See:

• Ministry of Justice Out-Link - Transforming the Legal Aid System - Final Report and Recommendations — Ministry of Justice - New Zealand
• Report - Transforming_the_Legal_Aid_System__Final_Report_and_Recommendations.pdf
• Summary of submissions - LAR_summary_of_submissions.doc

Executive Summary of Legal Aid Review

EXECUTIVE SUMMARY

Transforming the Legal Aid System

The legal aid system is essential to the operation of the justice system: its effect extends beyond the individual who is represented by a legal aid lawyer. The legal aid system’s operation can help the courts run smoothly, or it can bring the court system to a halt. The range and mix of services, and delivery method, can help people to resolve their problems, or can perpetuate social exclusion.

The legal aid system can no longer focus solely on legal representation one case at a time. It needs to focus on helping people to resolve their problems before they progress further into the justice system, and to leave the justice system by resolving the problems that took them there in the first place. The legal aid system must anticipate and meet legal needs through a variety of means, not just through legal representation. It must be integrated with community-based information and advice services. It needs to have a national overview and be strongly linked into government agencies and non-governmental organisations throughout the justice and social sectors.

The legal aid system needs to be transformed for it to become more effective. While the legal aid system cannot control externally driven demand, it can control its own efficiency and effectiveness.

The legal aid system currently faces a number of issues, which are acting together to cause systemwide
failings. They include:

• the strong operational focus of the Legal Services Agency

• poor relationships between the New Zealand Law Society and the Legal Services Agency, and other key stakeholders

• reluctance by the Legal Services Agency to exercise its statutory discretions, particularly in relation to lawyers

• cumbersome administrative procedures originating from the Legal Services Act, which seems to be, at times, overly protective of the market share of the lawyers who provide legal aid services

• inflexible procurement provisions in the Act, which prevent the Legal Services Agency from procuring services in the most efficient way possible variable quality legal aid services, resulting from ineffective barriers to entering the legal aid system

• over-reliance on complaints as an indicator of lawyers who are failing to perform. The
incentives are stacked against complaining, which means that while everyone knows who the bad lawyers are, nobody will act on that knowledge.

These factors work together to create a legal aid system that is open to abuse by lawyers and defendants. There is a small but significant group of lawyers (and some defendants) who are taking advantage of this.

More efficient machinery for the legal aid system

There are significant problems with the governance of the legal aid system and poor dynamics between the Legal Services Agency and the legal profession. The Legal Services Agency has to administer a system in which the participants will not take responsibility for the quality of the legal services provided. It appears to have been paralysed by difficult relationships and the assertion of control over the legal aid system by the legal profession.

The different perspectives are now so entrenched on both sides that nothing short of structural change will improve matters. A clean slate is needed to allow new relationships to form and a rebalancing of control in the legal aid system to occur.

The Legal Services Agency’s attempts to hold lawyers to account for their performance in the legal aid system have not been successful. Consequently, some poorly performing lawyers (and what appears to be a small but significant number of corrupt lawyers) have been able to stay in the legal aid system, to the detriment of their clients, the courts, and the legal aid system as a whole.

Administration costs in the legal aid system are becoming unsustainable. This is not a result of poor management: substantial drivers of administrative expenditure include the Legal Services Act itself, and increasing volumes of applications for legal aid. H owever, administrative costs have now reached $20.4 million and have become a driver of legal aid expenditure in their own right. The Legal Services Agency struggles as a small bureaucracy outside the mainstream of government bureaucracies and is not able to keep abreast with trends and developments.

These issues require reconsideration of the Crown entity model as the machinery for running the legal aid system. Although a level of independence is necessary in relation to individual grants of legal aid, that independence can be achieved without the expense of creating a standalone agency. It is time the administering body was brought closer to the government. It now has a key role to play in justice sector policy development and needs to be resourced accordingly. It must have the capability to be responsive to implementing the fundamental changes recommended by this review. The functions of the Legal Services Agency should be moved into the Ministry of Justice, and the decisions which need to be made independently of the government vested in a statutory officer. The Ministry of Justice has the appropriate strategic fit and compatibility, and would be able to maintain the special characteristics associated with the legal aid system and link it into the wider justice system.

The transition of functions from the Legal Services Agency to the Ministry of Justice will need careful management to ensure that the legal aid system continues to function effectively.

Administration of the Legal Aid Review Panel should be moved into the tribunals division of the Ministry of Justice and procedures established to ensure its decisions are made independently of both the Ministry and the statutory officer.

