Monday, 8 May 2017

Legal Aid

Like many lawyers in the litigation space, I used to undertake work on legal aid. From 1978 when I was admitted to the bar, legal aid grew to a substantial part of many lawyers practice, including mine. It was very simple initially, because in criminal legal aid, the judge would often assign people on the spot. It later grew into a more sophisticated model, where the applicant needed to complete a form. The legal profession supported the use of legal aid, and set up committees of volunteer lawyers who would process the applications for legal aid, particularly in civil cases and family cases. These were unpaid positions, and the lawyers would use their own local knowledge to quickly process large numbers of applications. I was a volunteer on such a committee in Auckland for some years.

Gradually legal aid became more political, and we began to hear criticism of lawyers on a gravy train. However there were always challenges with legal aid because the hourly rate was sadly neglected for many years (no politician wanted to give lawyers for money) and some enterprising lawyers used the system with some efficiency, which is not a criticism, to earn reasonably good incomes from legal aid.

Political interference then brought in the very unbalanced report from Dame Margaret Bazley, in 2009, which was a singular lack of any empirical evidence attacked the operation of criminal legal aid particularly in South Auckland. Based on this report, legal aid was restructured and made considerably more difficult to obtain. For lawyers for the first time there was a process to obtain a provider contract, so that the lawyer had a formal contract with the then Legal Services Agency. Things grew worse, and the agency was swallowed up by the Justice Department to become a unit subject to bureaucratic control of senior Justice managers.

The abject failure to increase rates was then compounded by a very lengthy application process, which all lawyers had to complete to obtain a contract. Many lawyers who did not do much legal aid did not want to go through the lengthy process and dropped off. This is confirmed by statistics which show the number of family law providers has dropped from 1850 in 2007 to 942 in 2016 (and will have dropped further by now). There are smaller towns in New Zealand where it is now impossible to find a family law legal aid provider. And yet, many moved to smaller towns because the cost of living is smaller, because of their reduced incomes. So the average income in those small towns would make more people eligible for legal aid, but the government has manoeuvred the legal aid system to a point where lawyers are no longer interested.

I am not sure that the New Zealand Law Society has been very effective in negotiating with the government on these issues. I suspect part of it is that the politicians just refused to listen to the views of the lawyers. A number of judges have also expressed concerns about the number of self represented litigants, and the greatly increased cost of litigation where an unskilled party is involved.

So when I returned to practice after my previous role, I thought I would obtain a provider contract. Sadly, I have been defeated by the system. Despite having been a provider from 1979 until 2011, I was unable to successfully navigate through the system to obtain a contract. I sent a substantial amount of material to Legal Services, but apparently took too long to complete the forms. I will continue to do pro bono work, but choose not to do so on grounds of legal aid, because I decline to complete the forms again. While the staff at Legal Services were polite, they have obviously been given a straitjacket for new providers, which I cynically wonder is designed to weed out too many applicants.