What a surprise

April 19th, 2012 at 10:00 am by David Farrar

Andrea Vance at Stuff reports:

The public wants reform, but lawyers are not in favour, a new survey shows.

What a surprise. Lawyers are not in favour of getting less money.

A survey, commissioned by the Justice Ministry, shows almost half of the public (47 per cent) believe the current regime does not offer value for money. …

However, a parallel poll surveying legal aid practitioners, showed ”high levels of disagreement with the reforms and dissatisfaction with the way changes have been implemented”.

Respondents disagreed most with the introduction of fixed fees – 72 per cent were against the move. Lawyers will be paid a set rate based on the seriousness of their client’s charges. Previously they were paid an hourly rate and earlier this year the Criminal Bar Association filed papers in the High Court seeking a judicial review.

Which failed if I recall.

There are arguments for and against the reforms. The fact legal aid recipients are not in favour, is hardly novel.

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50 Responses to “What a surprise”

  1. Nookin (3,341 comments) says:

    “The fact legal aid recipients are not in favour, is hardly novel.”

    The clients are the legal aid recipients, not the lawyers.

    [DPF: Beneficiaries possibly but not recipients]

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  2. Pete George (23,559 comments) says:

    But I’d expect lawyers to have a much better knowledge of how legal aid works and it’s strengths and weaknesses than most of the public.

    Rates based on seriousness of charges sounds odd. I don’t expect it’s uncommon for less serious cases to be more difficult and time consuming to defend.

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  3. Skttrbrain (26 comments) says:

    It is very easy for a blogger to sneer at lawyers as being only self interested. I’ve known a few lawyers (and dated one), and that has not been my experience.

    [DPF: I don't think there is anything wrong with being self interested. I just don't think it is a surprise.

    It is like being surprised that most students would like to pay lower tertiary fees]

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  4. GPT1 (2,121 comments) says:

    No one is in favour of less money. Even less so when the cuts are being made from 1998 levels.

    David the only argument in favour of cutting legal aid is that the government does not want to spend money on access to justice and doesn’t really give a shit about lawyers as it’s not a vote winner. As the survey shows. And why is legal aid, pleading poverty as it does, doing a popularity survey? And what controls are their in place as to knowledge and bias? As you often state the questions are everything. How about a question of “if you were charged with an offence for the first time and were not guilty do you think you would get appropriate representation from a lawyer paid $550 who has to go to court at least 4 times to defend you case?”

    The interim relief application was turned down. The Judicial Review is being heard early next month.

    I have a legal aid flat fee schedule here. You know doubt use lawyers and tell me how much work you would get out of them for this:

    Guilty plea – $350 – (however many appearances including a late plea from defendant prior to fixture when you have had to prepare). That’s about one hour of a partner’s time in any medium law firm and half an hour or so in a big firm.

    Defended Fixture – $550 – first appearance NG, registrar’s call over, Pre Trial in front of a Judge, hearing (oh you do get $50 per half hour after 1.5 hours of hearing time) and there is no extra time if the case is not able to be reached and is set down for weeks in the future.

    s38 Criminal Procedure (Mentally Impaird Persons) Act – (ie is your client able to plead/able to comprehend right from wrong) $150

    Opposed bail applications (yes plural) $225

    Your choice. Do you want a police state or do you think, just maybe, that the power of the state should be balanced with an adequately funded defence?

    This is no longer even about equality of arms – that pipe dream is long dead. This is about whether defendants are even allowed a pop gun to go up against the state.

    And from my point of view it’s about how I can maintain my office, pay my staff a fair rate and maybe, just maybe, earn a few bob for myself and my partners.

    It undermines the rule of law and rips out the backpocket – little wonder lawyers are getting pissed.