Changing the focus of the legal aid system

Focus on direction-setting

A focus on direction-setting for the system is needed. While the roles and responsibilities for direction-setting are clear, they do not appear to be functioning well. Consequently, opportunities are not being taken to be proactive in shaping legal services to make them more effective, or to address legal needs in a way that will make the system more sustainable in the long term. E ffective and strong leadership is critical to embedding strategic planning and using it to drive change.

Focus on customer service

The court system and social services for court users tend to focus on the perpetrators of crime, and ignore their families and the potential that consideration of their needs has for enabling family members to live better lives and to avoid patterns of offending into the future. People entering the court system can be from the most deprived sections of society, and many will be high users of social spending. Many struggle with literacy and language barriers, which render the court system utterly incomprehensible. The approach to basic tenets of customer service in the courts is far too hit and miss in terms of directing people to courtrooms, informing them of the date and time of their next appearance, and providing facilities for the care of children who are brought into the courthouse so they can be kept away from the courtroom.

One of the most important teachable moments in terms of improving the social deprivation of families, and crime prevention with children and young people, is being lost. The government needs to assess spending on social services and consider reprioritising it to extend existing social services into courts in four ways:

• extend the Work and Income case management system into courts

• wrap-around support for families going through court proceedings

• early education services in busy courts

• wrap-around services for young first-time offenders, including assistance into employment.

Barriers to accessing legal aid

People who are entitled to receive legal aid appear to face some barriers in accessing it. These include the level of awareness about legal aid, language and literacy barriers, the availability of legal aid lawyers, and fear of having to make repayments. The legal aid system needs to focus on monitoring the extent to which people face these and other barriers, with a view to lowering them over time.

Māori and Pacific peoples feature strongly amongst those most likely to experience groups of problems that require legal assistance. Arguably, if the legal aid system fails Māori, it fails altogether. Māori and Pacific peoples appear to face barriers in accessing legal aid, in addition to the barriers faced by other eligible people. The legal aid system needs to focus on the legal needs of Māori and Pacific peoples, and the barriers they face in accessing legal aid, with a view to enhancing their access over time.

Initial advice and assistance

There is an extensive network of community-based agencies that provide initial advice and assistance, including Citizens Advice Bureaux and community law centres. The legal aid system needs a stronger focus on initial advice and assistance, which can help to prevent cases from escalating and requiring expensive legal solutions. The Ministry of Justice is currently reviewing community law centres, and this review of legal aid cannot pre-empt that. However, the report makes the following observations:

• Community law centres are too important to be allowed to fail or to have their services restricted significantly.

• There needs to be stronger coordination between community law centres and central government.

• The focus of services should be on initial advice and assistance where services are able to help the greatest number of people for the funding available. The core of services within this area should be available across New Zealand and should meet national standards.

• There needs to be more focus on the quality of publicly funded services provided by community law centres, because this is currently variable.

People, quality, and accountability

Problem clients and repeat clients

Some of the legal aid system’s clients can only be described as difficult. Some enter the legal aid system with the aim of manipulating it to their own ends, or for their lawyer’s financial benefit. They can, for example, engineer the dismissal of their lawyers in an attempt to prolong proceedings or engineer grounds for an appeal against conviction.

The legal aid system also has a high number of repeat clients, who account for around 63 per cent of expenditure.

A case management system should be introduced for repeat clients who reach a certain threshold and for clients who repeatedly dismiss their lawyers. The case management system should involve giving more stringent consideration of the interests of justice and merits tests. Clients within the case management system should not be entitled to their choice of lawyer. It may also be possible to case manage these clients into other social services, where that would help to resolve underlying problems that are contributing to the repeat grants of legal aid.

The system’s lawyers

The ties that once held lawyers together as a profession seem to be breaking down, and some lawyers appear to be operating as a business without the professional standards and support that used to exist. The legal aid system appears to have had a role in this, through the pay rates and administrative burdens that have led to many law firms exiting the system, and being replaced by barristers sole, “car boot lawyers” in particular.

There are many conscientious and experienced barristers and solicitors working in the legal aid system, who are a credit to their profession. There is also a small but significant proportion of lawyers providing very poor services. Behaviour I have heard about includes callous and arrogant indifference to clients’ needs, and an absolute disregard and disrespect for the court system, its processes, and its participants. Some lawyers appear to be acting corruptly, and should be disbarred.

