Public Defence Service lawyers have been hissed at and abused by members of the criminal bar, it has emerged.

PDS head Sir John Hansen has hit out at criminal lawyers over “appalling behaviour” towards its members after the Government-funded legal agency was launched.

The defence service is now being expanded by the Government – but continues to face vehement public attacks from within the legal fraternity.

In a strongly worded speech this week, Sir John, a retired high court judge, said the behaviour was seen in Auckland courts, particularly Manukau.

“It was this kind of unprofessionalism from a small proportion of the defence bar that featured so strongly in Dame Margaret Bazley’s review of legal aid,” he said at the opening of the Hamilton PDS. “It is something that I would have thought following that review would have ceased. Sadly it has not.”

 I think it is fair to point out that this is a very small, albeit vocal, minority who behavve so unprofessionally. It is a pity that perhaps NZLS has not been able to take any action at an earlier stage.

Sir John pointed out that “lawyer of choice” was not an option for any charges other than murder before 2001.

I did not know that. So I presume Registrars allocated cases or how did it work?

The threat of industrial action from lawyers opposed to the expansion of the Public Defence Service is a self-interested attempt to stay hitched to a taxpayer-funded gravy train.

Despite claims to the contrary, talk of legal aid lawyers working to rule in protest at the changes is primarily motivated by the same reason behind most industrial action – money. …

It is not hard to feel some sympathy for legal aid lawyers caught by the changes. The vast majority are scrupulously honest, yet the whole profession has been punished for the greed and misdeeds of a few.

But the profession had plenty of warning that the Government was concerned about the rising cost of legal aid and should have put its house in order. The failure to do so left Mr Power with little choice but to act. The threat of protests against the PDS should be seen for what it is – a last-ditch bid to get him to change his mind, motivated by a looming loss of taxpayer-funded income. He is right to stand his ground.

It is somewhat ironic that a National Government is partially nationalising part of the justice sector, but I thinks the changes are necessary. The status quo wasn’t defensible.

THE CRIMINAL barrister who took on more legal aid cases than any other – 599 last year, earning him $431,000 – has lost a last-ditch bid to stop changes that will end his ability to take on as many cases as he likes.

After four years in the business, 30-year-old Tudor Clee said he would “most likely” have to quit, with projections his caseload would drop 91%. From November 29, those who want legal fees paid by the taxpayer will be unable to nominate which lawyer represents them. Instead lawyers will be put on a roster and be awarded an equal number of cases.

Not bad to be earning $431,000 from the taxpayer by age 30. And I suspect his expenses only consist of a car boot.

With 250 work days a year, it means he was doing two cases a day. One can only wonder about the quality.

Clee told the Star-Times he currently handled “twice as many legal aid files as any other lawyer in New Zealand” but under the new scheme would be lucky to be given 51 files a year – one a week.

He said the average payment would be $700, but could be as low as $220 for some minor charges.

My advice for Mr Clee is to consider the novel prospect of trying to obtain clients who use their own money. If he is really good at his job (and one would hope so if he had 600 legal aid clients a year) he should have clients beating down his door wanting him to represent him, and willing to pay for it.

The Dom Post reports:

Delays in legal aid payments because of new computer procedures are causing problems for lawyers unable to pay their bills or further their clients’ cases.

Wellington specialist civil liberties lawyer Michael Bott said complicated new computer procedures and new forms that had to be filled in were delaying the payout of fees to lawyers, who were struggling to pay their own bills.

“Lawyers have rent or mortgages and they have to pay staff and sometimes the payments have been delayed weeks.”

The forms had become so complicated that the amount of time spent filling them in might not be worth the payment a lawyer ultimately got, he said.

Mr Bott earned more than $348,000 in legal aid for the July 2009 to June 2010 year.

I actually had some sympathy for legal aid lawyers up until Mr Bott implied that the amount they earn is so trifling it is not worth the time to fill in the forms.

The Legal Services Agency is obviously having some transition issues, and they should be able to process and pay promptly. But lawyers don’t do their case any good, by complaining that the amount they earn may not be worth the paperwork, when their earnings (just from legal aid) was $348,000.

