I’m not going to get into the whole debate about the NZ Legal Aid Reform report largely because, so far, it hasn’t mentioned Expert Witnesses. However, a recent English review of their Legal Aid system seems to show very different criticisms than have recently been levelled at the NZ system and its practitioners (NZ report is at Transforming the Legal Aid System). The key part of the NZ report that criticises how the system is apparently working says:
“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 District 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.”
The UK report: National Audit Office report shows lawyers are ready to walk as failing legal aid system crumbles says that: “16 per cent of solicitors firms providing legal aid criminal defence services make 0 per cent profit and 14 per cent of firms make only 1-5 per cent profit. The figures represent the position before the partners receive a single penny – 0 per cent profit means that the partners did not earn any income whatsoever for their work. In effect, they are being cross-subsidised by more profitable work that the firm does. Most worryingly, says the [Law] Society, 28% of firms said they were unlikely to be conducting legal aid in five years time because of unprofitability, the prospect of tendering or retirement.”
Different criticisms and problems, very similar legal systems. How is it all going to be fixed?