A senior South Canterbury lawyer is backing Law Society comments that legal aid in New Zealand is on the brink of collapse, saying people are being left without representation.
On Thursday, a South Canterbury woman spoke of her experience being turned away from every provider in the district.
She had called every legal aid lawyer in South Canterbury, trying Oamaru and Ashburton before eventually finding a firm in Christchurch able to take her family law case on.
JMJ Lawyers director and criminal legal aid litigator Tim Jackson said the woman’s experience is all too common.
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“It happens all the time, people ring us trying to get a lawyer, and tell us they’ve tried 10 other places.
“For general civil legal aid, we just have to say we don’t have the capacity, which is directly linked to the difficulties in funding.”
He said he’s aware people are really struggling to get family lawyers in Timaru at the moment.
“All the current family lawyers are busy already – there just aren’t enough available.”
Jackson agreed with recent comments by Law Society president, Tiana Epati following the release of a nationwide survey of legal aid providers, that the system is “collapsing”.
“From my experience, if anything [her comments] are understated.”
Jackson said the system is in a “really poor state, and it’s getting worse by the day”, and any discussion of legal aid is part of a “larger and almost hopelessly complex picture”.
“The difficulty is these conversations that have arisen now, they’re conversations in desperation. By the time we’re having them it’s too late.
Legal aid pay rates should rise immediately to prevent the loss of skilled lawyers and a comprehensive review of procedures, assumptions, and allocation of resources is needed, Jackson said.
Hourly pay rates have not increased since 2008, and are around half the rates Crown prosecutors and independent counsel receive.
“No private sector organisation could survive if it was based on near break-even rates for work at already low rates and not adjusted to inflation or cost of living for 12 years.”
The Law Society report shows legal aid lawyers turned away more than 20,000 people in the past year.
Jackson said the lack of training opportunities is a significant contributor to the shortage.
“The problem is there aren’t enough lawyers doing it, and that’s because there are too many barriers to lawyers getting experience, and no one’s being paid to learn,” said Jackson.
He said legal aid needs to pay people not just to do the work, but to do it competently, and enable training of other lawyers to do it.
“The training system at the moment is other lawyers saying, ‘Can I tag along on a jury trial and be your unpaid junior?’
“They are seeking experience and want – and need – to take some active part of the trial, which causes the essential problem; I’m not going to put them in charge of any witnesses or cross-examinations or anything that might be crucial at trial, because with all due respect to the desire of others to learn, I cannot jeopardise my client’s defence at trial to train someone.”
It amounts to a further burden to try and manage as part of a fee-capped case on already discounted rates, he said.
Jackson said the shortage is exacerbated by the need for junior lawyers to show they have experience before they can move up the scale, when gaining experience is so difficult.
“That’s where the rubber meets the road, because I’m the one standing in court talking to the judge and the jury and discharging my duties competently – if I don’t, my client will suffer. I could be the subject of an appeal and end up before the Law Society.
“Another of the practical problems is that when the Crown handles a file it is essentially handed to them by the police. The police investigate, talk to the witnesses, prepare the statements, package it and hand it to the Crown.
Jackson said when defending someone – on less money and less time than the Crown – the defence has to do that work themselves.
“You have an allowance to do a trial. They will usually cap the amount of preparation for the jury trial at 10 hours, so if you end up preparing for 30-hours – which is conservative – you just have to wear it.
He said in almost every criminal matter, legal aid lawyers are not getting paid for the time they work.
“For every hour they pay us, there’s about three hours of unpaid work.
Jackson said it is onerous having to constantly apply and reapply for further grants.
“You spend more time applying for money than spending it.
“It makes no commercial sense. The big firms won’t look at criminal legal aid, it’s smaller firms and local lawyers like myself.
“Anyone competent will do their work properly and professionally, which means you get hit with a discount because it takes time and close attention to a myriad of facts, and substantive and procedural rules. That might be alright for one case, but spread it across 10 cases…”
Jackson said this results in many lawyers deciding it’s just not worth doing legal aid work.
“It’s hard to argue they’re wrong.”
“Even in the [Law Society] survey they’ve based a lot of this on, there were questions about whether you do pro bono work, which is a cute way to describe it. It’s dressing up and sanitising working for free with a Latin name…but that’s what it is.
Jackson said the crisis is a result of long term underfunding.
“We’re seeing the results of 15 or 20 years of neglect.”
He points to societal attitudes and assumptions to help explain the chronic underfunding.
“There are underlying assumptions that no one addresses – for example, that every one who is charged with a crime probably did something wrong and doesn’t deserve a sound defence, or … that resolving crime is a funding bottomless pit, or the great unspoken attitude that most of us are not affected by this so who cares, let’s spend as little as possible.
“So when the Government looks the other way on funding legal aid, which is what has happened, it’s as though there’s no interest in the fundamentals of justice – the right to a fair and properly prepared trial, or the need for the justice system to reflect what we expect as acceptable minimum standards … There are massive injustices.”