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  5. GPT1 (2,121 comments) says:

    You sneer “what a surprise” – perhaps tell us how low you think you can go with legal aid rates? Perhaps explain why a service that has been operated on 1998 remuneration should be cut further (and then put together a diet plan for Ethiopians) and a bonus point if you can point to other government department contracts that are cutting from 1998 level

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  6. Grendel (1,002 comments) says:

    of the 47 percent who did not like the current regime, how many had practical experience of it and could offer an opinion based on their intricate knowledge of how the legal aid system works, the cost for lawyers, and where it actually adds value.

    and how many said it was too much becuase they know of a lawyer or heard of a lawyer who makes a lot of money doing legal aid work and are envious?

    i have no idea how the legal aid system works, so cannot and will not comment as to whether it needs an overhaul.

    i would not be happy if a lawyer was rorting it by slow charging etc, but then i cannot think you would find someone who was in favour or rorting the system (other than the rorter).

    so essentially its a nothing article. go the news media…

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  7. Mark Thomson (81 comments) says:

    “A survey, commissioned by the Justice Ministry, shows almost half of the public (47 per cent) believe the current regime does not offer value for money. …”

    I wonder how much the Justice Ministry paid for that survey. As someone who generally tries to stay somewhat well-informed about public issues, I have to say I have absolutely no idea whether the current regime offers value for money or not – the facts of that particular issue are simply not something I’ve ever looked at or spent any time reflecting on. And I would venture to say that 99% of the public are in a similar position.

    So when the Justice Ministry claims that 47% of the public actually have an opinion about this, I have to wonder whether their *survey* offers value for money.

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  8. backster (2,171 comments) says:

    Pete G…”But I’d expect lawyers to have a much better knowledge of how legal aid works and it’s strengths and weaknesses than most of the public.”……..and Wharfies know best how to run the wharfs, and Boners know best how to run the freezing works.

    Skttrbrain……Appropriate nom de plume, Good for you for sticking up for the girlfriend, but wait till you employ her and get her bill.

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  9. Nick R (507 comments) says:

    The part I find surprising about the reforms is that a National government has effectively nationalised a substantial part of the legal profession by setting up public defenders offices, and requiring people who are accused of criminal offences and who cannot pay for their own lawyer to use them. So a lot of work that was previously done by private contractors (barristers) is now being one by lawyers who are effectively public servants.

    I have concerns about that. Not least being how someone can rely on a lawyer who is paid a salary by the State to defend against charges laid by the State. Exactly how far out on a limb will that lawyer go for his or her client?

    I have no evidence that this is a problem in practice and I’m sure the lawyers working in public defenders offices are all good lawyers doing their best. But I don’t like the principle much. Cutting corners on justice can result in some ugly outcomes. We saw that a few years ago when the Privy Council decided that the Court of Appeal had been acting illegally by not giving proper consideration to appeals involving legal aid applications, with the result that a lot of appeals had to be reheard.

    I also wonder how many people here would be keen on the reforms if the Government were to nationalise other work currently done by the private sector in the same way.

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  10. GPT1 (2,121 comments) says:

    The irony is that the state uses private contractors to prosecute and nationalises defence. The major issue with PDS is they simply do not have enough staff for the work they take.

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  11. Sadu (129 comments) says:

    Weren’t there reports of freelance one-man-band lawyers making several million per year out of legal aid?

    I don’t know what a basic-level salaried lawyer earns, but let’s say for arguments sake it’s $100k and if not just adjust the figures accordingly. A reasonable chargeout rate for most businesses would be 3x the salary cost – to cover expenses and profit. So charging this lawyer out at $300k for a year’s worth of jobs would seem about right.

    So in my view (as a taxpayer) – if law firms are earning much more than this amount per fulltime legal-aid lawyer per year, then the system is broken and needs to be fixed. If an individual lawyer is able to earn several million per year from just legal aid, then the system is completely fucked.

    I don’t know if the above is the case or not, but cearly the people paying for all this legal aid think it’s a bit expensive and some lawyers are taking the piss.
    DPF is absolutely correct in that the lawyers have a clear conflict of interest, and their opinion should be weighted accordingly. Asking a lawyers opinion on this matter is like asking a fox’s opinion on henhouse design.

