or may not be under funded but how much is ever recovered from those proven guilty and returned to the taxpayer?
How many that get legal aid beyond the first court appearance are ever found not guilty?
Lets have some research into the return on investment.
Well no you don’t earn what you choose because by law you must advise a client of the right to legal aid and you can not top up (unlike Doctors, physios etc). The other massive difference is that the state doesn’t make you sick. The state does arrest and detain its citizens. It’s called checks and balances.
And if flat fees are ok for lawyers why not Doctors? Work out what they are being paid now per patient, drop it by roughly 10% and say that’s it regardless of how difficult a patient’s diagnosis is. And to make the analogy stick make sure you drop it 10% from the 1998 rate.
90% of all charges end up in a guilty plea. Roughly a third of those defended are found not guilty.
So in your world an allegation of P peddling means no legal aid? Don’t get me wrong P is a horrific blight on society but are you really suggesting that the mere allegation means no representation?
LSA were notoriously bad at recovering debt even when it is assessed. Even if found not guilty you still have to pay it back if assessed on income/resources to pay for it.
V2 your sound bites are great and no doubt popular but I don’t want to live in a police state. Do you?
in addition, the skill of the lawyer isn’t really relevant as the lower grades of cases, which make up 90% of all cases, are on a rota basis, so no matter how good you are you will not get any more cases than the next man/woman.
And most lawyers are employed in firms, although you are correct if you say that most criminal defence lawyers are self employed. That is because most firms don’t want anything to do with legal aid. It doesn’t pay enough.
And how would you determine a return on investment? The restraint on potential police misconduct that having a defence lawyer involved in the case provides? Or are you really going to suggest that acquittals are in any way relevant to determining whether legal aid is a good ‘investment’.
In fact, legal aid is not an investment, it is a necessity. It is there because the State has overwhelming resources that cannot be matched by all but the richest defendant.
And the defendant accused of making/selling P is still presumed innocent, which is how the system works. That is why we do this.
By the way, legal aid is on a per case basis, not a per appearance basis.
FES: (and others) Notwithstanding the cases you cite in the UK, how are the Courts going to Judicially Review a policy decision by the government to reduce the amount it allocates to legal aid? (well, they will do it of course, but on what basis?) JR is not my field, but I seem to recall there is a big red line over which the courts are not supposed to cross – into the realm of policy, rather than the process of decision making. Or has that changed also in the brave new legal world in which we now live?
You don’t care whether or not our State has a robust process for deciding whether a free citizen is a criminal and deserves to be locked up. You are happy for New Zealand to lock up anyone Mr Plod decides he doesn’t like the look of, even though you would probably condemn Cuba or Iran (for example) if they did the same. We get that. It’s a strangely blinkered kind of lunacy but we can all hear what you are saying.
So when you’re in remand accused of raping and murdering your daughter’s 15yo friend (you didn’t do it BTW, but Mr Plod seems to think otherwise) who do you wanna get to represent you in court?
A real lawyer?
(Actually I’m not a lawyer at all, I’m a civil engineer by trade but I reckon I have a good basic grasp of right and wrong, and some oratory skills. I reckon I could get you off, and what’s more, I’d only charge one third of what some fancy schmantzy Legal Aid Lawyer would want.
‘Cause no-one should have to pay to defend “arsewipes” like YOU, eh? 😉
From my reading of the Statement of Claim, the CBA is claiming that the Minister has acted unlawfully, rather than merely made an incorrect policy decision.
Just on the fixed fees, however, I and my colleagues have always estimated that 30-50% of our criminal legal aid work is done on an unpaid basis. In other words, the MoJ is already getting an outstanding deal on the work that is done. They have taken the work that we actually do, pretended that it is all remunerated, and then taken that as the baseline in their ‘over and under’ assumption. They are very wrong- it is mostly under, and very little over.
And then they have reduced that by 10%.
But the claim isn’t about policy per se, so the CBA should be ok there.
I agree with your points, but just wonder whether you really would undertake a 3 day jury trial, plus 50-100 hours of preparation and do it for $40 per hour, including GST and before tax and business expenses?
EDIT: oh, and your business expenses are about $70 per hour, according to the NZ Law Society.
Rrm you are a civil engineer. I doubt you’d get out of bed for legal aid rates.