The poor practices identified in the review include:

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

• practising lawyers being unaware of legal principles and being unaware of their ignorance

• lawyers repeatedly failing to turn up to court

• “car boot lawyers” using a D istrict Court law library phone number as their office number, and
appropriating interview rooms in the court as their offices

• lawyers gaming the system by delaying a plea or changing pleas part-way through the process in order to maximise legal aid payments (I have been told by people who work in the court that up to 80 per cent of lawyers practising in the Manukau District Court could be gaming the system)

• lawyers who demand or accept “top up” payments from clients who do not understand that the Legal Services Agency pays all of the bill

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

These problems are more serious and more entrenched in the criminal bar than in other law types.

More needs to be done to encourage quality in legal aid lawyers. This cannot be driven by the Legal
Services Agency without help from the legal profession itself. Seven changes are needed to enhance
quality:

• raise the barriers to entry: only lawyers with competence and integrity should be able to enter
the legal aid system

• create incentives for lawyers to maintain their competence, quality and integrity

• create a mechanism for the swift ejection of incompetent and/or dishonest lawyers from the
legal aid system

• build ties between legal aid lawyers to limit their isolation and minimise the risk of cases
falling over because of the lawyer’s absence

• require legal aid lawyers to train, supervise, and mentor junior lawyers to ensure long term
sustainability of the legal aid workforce

• pay legal aid lawyers in a way that recognises the services they provide

• clarify the roles and responsibilities of the two regulators with an interest in the area: the Legal Services Agency and the Law Society.

The responsibility for quality is a shared one. While the Legal Services Agency has the primary responsibility for the quality of legal aid services, it should be able to assume that someone issued with a practising certificate is both competent and honest. The Law Society’s role as regulator of lawyers does not always sit comfortably with its role as the representative of its members. The Law Society’s regulatory role is quite new, and significant improvements may yet be to come.

The quality issues with legal aid lawyers are so serious that the situation cannot be allowed to continue for more than three years. There needs to be a review of the quality of legal services, including legal aid services, before three years has expired. If that review concludes that the issues identified in this report have not been rectified, the government should institute an independent regulator for the legal profession.

Procurement of legal aid services

Publicly provided services should be used where case volumes are sufficient to make them an efficient option. The Public D efence Service should be used in courts in Auckland, Wellington, and Christchurch. It should also be used where there are particular problems with quality, and one should be established in Palmerston North as soon as possible.

A new procurement model

A new model for procurement would: help to address the quality issues identified above; reduce the administrative burden associated with legal aid; and take advantage of efficiencies. It would involve bulk funding groups of lawyers (whether in firms, chambers, or looser groupings based around a court) led by a senior lawyer who would be responsible for quality. Senior lawyers would need to demonstrate that they had appropriate infrastructure in place to ensure a quality service would be provided, including:

• an office and office support systems

• ongoing training and development of lawyers in the grouping

• peer support and the ability to collaborate with others in providing the services

• mentoring and supervision of junior lawyers by more senior lawyers.

This procurement system should be very flexible and should not exclude any quality lawyers who want to participate.

Senior specialist lawyers should be contracted on an individual basis to provide specialist services at a rate that suitably reflects their experience and expertise.

Streamlined eligibility assessment

High-volume, low-cost criminal cases should be subject to a streamlined eligibility assessment process. Long term, this could be extended to low-cost cases in other law types and could reduce the cost per application by $123 across 90 per cent of legal aid grants.

Eligible cases would go through a streamlined assessment process with a simplified means test. They would be excluded from the repayment regime, and the Legal Services Agency would allocate a lawyer on strict rotation.

Generally, the preferred lawyer policy should be limited because of its abuse and the distortions and inefficiencies it introduces into the legal aid system.

Management of high-cost cases

The current approach does not focus sufficiently on responsible expenditure of taxpayer funds. H ighcost case management panels should be chaired by a senior public servant and include experts who bring legal, economic, and public policy perspectives. This blend should give better decisions focused on value for money, without undermining access to justice for people on legal aid.

Administrative arrangements for Waitangi Tribunal claims

As a matter of urgency, the government should clarify funding streams for Treaty of Waitangi claims and modify them to ensure there is no possibility of double-dipping or triple-dipping by claimants or lawyers.

ENDS

See:

• Ministry of Justice Out-Link - Transforming the Legal Aid System - Final Report and Recommendations — Ministry of Justice - New Zealand
• Report - Transforming_the_Legal_Aid_System__Final_Report_and_Recommendations.pdf
• Summary of submissions - LAR_summary_of_submissions.doc

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