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  12. alex Masterley (1,517 comments) says:

    GPT1
    The net result of the legal aid changes will be more car-boot lawyers mocked in the Bazely report rather than less. They will be the only ones who will be able to make any money from legal aid work.
    Sadu’s comments at 11:33 demonstrate the truth of the aphorism that assumptions are the mother of all cock ups.

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  13. Pete George (23,559 comments) says:

    Asking a lawyers opinion on this matter is like asking a fox’s opinion on henhouse design.

    I don’t agree, lawyers should be one of the first groups to ask about this. It doesn’t mean they should be given exactly what they want, but they should be consulted and their opinion should be taken into account – more so than “the public”, many of who may have been nowhere near a courtroom..

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  14. lastmanstanding (1,297 comments) says:

    Sadu Using your $100k salary as a base equals a pay rate of $48 ph for a 40 hr week. So 3X is around $150ph. Lets be a bit more generous and allow for a 3.5X to cover overheads profit.

    Thats $170ph. It should be possible to strike an average time per job. I would think many cases fall within certain parameters where you can calculate a fair and reasonable number of hours to do the job.

    As a taxpayer I would be happy paying these rates on a swings and roundabouts basis.

    However I would caution DPF and all others who seek to reduce the fee scale to the old saying.

    There by the grace of God go I

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  15. GPT1 (2,121 comments) says:

    Good point Alex. The bit of the Bazley report conveniently overlooked is the reference to the importance of competent well funded defence and that the vast majority of lawyers were doing a good job.

    Sadu. I wish. If only that were the case.

    The Bazley report identified, mainly through anecdote, that there were some “car boot” lawyers who were taking the piss. These were the minority and she smacked Legal Services Agency around for sitting on its hands over it. And rightly so. Power decided that it was the law society’s problem and grandstanded.

    What it did not do is identify legal aid lawyers earning several million a year. The only lawyers earning that are large firms doing Treaty work – one wonders why Kensington Swan does Treaty legal aid but not criminal legal aid but that is a matter for another forum.

    An employed grad lawyer will be paid around $32-35k in a firm that does legal aid. Outside of large firms $100k as an employed solicitor is virtually unheard of. Hell most partners of most law firms are lucky to make that.

    But to use your formula, which is probably not entirely unfair given that it is the taxpayer fitting the bill, in order to earn $300k legal aid at (an average) $120 an hour (remembering this is reduced even further now) that is 2,500 chargeable units a year or (using 200 working days) around 12.5 chargeable hours a day. 5.5 hours chargeable is generally regarded as a fair output (although a lot of firms try to push that up).

    Although I would be more than happy to take a 10% plus cut, given the economy, from a million dollars a year.

    Your final comment rather loses its edge when your assumptions are met with facts and that’s the point really – how relevant is a survey asking people what their opinion is if they know nothing about it or, worse, have mistaken views as to the facts?

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  16. GPT1 (2,121 comments) says:

    Alex – the great irony is in Christchurch you HAVE to be a car boot lawyer.

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  17. GPT1 (2,121 comments) says:

    Sorry 220 working days is probably better – that’s just over 11 hours chargeable a day. Of course you have to run your practice as well. Remind me again how many hours POA wharfies work for around $90k?

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  18. krazykiwi (9,186 comments) says:

    The whole self-interest meme is quite well captured by this cartoon: Presenter to scientsts: ‘Hands up who thinks Greenhouse Gasses have no effect, and therefore we all need new jobs? Anyone?’.

    The conference depicted could equally have been lawyers discussing legal aid.

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  19. Sadu (129 comments) says:

    @GPT1
    The 3x rule of thumb is a rough measure that applies to a lot of businesses – maybe this includes lawyers, maybe not. If someone’s chargeout rate for a service-based business works out to be much higher than 3x the staff cost, then that’s cause for concern. I would be concerned if a builder was charging out a minimum wage hammerhand at $100ph.