Peterwn certain irony in that statement in chch as you can only practice criminal law out of a car boot. More seriously there is an expectation from legal aid that you provide a service with all the trappings – pa, office etc but they don’t pay for it. Understandably support staff want a pay rise but how can I provide that when the rates are 1998 and are being cut by estimated 10% but almost certainly more? Applying CPI on a rough straight line estimate the rates are already 30-40% off the pace. And going down. Anyone care to guess the state of our police force if they were paid 1998 rates? Hell it takes a junior lawyer in a mid sized firm about three years to catch up to a starting constable wage and that’s if the firm doesn’t do legal aid.
David Garrett you are right, if the govt simple said we are reducing the rates by 10% under the current system I cannot see any immediate grounds for JR – that’s a policy decision. In this case the MOJ is implementing govt policy by a flat fee system of ‘unders and overs’ (all overs and no unders). The system runs contrary to statutory obligations of govt to provide legal advice and lawyers’ obligations and rights eg obligations to court and client and right to be paid.
Any of you who read my many posts would know that I rant constantly about the behavoir of the police and the police state. All the time in fact and you clearly don’t read bereals posts as he rants against me.
I have no real issue with legal aid apart from the fact that its is constantly abused and used by the worst of criminals. (oh and Barristers as well).(and The TOW litigants.) without recourse to the taxpayer.
Like any other litigation in the real world it should be paid for by the users. Now sometimes that’s not possible I know but if Kiwi’s were brought up with the real life situation of needing to save in case they need one of you rascals to take their money, just maybe there would be less crime around. Personal responsibility.
In the case that I have talked about this is a civil injury perpetrated upon a completely innocent party who then has to live with the results. Worse it has been done by a Govt. employee who along with his employer and their funder has the resources in collusion with another Govt. Dept. (ACC). to determine the outcome of that botchup. A botchup that will remain with this young lady for the rest of her life.
Civil Legal Aid may be an avenue of assistance. It has neither been suggested nor offered.
Indeed the total process needs to be defined and entrenched in Law or the right to sue reinstated,.
That’s a far different deal to dishing out legal aid as an entitlement to people who knowingly break the law and get caught.
Indeed the first thing offered is legal aid if you can’t pay.
It just ain’t the case here.
Which do you guys think should promoted? (Crinimals of course cause that’s where the money is. eh) Your self interest is evident but I would point out that many people pay good money to lawyers to defend their own actions and that’s how it should be. Remove the legal aid tit which you are apparently wedded to and cause people to pay for their own behavoir.
If you really feel ultruistic about criminals then set up your own business with bail bonds and whatever it takes without recourse to the ongoing tap called the taxpayer. One hearing from the state and then pay your own lawyer. Not only would law rates come down but so would crime.
‘The system runs contrary to statutory obligations of govt to provide legal advice and lawyers’ obligations and rights eg obligations to court and client and right to be paid.’
Very good. In the broader picture pleased also to see JR being utilised. For some reason it seems not to have been exercised as frequently as it should have. I think it is high time for Government departments to accept their decisions have to be lawful and consistent with Parliamentary Acts, it will provide for better Governance. Of particular interest to me is the extended period of time used for ‘reports’ into applications for review under the Royal Prerogative for Mercy. It seems to me that there is an acceptance that delays are inevitable wherein the Act there is no provision for delays and the general principle of Justice delayed is Justice denied is overlooked.
I’ve gone off track but it seems the CBA have a strong argument that justice is being denied, in this case, by financial hamstringing.
The public has deliberately been sold a picture of the apparent wealth that is available through legal aid, the reality is a lot of lawyers wont do legal aid work because they can’t make money. Don’t put your head in the sand when you have experience of a case where it becomes to hard for a plaintiff to proceed because they don’t have the money despite having a strong case. I also think that on the Criminal side because there is a statutory right for an accused to represented, for a long time (probably for ever in fact) that is often a piece meal defence against the financial power of the Crown, but right now it has become a crisis and lawyers are abandoning the work and we seem to be entering the world of ‘Public Defenders’ and the obvious problem of their exact independence from the Crown. In tough times we need strong legal advocates, that requires money well spent.
Apart from that, assuming that things can get so bad with the police as you so often say, then surely those people effected by that need good lawyers?
Anyone know of a lawyer whose business went bust, or they left the profession because they could not earn a living salary? Of course not.
