Lawyers question legal-aid change

Jonathan Temm
Jonathan Temm
Dunedin lawyers are vehement in their concern about changes to the system of allocating legal-aid lawyers, which they say are causing disruptions and delays for clients, lawyers and courts.

The New Zealand Law Society says it agrees with some of those concerns, but not all of them.

Since November 29, legal-aid lawyers have been allocated on a roster basis to clients facing lower level charges. Neither clients nor lawyers have any choice of assignment and there is a waiting period while lawyers are assigned.

Previously, people could choose their own lawyer and potentially get their case under way immediately.

The changes were intended to increase legal aid's quality, accountability and cost effectiveness, following a review of the system.

However, Dunedin lawyers are critical of the changes, which they say are focused on addressing problems in other parts of the country that do not exist in Dunedin.

Lawyers who spoke to the Otago Daily Times said the new system was resulting in legal-aid clients appearing in court unrepresented, being assigned multiple lawyers, being remanded in custody unnecessarily and not getting the best representation because the lawyer they were assigned might not know their history.

Some lawyers were also concerned the distribution of cases was not even.

New Zealand Law Society (NZLS) president Jonathan Temm said the same concerns were popping up across the country. The society supported some of those concerns, but not others.

He said NZLS had raised several issues with the LSA.

It was particularly concerned that some legal-aid clients who should get bail straight away had, since the new system started, been remanded in custody three or four times before a lawyer was assigned, identified and then became available.

Mr Temm has previously said clients, lawyers, prison officers and judges were all unhappy about this happening.

To solve the problem, LSA needed to broaden its policy and use discretion to assign a duty solicitor present in court at the time the person first appeared, he said.

Lawyers and the NZLS agreed it was concerning some legal-aid clients who faced multiple charges were getting assigned duplicate lawyers.

One Dunedin lawyer said she saw three lawyers appear for the same individual in the Dunedin District Court on the same day in relation to different charges.

Mr Temm said the issue appeared to be about staff processing of assignments, as the LSA policy was to assign one lawyer where possible to legal-aid clients appearing on more than one charge.

He did not believe the number of assignments was unbalanced, although he was aware that perception existed.

He had seen preliminary figures on assignments and was confident the agency had acted with integrity in its assignment process.

He believed the system was working as designed, by preventing some lawyers from having an excessive number of legal-aid assignments.

As far as claims clients were not getting the best representation because rotational lawyers did not know them well, that was actually only an issue where there were mental-health issues that might be leading to a person's criminal behaviour.

It was LSA's policy to assign people with accepted mental-health issues to lawyers they had had previously and, if that was not happening, it was a processing issue the LSA needed to address.

If people were really not happy with the lawyer they were given free of charge, they had one chance for reassignment. Failing that, the lawyer they had previously always used would still be there.

"It's just that the taxpayer will not be paying for it.

"But, quite frankly, if people have been going to the same legal-aid lawyer for 20 years or whatever, perhaps they could benefit from a new lawyer."

A LSA spokeswoman said there had been some boundary problems between duty lawyers and assigned lawyers, particularly for bail applications, that resulted in a few unrepresented clients being remanded unnecessarily.

The agency had developed new instructions to address that.

These made it clear that duty lawyers were responsible for dealing with all category 1 bail matters.

For the more serious categories, duty lawyers would do what they could to resolve opposition to bail with the prosecutor, and if opposition continued, the agency would make an urgent assignment. In some cases, that would be to a duty lawyer.

She said the agency had recently received anecdotal reports of cases being assigned to more than one lawyer and was looking into it as a matter of urgency.

Generally, criminal legal-aid assignments were being evenly distributed among legal-aid providers, she said.

There were some variations explained by clients who already had an open case being assigned to the same lawyer.

Lawyers who were part of the police detention legal assistance scheme and received after-hours calls from police stations through the scheme generally had those cases assigned to them and not counted against their rotation total.

The availability of lawyers over the holiday period affected the even distribution of criminal legal-aid cases.

The first report on the number of assignments each provider has received from November 19 to February 28 was released on the agency's website last week.

Mr Temm said at the end of the day arguments for and against one system or another were economic.

"And we may not like that, but we have to live in the real world. It's a service; it's not a free service."

In an earlier report, he said it was not necessarily a bad thing if the new system meant the end of full-time legal-aid lawyers, as relying solely or primarily on legal-aid work was not really the best way to go about a criminal law career anyway.

It was better for young lawyers to work in legal aid for a start and work their way up through the years on mixed private and public work.

- debbie.porteous@odt.co.nz

 

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