    If you are saying that a $35k lawyer charges out at $120ph and can do 5.5 hours per day (which is better than I can manage), then by my formula that is within the boundaries of reasonableness. Providing of course that law firms are taking a reasonable amount of time to do the standard non-complex cases.

    I still think the comment about foxes and henhouses still applies. Of course there should be discussion with the lawyers and anyone involved in the system, but as DPF says one should not be surprised if someone is not in favour of a change that results in less money in the pocket.
    The opinion of the public should also be weighted accordingly. Personally I wouldn’t give much weight to a survey conducted of people who know nothing about a particular subject, aside from the fact that these people can vote.

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  20. Nostalgia-NZ (5,202 comments) says:

    What a pointless poll, after Legal Aid payments have been attacked in every way for years, including the head-line grabbing Bazely report I’m surprised the 47% was not higher. The fact it wasn’t is probably a general belief by the public that not only is important to have access to legal aid but also that legal aid shouldn’t be the ‘poor neighbour’ v the might of the State. I say look for savings else where and don’t disadvantage the reducing number of lawyers prepared to take on legal aid work. Sink the lid on prison numbers instead.

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  21. GPT1 (2,121 comments) says:

    Sadu – Yeah but a $35k lawyer can’t do that because they don’t know anything so it takes them twice as long to do anything. And an 8 year plus lawyer who should really be being paid $100k ish can’t earn enough from legal aid to justify their salary.

    I actually think your x3 is about right. I don’t have a particular issue with legal aid being a bit lower than a private rate – there is public good, reduced risk of not being paid (although months can pass before they reject accounts for random reasons) and some of us still think being a lawyer has an element of obligation to the rule of law but when the rates are being reduced from a third of your hourly rate to even less that’s taking the piss.

    Your point about voting rather sums it up. After all who really gives a shit about lawyers and criminals? The police wouldn’t charge someone if they weren’t guilty after all…

    Perhaps when politicians set their wages by public surveys they can do the same to legal aid but in the meantime can we have the Higher Salaries Commission work out our market value and pay us accordingly

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  22. F E Smith (3,305 comments) says:

    Oooh, only just noticed this was up…

    Of course the public don’t think that legal aid is good value for money. They a) know very little about how it works, and b) have had Simon Power telling them how expenseive it is and how it is continunally being ripped off by the lawyers who accept asssignments. So what do you expect them to think after all that?

    It was a stupid survey to do and has no real value in the debate.

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  23. alex Masterley (1,517 comments) says:

    FES,

    There is that too.

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  24. Andrew Easterbrook (5 comments) says:

    Am I getting this right – $35k salary for roughly 5.5 chargeable hours per day on legal aid (at a salary = 1/3 amount billed)?

    And are people actually saying that $35k is a salary that appropriately compensates a lawyer for the skill and expertise required to undertake a jury trial with any degree of competence? Or, for that matter, anything other than basic secretarial work?

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  25. F E Smith (3,305 comments) says:

    sadu,

     Weren’t there reports of freelance one-man-band lawyers making several million per year out of legal aid?

    Nope.  The high earners on legal aid are Treaty of Waitangi lawyers and Civil legal aid lawyers doing class action style lawsuits.  The criminal lawyers don’t earn nearly as much.  And don’t make the mistake that many do and think that the published earning figures are salary- they are not, they are revenue.  Expenses, including experts, experts reports, juniors and office expenses have to come out of that..

     Cactus Kate did a great blog post on legal income late last year.  It is here. When reading the rates, you must remember that common lawyers (that is, litigation lawyers) often earn less than commercial lawyers, and criminal lawyers often less still.  That is, as GPT points out, because it is really difficult to meet targets doing criminal legal aid.  In fact, I would say it is nearly impossible, which is why so few firms are allowing their solicitors to do legal aid these days, and why so many lawyers have gone off the legal aid roster in the last 12 months.

