Wednesday, 2 September 2009

Legal Aid

The report from Dame Margaret Bazley is on the face of it, somewhat damning of the legal profession. She attacks "car boot" lawyers who maintain a low cost practice with few of the trappings of a usual law practice, and who take on more work than they can actually handle. The overheads of running a law practice are not small. With the licence fee now about $1800 per annum, professional indemnity insurance at at least $3000, and the need to have at least minimum computing equipment costing around $3000 the attraction of working for $105 an hour seems difficult to understand. It would be hard to rent space, even in the most unattractive rooms, for less than $200 per week and the cost of a phone would be at least $200 a month. This at the very minimum, would be about $20,000 and once the cost of photocopying, stationary, postage and faxes, plus the very minimum law texts, then I would think very few spend this small an amount. Even the car boot must come attached to a car, and the travel costs are not small. The $105 per hour only works if you have continuous work, and plenty of trials do not proceed. The Legal Services Agency used to (and I expect still does) scrutinises bills from lawyers carefully, and only allows a set time for preparation and not all adjournments are approved. I rather think some lawyers take on a legal aid role because they cannot find a firm to work in. Others do so for choice, but Gary Gotleib astutely observes that in private practice the hourly rates are much higher and he says a lawyer had to be a "mug" to choose criminal law. The reason that the legal aid system has problems is that the rates are too low, not the other way. More experienced lawyers would take on the work, and operate more efficiently.
Other factors also affect the higher costs. Some years ago much of the approval of legal aid applications and of the bills was handled on a voluntary basis by local committees of lawyers, working as unpaid volunteers. They had local knowledge of who was competent, who was overbilling and who was efficient. Instead we now have a large bureaucracy of paid employees. They seem to be adequately competent, but not unreasonably want to be paid. Offices have to rented and a central office is required. It would be valuable to compare the old system in terms of costs. It is too late to return to this. I believe that lawyers have been discouraged from much pro bono work such as this, at least for lack of thanks and recognition.

What is the answer?

Encourage more appropriate charges instead of over prosecution-always a problem. Then, if the appropriate charges are laid, encourage more guilty pleas by use of greater allowances for preparation for sentencing, more use of restorative justice and more resources for expert reports such as drug and alcohol abuse, psychologists, and better probation reports.

For civil legal aid, roll out the mediation model which is to be introduced for family law, and use legal aid to fund mediation in more civil cases.

The rest? Just accept that where the rule of law applies some people will need adequate lawyers but cannot pay for them The cost of large numbers of unrepresented parties will be far greater than the costs of legal aid.

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