This case is simply about lawyer greed and their wanting to maintain their high-earning lifestyle off the back of the taxpayer. Nothing wrong with that – the wharfies in Auckland are doing the same thing (though not at taxpayer expense), but the Lawyers are being disingenuous when they attempt to wrap the argument around their wanting to provide a wonderful service to the poor down-trodden.
Unlike Doctors, there is no shortage of lawyers in NZ, the principle of supply and demand dictates that lawyers as an occupational group should be paid far less than they earn now.
Those of us old enough will recall in the early 1980’s when Lawyers fought tooth and nail to stop the Government introducing competition by abolishing the fixed scale of fees that all lawyers charged, regardless of their experience or ability. It coincided with the purchase of my first home and my conveyancing bill, instead of being a fixed $1200 legal bill, dropped to $500.
It is a very unhealthy trend that more and more groups are turning to the Courts to overturn the legitimate role of an elected Government, whether it be lawyers opposed to legal aid reform, businessman opposed to the sale of the Crafer farms to the Chinese, or teachers refusing to implement Government policy. Governments have done many things I don’t agree with, but it is their right, and I don’t think it is the role of the judiciary to interfere with Government policy.
GPT1 – The Chch earthquake has been a good leveler. Seems the judges have also been reduced to car boot judges – holding court citing where they can – jails, maraes, law school moot room, etc. Especially as the only other nearby courthouse at Rangiora is also closed AFAIK.
Well if we did what we should do and remove the power of police to go to court and require them to advocate to a n Independent prosecutor then we remove their over riding ability to be all powerful and then all evidence should need to be presented. accepted or oppose by the defense. A prosecutor could then say yay or ney Not enough evidence go get more and stop being vexatious etc.
the system as it is has become belonging to the police who are there to supervise the law as it stands and apprehend those that break it. It actually should not be their decision to go to court but to collect the evidence of wrong doing and present it to a prosecutor independent of them, i.e. make them do their job properly.
‘I don’t think it is the role of the judiciary to interfere with Government policy.’
From what I can see that isn’t the case here and there is no attempt at that. The issue is whether Government policy, acts, or even omissions I assume, are aligned with the law. In this case the right of a defendant or respondent to be fairly represented. Costs increase, costs go up daily in fact in many respects, the Government have a bath many years old with taps that are deteriorated and poorly functioning – they now want to turn those taps almost virtually off. I’d rather see the ‘sacred cow’ disproportionately high prison musters – meaningfully reduced.
V2 – you are accused of a crime you did not do. You have no money. Do you really thin $450 is a fair amount to paid to the lawyer defending you for minimum three appearances including the hearing and preparation?
The point you keep missing is that the state is the only mechanism that can lawfully detain citizens and therefore the state has an obligation to ensure, as the American’s would say (but increasinly rarely do), due process.
That is not to say that civil legal aid is not grossly underfunded, it is. But the mere fact civil legal aid is also a disgrace does not remove the point. For that matter family legal aid is a mess as well.
Anyone know of a lawyer whose business went bust, or they left the profession because they could not earn a living salary? Of course not.
Yes to both. A colleague was bankrupted just last year because after signing a lease that couldn’t be serviced.
Although that is hardly the point.
If you pay legal aid lawyers a third of a commercial lawyer where are quality lawyers go?
In Chch there are only three or four (FES might think of more) criminal lawyers under 40 who would be good enough to do the murders etc as our older colleagues retire. You would definately find one more at the Crown and arguably a couple more. So six “young” lawyers who may or may not stick it out for long and stressful hours and crap remuneration. Good succession planning.
And although you are happy to perpetuate the myth of money why should legal aid lawyers have their income, that is at the same level as 1998, have their income cut? No higher salaries commission here, not even CPI.