    The Bazely report actually said that most legal aid lawyers were doing a very good job, with only ‘some’ gaming the system.  She blamed the Legal Services Agency and the Courts for most of the problem, although the Police and Crown got a bit of a serve as well.  That didn’t suit Simon Power, so he (and the media) latched on to a guess by Bazeley at the press conference when the report was released (her report does not mention numbers of lawyers ‘gaming’ the system) and made that the entire focus of the media coverage.  It was very flawed, and gave the NZ public something to hate.

    The fact is that the rates are basically lower than 1990 levels now, and that lawyers are voting with their feet, with far fewer choosing not to do legal aid, a trend that will continue until almost all criminal defence lawyers are employed by the State.

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  26. F E Smith (3,305 comments) says:

    Andrew Easterbrook,

    no, you are not correct. That is because it is virtually impossible to bill 5.5 hours per day on legal aid, you just don’t get that much billable work unless you are doing big trials on a regular basis. That is where Greg King makes his money, but having regular jury trial work of a complex and serious nature.

    So GPTs example is purely hypothetical. The $35K salary, sadly, isn’t. Nor is the fact that you will probably spend 5.5 hours per day on legal aid work but bill only about half of that.

    And I think you will find that most people think $35k salary is too high for a defence lawyer.

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  27. tvb (4,421 comments) says:

    Yes over the next 5 years I predict a very considerable reduction in criminal lawyers with almost no junior lawyers entering the system. The same will also happen with family legal aid as well. The public defenders office will have to fill the gaps with grossly over-worked junior lawyers doing the work as the private bar shrinks. You will get lawyers with 3-4 years experience dealing with rape cases, major drug cases serious assault cases. I assume murder will be handled by the few experienced lawyers around but they will be overworked as well. This is against a background of increasing complexity in the law and greater professional responsibilities being required of lawyers including being sued for conduct in Court. The PDS lawyers are especially vulnerable as the Justice Department will have to pay for negligence settlements and will make them a big target due to the State’s deep pockets.

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  28. F E Smith (3,305 comments) says:

    tvb,

    you make a very good point re the family lawyers. They are next in line for the fixed fee regime, and, if anything, NZ is actually in far worse shape with regard the supply of family lawyers willing to do legal aid than it is criminal lawyers, and that is saying something.

    The other point is that, despite the very high fees paid to Crown prosecuting firms for the provision of services, the pay for Crown prosecutors is known to be relatively low and the hours long. The partners in those firms, however, tend to make a fortune. I would expect that the PDS will go the same way (after their initial bout of hiring people on good salaries, with good perks and low expectations) and from what I hear, they already have their staff under pressure with regards work.

    Not sure that I agree re the negligence suits, as we just don’t see them a great deal in NZ, especially in criminal matters. And who thinks that the Courts will countenance suing the PDS much? I would expect a great deal of pressure from the Court not to proceed with such a suit.

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  29. alex Masterley (1,517 comments) says:

    TVB,

    You are right.

    Numbers of senior lawyers doing criminal legal aid are already diminshing.

    One senior counsel I spoke to recently has 2 or 3 legal aid cases. When they are complete he will not be renewing his provider contract.

    Others simply did not apply including Jonathon Temm who, as well as being the President of the NZLS is a Barrister practicing in the Bay of Plenty.

    The same is happening in Family and Civil litigation as well. I used to have a provider contract but not any more. Simply because of the hoops you need to jump through to get a contract then the hassles of dealing with the LSA who seem to think they are a law unto themselves. For example I heard a rumour of one LSA staff member being served a trespass notice after visiting a lawyers office and making a nuisance of himself.

    PDS are already under pressure. It will increase.

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  30. F E Smith (3,305 comments) says:

    Further to the comments on a reduction in numbers, can I just point out that we are already 460 criminal legal aid lawyers down on 2009 numbers (1400 to 940), a reduction of over 30% already. And that was before fixed fees came in.

    We are also 395 duty solicitors (generally also criminal legal aid lawyers as well) down on 2009 numbers (1070 down to 675), leaving also a severe reduction.

