Kiwiblog

The Herald reports:

Destiny Church leader Brian Tamaki has admitted being part of a group that sought legal aid to oust his marae’s trustees.

Even if it was not Tamaki, I’m not keen on legal aid being used by plaintiffs in disputes like this.It encourages people to litigate, rather than settle.

Mr Tamaki, who said he has “a mortgage like everyone else” and is “not a multi-millionaire”, told the Herald he was representing a group of whanau members, who sought legal aid to depose his marae’s trustees at Te Kopua, near Te Awamutu. …

In October, a former financial administrator for Mr Tamaki and his wife revealed to the Weekend Herald that he received up to $500,000 a year from church donations on top of his six-figure salary.

It would be an outrage for them to get legal aid. Tamaki is one of the richest 0.1% of NZ. He should be ashmed at his attempt to bludge.

Three editorials today on the legal aid review. First the ODT:

Even by her own straight-shooting standards, Dame Margaret Bazley 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.

Yet to read the full report itself, but the Herald sums it up:

A damning review of legal aid says a sea change is needed to fix a system undermined by incompetent, unscrupulous and sometimes corrupt lawyers looking after their own interests.

The Legal Aid Review report released this morning recommended the Legal Services Agency, which administers the aid, lose its independent status and be folded into the Justice Ministry.

It said administrative costs were out of control and raised serious concerns about how the agency operated which had opened the system up to abuse by bad lawyers.

Wow that is much more damning and much more a radical solution than I expected. Some of the issues found:

* lawyers making sentencing submissions without having read the pre-sentence report;

* lawyers ignorant of legal principles and not realising their own ignorance;

* lawyers failing to turn up to court;

* “car boot lawyers” using a District Court law library phone as their office number and using interviewing rooms as their offices;

* lawyers gaming the system by delaying a plea or changing pleas part-way through the process to maximise payments – Dame Margaret said unverified sources believed up to 80 per cent of lawyers practising in Manukau District Court could be gaming the system;

* lawyers who demanded or accepted top up payments from clients who do not understand legal aid;

* widespread abuse of the preferred lawyer policy by duty solicitors, including taking backhanders for recommending particular lawyers to applicants.

I can’t imagine this report will just be filed somewhere to gather dust. Watch this space.

The discussion paper by Dame Margaret Bazley is here.

At this stage there are no firm recommendations, just issues for discussion.

• In last year grants increased from 73,905 to 85,158. Mostly criminal, followed by family.
• Cost of legal aid increased in last year from $108 million to $124 million. Of that $67 million is criminal. Family cases cost more on average per case.
• 45% of legal aid budget goes on 5% of cases
• The top 100 cases (0.17% of total) cost 17% ($18.3m) of total scheme
• Top ten cases cost 300 times the average
• There is a reluctance by LSA to apply the “prospects of success” test for legal aid applications, as they do not wish to usurp role of court.
• Legal aid for Treaty claims is available from three sources – LSA, OTS and CFRT, and double dipping may occur even though info is shared.
• A small but significant number of legal aid lawyers are of low quality, often unprepared, and over-committed
• Problems especially with sole barristers with no offices in Auckland – “car boot lawyers”
• The relatively low rate for legal aid work may be responsible for the quality issues identified.
• In UK they are looking at preferred legal aid suppliers which reduces compliance costs and providers greater certainty of income for those preferred suppliers
• Another option is a fixed fee for categories of cases
• Little performance monitoring of providers
• The focus on legal aid payments on court events ,may encourage lawyers to use only court events to move cases forward
• Pros and cons of capping certain categories of legal aid are discussed
• Bulk funding of some services to be considered
• Pilot of Public Defenders Service to be extended in Auckland. Review found savings in legal aid costs, savings in court time and costs, improved quality of services,better training of junior lawyers, and greater trust between prosecutors and defence.

I have blogged previously my support for the PDS concept, and it is good to see the trial seems to have been successful. I think expansion of this service will be part of the solution – but only part.

Do you get legal aid when you sue for legal aid?

Stuff reports:

A man convicted for his part in the abduction of his grandson wants legal aid to fund an appeal, despite having $1 million in assets held in a family trust.

The family fortunes of Dick Headley, 70, were revealed in the High Court in Hamilton this week. He was appealing a Legal Services Agency refusal to grant him legal aid.

In December Headley and his daughter, Kay Skelton, 38, were sentenced in the same court.

Skelton was ordered to complete nine months’ home detention and 300 hours’ community work, while Headley was ordered to serve 12 months’ home detention.

The nasty little kidnappers got off lightly.

Headley claims the Legal Services Agency treated him unfairly when it refused to grant him legal aid during those legal proceedings. A legal review panel later found in favour of the agency, a decision Headley’s lawyer claims was an “error of law”.

Headley was appealing that decision in an effort to get legal aid to appeal his sentence.

So do you get legal aid when suing for legal aid?

Simon Power is reviewing legal aid:

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

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

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

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

I’m all in favour.

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

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

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

Great. Make it happen!

Both National and Labour MPs are concerned that some lawyers are milking the legal aid system:

National MP Simon Bridges, until recently a Crown prosecutor, said there was a growing perception that some of the $54 million the Legal Services Agency spent in the past financial year on criminal legal aid was funding cases where there was no prospect of success.

Mr Bridges said he had received reports of milking the system, such as “a fourth bail application when it is clear that he or she failed the first three times and the fourth one is simply unnecessary”.

Mr Bridges said another example could be the funding of cases to a preparation time of 50 hours, when that amount of time was not needed. Legal aid rates range from $105 to $182 an hour.

Mr Bridges also had reports of “rather too cosy relationships between [agency] staff and particular counsel”.

The cost of criminal legal aid alone is now over $50 million and has blown out by 42% over the last five years.

Labour MP David Parker, also a lawyer, said senior criminal lawyers, particularly in Auckland, had told him there were “considerable numbers of counsel milking the system, particularly inferior counsel”.

Mr Parker cited trials with many accused where six or seven defendants had individual lawyers, “because someone else [legal aid] was paying”, rather than the compromise of having fewer lawyers to represent them as would be likely if they were paying themselves.

Good to see David Parker also raising concerns.  Maybe Nats and Labour can do an inquiry?

But some good news from the agency chair, Carole Durbin:

She said its in-house public defence service, a pilot scheme made permanent last year, was one of its “bright lights”.

I think there is considerable merit in having a public defenders office.