Legal aid lawyers in New Zealand are doing it tough in a situation where they are earning less than ever, according to a report in Law News but poor communication from the legal aid division of the Justice Ministry makes it even less attractive than the miserable pay rates, according to the diminishing number of legal aid lawyers.
The report quoted barrister Shane Elliott from Augusta Chambers, a self-confessed ‘bleeding heart socialist’ who handles legal aid work because he feels he should, is less than impressed with the way the legal aid process is handled.
He points out that the processes involved with the Ministry are confusing and poor communication sees lawyers wasting valuable time and working unpaid when handling the often equally confusing application process.
“For civil, there’s quite a lot of work for a lawyer before we are even approved for the funding.
“There’s a section that the lawyer has to fill out which basically is a merits-based analysis of what the claim is, and why it warrants legal aid. This, of course, is work you can’t do until you’ve reviewed the file.
“You don’t get paid for any of that. Then you have to provide an estimate of the overall hours and costs of the file, which is impossible to say because there are a million different permutations.
“So, for some of the more complicated ones, I’ve written to legal aid and said, ‘look, I need an interim grant and a fixed number of hours just to review this.’
“But the communication is basically non-existent.”
He points out that there is virtually no personal engagement and no guidance from the Ministry on the procedures. If a case takes longer than estimated there is no inclination by the powers that be to approve hours retrospectively.
Chief Justice Helen Winkelmann has previouslycalled for a comprehensive review of the legal aid system where lawyers have been earning less than the minimum wage with medium and larger law firms withdrawing completely from providing legal aid services.
A Law Society survey in 2021 shows that even if a defendant qualifies for legal aid they would have difficulty finding a lawyer with over 60 percent of lawyers having no interest in providing services via legal aid. The figure today is clearly one where most lawyers would avoid the ‘opportunity’ to handle legal aid work and comply with the rigorous processes required.
In 2021 the legal aid pay rates were the same as they were in 2008 and little if anything has changed.
A report three years ago saw similar complaints to today. Legal aid and human rights lawyer Tony Ellis, now semi-retired, said then that he did not know how the system could be effectively revamped:
“A monumental cock up? People commit suicide because they can’t get their cases heard? … I can’t actually see myself coming up with an answer to your question, because the whole thing is so depressing,” he said.
The previous government introduced new funding of $148 million over four years in their 2022 budget with the major change being to alter the financial threshold permitting over 90,000 more people eligible for aid, as well as providing a 12 percent rates increase for the lawyers.
But the situation remains critical.
In a memo dated November 29, 2023, addressed to incoming Attorney-General Judith Collins KC, the Chief Justice emphasized the urgent need to “refocus on equitable access to justice.”
Training Sessions in the Works
Tracey Baghuley, the Legal Services Commissioner, said that training sessions are to be introduced to help the legal aid system work more efficiently.
She said fixed fees were designed to streamline the process, but a lawyer may request an amendment to be paid on an hourly-rate basis where a fixed fee is inadequate as a result of case complexity or additional work.
“Legal Aid Services does not operate a case management model ….to ensure that all queries and applications can be processed in a timely manner. Legal Aid Services is supported by a contact centre (0800 2 LEGAL AID), and calls may be transferred to grants officers to discuss specific applications,” she told Law News.
Barrister Julie-Anne Kincade KC has indicated that improvements are occurring and meetings with commissioner are ‘very positive’.
“The overall rates for criminal lawyers were increased last year, not to a satisfactory extent, but they were increased.
“Duty lawyers are the most poorly paid lawyers in the criminal aid group, and these roles are currently under review.”