    Just so everybody knows, those numbers are of registered criminal legal aid providers. It does not show the numbers who work full time on criminal legal aid, but includes anyone registered and who does at least 1 case a year. The number of people who do criminal legal aid work full time is much lower.

    Interestingly, the biggest reduction, it seems, has been in civil legal aid work, which has gone from 2272 registered in 2009 to just 675 in 2011.

    For comparison, there are 11,000 lawyers in NZ.

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  31. GPT1 (2,121 comments) says:

    Alex the number of seniors is diminishing but the number of juniors has diminished. Seniors are often stuck – that is what they know – but junior lawyers are being actively steered away from legal aid or seeing the writing on the wall and pulling the pin.

    An example of dealing with legal aid and why it’s simply not worth the trouble. I billed a complicated sentencing matter involving psychiatric reports and IDCCC reports. I sent a bill in just prior to sentencing to met the three month billing requirements and noticed I had used up almost all of the allowed prep. I did not notice I had claimed .3 of an hour that was outside of three months. I then duly billed the sentencing a couple of weeks later having expended far more time than was available. I then get a letter rejecting all the first bill preparation as out of time. I point out that it is .3 of an hour and maybe they would like to pay that under the next account and am told that the invoice has been rejected so they won’t pay anything. So you do the work, fail to notice some stupid piece of bureacratic nonsense and they don’t pay you at all.

    It’s bad enough being paid like shit but the bureacratic bullshit is insane. And we wonder why compliance (ie: paying staff to implement policies) is around 20% of the overall bill.

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  32. GPT1 (2,121 comments) says:

    FES – fixed family court fees are out for consultation. With legal aid consultation means do you want lube with this rogering.

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  33. F E Smith (3,305 comments) says:

    GPT,

    are you saying that MoJ won’t pay that invoice at all? That you essentially did the work at the firm’s expense?

    EDIT:

    Ha, there is a reason that I don’t do Family legal aid work. I have appeared in the Family Court on 3 occasions, all on other people’s files and all simply to get a remand date (or whatever they are called int the family court). That is way too much for me…

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  34. Rex Widerstrom (5,354 comments) says:

    almost half of the public (47 per cent) believe the current regime does not offer value for money.

    Which tells us nothing. I don’t think it offers value for money because the fees are now so low, only the most incompetent on inexperienced lawyers (with a handful of noble and notable exceptions) are taking it on. That means poor quality representation, unnecessary delays, and unjust outcomes.

    If I were asked “do you think first year medical students operating on patients while unsupervised offers good value for money” my answer would likewise be “no”.

    Typically the MoJ has asked questions in such a way that the answers can mean anything they want them to mean. I’d suggest it was purely Orwellian, but they’ve long ago transcended Orwell and are now somewhere the other side of Zaphod Beeblebrox*.

    * Whose Wikipedia entry reads: “Zaphod is busy carrying out some grand scheme, has no clue as to what it is and is unable to do anything but follow the path that he laid out for himself”.

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  35. GPT1 (2,121 comments) says:

    Yes. That seems to be the approach, apparently my client has to apply for a reconsideration.

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  36. Nick R (507 comments) says:

    This is why so many of us won’t touch legal aid work at all.

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  37. GPT1 (2,121 comments) says:

    It’s an adjournment in the FCT FES although I did slip and ask for a remand the other day to the amusement of the Judge and to a lesser extent myself. I think it passed the other counsel by.

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  38. F E Smith (3,305 comments) says:

    Rex,

    fees are now so low, only the most incompetent on inexperienced lawyers (with a handful of noble and notable exceptions)

    I am going to disagree with you on this point, and quite strongly.  It is very wrong.  A large number of those who have remained on legal aid registers are very competent, and many are of intermediate or senior status. 

    They have remained on the register because of principle, rather than any other reason.   For the most part, legal aid lawyers in NZ are of a very high standard (something that the Bazely Report confirmed) and it is very wrong, in my view, to ascribe incompetence or inexperience to them.  Indeed, it is becoming very difficult for junior lawyers to become providers at all because their employers simply don’t want them to do so.