Im sik of these fancie crim laywers in there fancie cars trying to get get all these crims off moanin there not paid enuf wen all there doin is puttin crims back on the street to rob hard working peeple like u an me an moanin there not paid enuf wen they make heeps and the govt just trying to get them back in line i rekon they know wat there doing those crim laywers r just blufing there case ll get throne out good job they get pade too much i rekon the govt shold be givng the procecutors and crown laywers another raise havin to deel with these scumy crim laywers
As I understand it legal aid lawyers get paid $130 to $150 per hour. A Pharmacist would have to dispense 25 to 30 prescriptions an hour to be reimbursed at this level for thier work. These numbers are something that can not be done accurately and safely. I wish I’d studied law.
your rite id haf 2 werk a hole day jus to make wat a crim laywer makes in an hour wat r they moanin abt cant wate 2 c there case get chucked out of cort farmassists do heapz more for socity 2 not jst puttin crims bak on the street 2 rob hard werking peeple lyke u an me
if your on site u must b doing something usefull:) not lyke a scumy crim layer they get 2 keep all there money livin in there fancie howses an drivin there fancie cars nt lyke hard werking cityzinz lyke u an me a
madbilly – adults talking. Perhaps just run along. And if you see a school on your way stop for a while. At least five years.
Muzza – closer to $100-120, I think the most senior might get up to $150. To put that in perspective that’s $120 legal aid or $275 private or at the senior rates $150 legal aid or $500-$1000 private. Surprisingly enough not many QCs do legal aid.
But $100 an hour sounds like quite a lot? But that’s it – it’s not a wage – that has to pay my rental, my office fit out, insurance, PA, receptionist, trust account clerk.
Legal aid is a bit like saying to a cop we’ll pay you $100 an hour but you have to provide you own uniform, baton, notebook, car etc, rent the police station and, oh by the way, we’ll only give you 20 hours to solve a burglary but if you can’t do it in that time you have to keep working on the case or we’ll sake you.
For the record I drive a 20 year old car that has done over 300,000 ks.
those rates GPT mentions also include GST and are before tax. As he points out, they do not represent the take home pay of the lawyer. The other thing is that Legal Aid is not paid on a limitless basis- we do not get paid for the work we do, but get assigned a small number of paid hours, and any work that has to be done beyond those paid hours (and we are legally obliged to do it) is done for free.
So you might do 10 hours work on a case but only get paid for 5 hours (which is pretty common), so the $110 incl GST per hour that you got paid for those 5 hours suddenly becomes $55 per hour, incl. GST, and before you pay your expenses and tax. Which means that you get very close to making, if not actually make, a loss for the case.
Sound good now?
The secret to making money as a defence lawyer is to a) have as many cases as you can on the go at once, b) do big cases as they get paid at a higher rate and c) don’t worry about how many hours you work. 7 day working weeks are common for defence lawyers.
And that is the norm for the defence lawyer who accepts legal aid assignments.
Actually GPT1…I was just having fun. Sadly, it would appear you were born without a sense of irony. I suppose I’ll just return to my volume of Proust (my favoured translation, incidentally, by Moncrieff & Kilmartin) having made my point (at least I thought I had) about the deeply red necked strain of “debate” regarding criminal legal aid lawyers that I was simultaneously appalled and delighted to discover in this blog:).
What staggers me is how little many commentators here know about the system but are experts .
V2 at 10.27- the police don’t find anyone guilty, most times juries do or don’t, and if comments on here are anything to go by you can see how the likes of Bain walk.
Legal aid is necesssary as it does mean that many are convicted of a lesser charge than what was laid and this is beneficial to them obviously people do need an advocate when in Court.
Personally I don’t know of anyone who has got super wealthy by legal aid alone, I know of one lawyer personally who has made a very good living by being a superb speaker in mitigation and has saved hundreds from prison after they ahve plead guilty.
The main thing is if you are poor and can’t afford a lawyer don’t break the law, but then again you can’t put brains in a statue.
Yes people, and pharmacy owners also have similair expenses and tax to pay out of the money they earn from dispensing fees. We also depend on volume, the more scripts we do the more money we get. There is however a point where you can not do more safely without taking on another staff member. We are also expected to be 100% accurate 100% of the time, its all black and white, no grey areas. Can you say the same for law?
so you would be happy for the government to say that you will get paid for, say, the first 5 prescriptions that you fill each day, but that thereafter you must continue to fill prescriptions to the same standard but do it for free? Or otherwise reduce your operating costs to where 5 prescriptions will meet your expenses?
Oh, and, being a specialist, you cannot do anything other than fill prescriptions. No sneaky perfume or cosmetic sales now…
GPT1 sorry for accusing you of not having any sense of irony – I’m sure you do. The joke is on me really in that I think that – incredibly sadly – what was intended as satire on my part, is actually pretty much impossible to distinguish from some of the genunine comments, as you yourself have noted. Terrifying isn’t it? I can practically hear the banjos duelling.