Criminal defence lawyers have escaped remarkably unscathed by the damning report they received from a ministerial inquiry into legal aid last year. Decisions announced by the Justice Minister, Simon Power, this week will impose requirements on publicly financed lawyers that are no more than reasonable and long overdue. …

It will be interesting to see how well a full-fledged Public Defender Service competes with the car-boot brigade. Mr Power has been advised that the costs of setting up the service can be recovered in lower operating costs. It is hard to believe lawyers working in public service conditions can match the efficiencies of those who work with low overheads and greater mobility, but we may see.

The difference may be in the remuneration lawyers at the PDS get, compared to the income a car boot lawyer can make from legal aid.

The Press is concerned over the proposed Fijian media controls:

The freedom of the media clearly remains a totally alien and undesirable concept for Fiji’s self-appointed leader, Commodore Frank Bainimarama. …

The decree, to be enforced by a media authority appointed by the regime, would provide for fines of NZ$344,000 for news organisations that failed to comply with it.

Individual journalists whose work was deemed to be critical of Bainimarama’s regime would face fines of up to NZ$69,000, which would be crippling in Fiji, and a possible five-year prison term. To ensure the authorities knew who had written a story, it would also be an offence not to identify the journalist concerned.

And

The regime claims its decree is intended to encourage responsible journalism, but nothing could be further from the truth. Rather, it aims to ensure the news media cannot perform its democratic role of holding Bainimarama’s unsavoury government to account and promoting free and frank debate on issues of public interest.

Absolutely. I want to believe that the Commodore has a plan to put in place a non race based constitution, and return to democratic elections in 2014. But his actions point towards an ongoing dictatorship.

The Dom Post focuses on the Princess Ashika ferry tragedy:

The report of the Tongan royal commission of inquiry into the sinking of the ferry Princess Ashika has laid bare a system of government as riddled with flaws as the ship was with rust – and just as dangerous. …

However, it is up to the king to deal with the systemic ones that allowed people such as Lord Dalgety QC (the title is Tongan), now resigned transport minister Paul Karalus and Prime Minister Feleti Sevele into pivotal roles in his kingdom. The report notes that Lord Dalgety, the Shipping Corporation of Polynesia company secretary, “clearly lacks integrity and honesty, even when giving evidence before a royal commission” and that “he was not a fit and proper person to be a company secretary of any company in Tonga”.

I have some friends who have lived in Tonga. They alerted me to the vileness of Lord Dalgety some time ago, and what I have seen of him on television reinforces their view that he is a deeply corrupt and racist individual. His arrest was a very good thing. While I don’t condone Wikipedia vandalism, I did have to laugh at the edit done to his Wikipedia profile which said:

On February 26 Lord Dalgety, the Secretary of the Shipping Corporation of Polynesia Ltd, gained an entry in the Guinness Book of Records as the world’s lowest form of life

Back to the editorial:

What must not be forgotten in all this is that 74 people drowned. No women or children survived. The impact in a country the size of Tonga is, as commentator Josephine Latu has pointed out, the equivalent of 3200 New Zealanders dying. The Princess Ashika tragedy was a scandal that cannot be repeated.

Absolutely. And may the tragedy bring about some democratic reform.

The ODT talks foreshore & seabed:

Just let us pause for a moment: if the legal status of the foreshore and seabed is to be “public domain”, then who owns it, and therefore can claim the rights and benefits of ownership?

Will Maori?

Will Mr and Mrs Joe Bloggs?

Will the Crown – the obvious choice?

On the basis of the options paper published by the Government last week, in which “public domain” is the Government’s preferred choice, the issue of ownership most likely will be determined in the long term by the courts, piece by piece, over time.

Well yes courts do determine rights. The ODT editorial writer (whom I suspect is the former Labour Government Press Secretary) presumably prefers the status quo where the right to test your rights in court was extinguished.

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).

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.

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.

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.

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.

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?

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!

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.