    Your view, although I suspect iut is the prevailing one among NZers, is in fact quite wrong.

     

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  39. F E Smith (3,305 comments) says:

    Right, gotcha GPT. For some reason they also looked at me funny when I stood up to address the Court!

    Why can’t they just call it a Tribunal and be done with it, if they aren’t going to follow real procedure…

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  40. RRM (9,919 comments) says:

    I’m going to choose to believe that DPF is attempting to mock the Herald for presenting the bleeding obvious as if it were a scoop.

    I choose this, only because I prefer NOT to believe that DPF is someone who would think defence lawyers are greedy by baulking at the prospect of remuneration previously frozen at 1998 (apparently?)levels being reduced still further…

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  41. GPT1 (2,121 comments) says:

    FES I suspect it may be true in certain Auckland jurisdictions and in terms of new barristers it is more notable – there are a few out there who are clearly to stupid to get a job in a law firm and inflict themselves on legal aid. Just goes to show what a great idea getting rid of preferred provider was.

    That said your point is valid, the majority are still doing a top level job.

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  42. GPT1 (2,121 comments) says:

    To be fair FES Bouchier has reinforced the fact it is a court. Civil is adjourned as well – a remand (I think) reflects bail. Judges are gowned, counsel expected to stand and follow procedure and the Evidence Act gets mentioned from time to time. I do enjoy getting that Act out in the Family Court.

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  43. Rex Widerstrom (5,354 comments) says:

    @FES

    Okay, I accept my view is coloured by the Australian courts, and particularly those of WA. Perhaps all the good lawyers in NZ haven’t shrugged their shoulders and walked away from legal aid – yet. Over here they have, in the main. In fact if someone is in real trouble and can’t afford their own representation I now have but one legal aid-accepting lawyer I can refer them to with any confidence

    But if there’s good people being paid awful money, then either they’re not going to be doing enough legal aid work per lawyer because they understandably need to earn a reasonable living, and thus some client must end up with the numptys; or they’re forced to push through a high enough volume of legal aid cases in order to derive a decent income, in which case their work must surely suffer?

    Don’t get me wrong, I have immense respect for the majority of lawyers in NZ (to coin a phrase, some of my best friends were lawyers…) and they leave what I’ve seen of Australian lawyers in the shade. I just can’t see how the system GPT1 and others are describing will not lead, inevitably and eventually, to the scenario I described, even if it’s not there yet.

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  44. F E Smith (3,305 comments) says:

    Rex,

    Perhaps all the good lawyers in NZ haven’t shrugged their shoulders and walked away from legal aid – yet.

    I think that is a better way to put it.  I have seen lawyers appear in Courtrooms in four jurisdictions around the world (including a marvellously entertaining afternoon in one just outside San Francisco) and I can tell you that NZ defence lawyers generally have a very high standard, far higher than they are given credit for.  I think that English Judges are the best that I have seen, but the NZ Bar easily matches the English one with its standard, notwithstanding the superior numbers of the English Bar.

    But if there’s good people being paid awful money, then either they’re not going to be doing enough legal aid work per lawyer because they understandably need to earn a reasonable living, and thus some client must end up with the numptys; or they’re forced to push through a high enough volume of legal aid cases in order to derive a decent income, in which case their work must surely suffer?

    Before they brought in a strict rotation for PC 1 & 2 cases (PC 1 being summary only, and comprising the vast majority of legal aid cases), then a lawyer’s reputation for competence was extremely important.  If you were good then you generally had sufficient work from which you could make a good living.  With the advent of rotation, reputation is irrelevant if most of your work is summary.  You will get the cases that you get, just like everybody else.  Hence the introduction of rotation to PCs 1 & 2 should actually mitigate against an improvement in quality, as there is no longer any competition among counsel. 

    With regards the higher categories (3 & 4), there is still counsel of choice.  Only now there is such a reduced number of truly senior lawyers doing this that they are often the only choice.  Some larger towns and smaller cities actually have no senior criminal legal aid lawyers, which requires out of town counsel from a larger city to come in to take the work.  Still, in the larger cities, a reputation for competence among the senior criminal legal aid practitioners is still important.

    Hence my disagreement with you.

    The responsibility that the MoJ/NZLS have for now monitoring and ensuring the quality of lawyers on the legal aid reigster should mean that we don’t have poor or barely competent lawyers on the register.  It simply means that we will have a steadily reducing number as the competent ones take themself off it.

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  45. GPT1 (2,121 comments) says:

    The responsibility that the MoJ/NZLS have for now monitoring and ensuring the quality of lawyers on the legal aid reigster should mean that we don’t have poor or barely competent lawyers on the register. It simply means that we will have a steadily reducing number as the competent ones take themself off it.

    Problem here is that the NZLS is generally only able to react to complaints (most of which are spurious as an aside) and the MOJ quality assurance at goodness knows how much has just made the application longer and with more paper. I think mine took my long suffering but outstanding PA around 30 hours to do plus I spent another 5.

    What they simply do not get is that ultimately whether someone is a good advocate is subjective. Even the bad ones have managed to get a law degree so they can obviously write. You and I could both name lawyers who are academic but tits in Court. To date I have not seen any evidence of wheat and chaff being separated – just more costs for MOJ and lawyers.

    One thing that should happen is the CLE courses should become pass/fail rather than just completion. That would not be a particularly onerous test but, for eg, the person who forgot to ask the murder accused if they had, you know, killed someone would be a clear no pass.

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  46. Rex Widerstrom (5,354 comments) says:

    GPT1:

    the person who forgot to ask the murder accused if they had, you know, killed someone would be a clear no pass

    Are they not, having received an answer in the affirmative, then prevented by ethics from entering a not guilty plea if that is the accused’s instructions? Yet the accused has every right to enter whatever plea s/he wishes (and cop an additional spell inside during sentencing if they’ve clearly wasted the court’s time, I find).

    I find “don’t ask, don’t tell” applies to guilt when instructing lawyers, assuming a plea of not guilty of course.

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  47. F E Smith (3,305 comments) says:

    Yeah, I am going to side with Rex on this one, but it is a practice that some do and others don’t. I never ask whether they are guilty. If they want to tell me then that is fine, but I don’t need to know. What is important to me is what the evidence says.

    I may form an opinion based on the evidence or what my client says/does, but that isn’t always accurate.

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  48. GPT1 (2,121 comments) says:

    Given they were cross examining the murder accused in a mock trial as prosecutor it was a pretty big balls up.

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  49. GPT1 (2,121 comments) says:

    But in the context of a defence lawyer you are both right

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  50. CYS (3 comments) says:

    Alex B heard a rumour about a trespass notice being served on a LSA person? Yes. I served a trespass notice on the LSA’s regional manager in July 2009 after he insisted on visiting my office while I was physically absent (tho’ present in spirit). The LSA had an anonymous tipoff that I was overseas and that my staff were unsupervised. They phoned my office to arrange a visit. My office phoned me. I emailed the manager and said essentially ‘yes I’m in the US but I’m supervising, what’s the problem? – give me a ring?’. Got no reply. Instead the manager still insisted on visiting my office (and my staff told me they felt intimidated into agreeing). I learnt later (from LSA internal emails) that the manager and two Head Office personnel had agreed between them that they didn’t need to wait for my consent before visiting my office, and if my staff did not consent they were going to bully them on the basis of their own provider contracts with the LSA. No one in the LSA/MOJ at any time between then and now has acknowledged that a government agency cannot demand entry to private premises without statutory authority. No one in the LSA/MOJ has acknowledged that they may visit only by consent. It was that simple. After I issued the trespass notice everything escalated further and they said I had breached even more of my obligations. Eventually they cancelled my listing approvals and destroyed my practice, albeit on other grounds. But that’s another story, for another post.

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