'Car boot' lawyers cashing in on legal aid

Dame Margaret Bazley has criticised the sole practitioners she calls 'car boot lawyers.' Photo / Mark Mitchell

Poor-quality defence lawyers working out of their car boot and racking up legal aid bills on the taxpayer are plaguing Auckland's courts, a review has found.

Dame Margaret Bazley said legal aid in the criminal courts was characterised by "inefficiency and poor service".

She wants an investigation into why the problems are more acute in Auckland, where the legal aid bills are also on average higher than in the rest of the country.

Dame Margaret blamed the proliferation of sole practitioners who she said were colloquially called "car boot lawyers".

She said these lawyers, who were paid between $105 and $182 an hour, sought to minimise overheads in ways such as not having an office, and took a heavy caseload of legal aid work.

There was a correlation between a high proportion of sole barristers working on a large number of cases and "a strong theme of dissatisfaction with lawyers' practices in Auckland courts", said Dame Margaret.

A small but significant group seemed to be involved.

Dame Margaret released a discussion document yesterday as part of a review of the legal-aid system she is undertaking for Justice Minister Simon Power.

She said the criminal legal-aid market was failing.

She listed complaints about lawyers turning up to court without having done basic preparation such as reading the prosecution's brief or even having spoken to their clients.

Lawyers were also over-committing themselves and not turning up because they were busy on another case.

In Auckland, 77 per cent of legal aid criminal cases were handled by sole practitioners.

Dame Margaret said it was easy to become a legal aid lawyer, and performance was not monitored "to ensure the taxpayer is getting value for money".

Few sanctions were available.

There was also concern about abuse of process of the "duty solicitor" role, for which legal aid lawyers were nominating each other in contravention of the rules.

Dame Margaret said the payment structures and low pay by legal standards were helping to entrench bad behaviour by lawyers that added to court delays.

She said quality could not be expected when payment rates were such that lawyers took on more work than they could handle to generate sufficient income.

She said New Zealand was facing similar problems to the United Kingdom, which had problems recruiting younger lawyers to criminal work because of the long hours, poor pay, lack of security and poor public image.

The current system - under which lawyers charged an hourly fee for their services - may reward them for extending cases, Dame Margaret said. She asked if "bulk funding" might be a better option.

The Public Defence Service, now available only in Auckland and Manukau, showed cost savings could be achieved with no difference for clients.

The cost of legal aid has been soaring. Last year, it cost $123.9 million, up from $105.6 a year earlier and $84.4 million five years ago.

Payments for criminal cases have increased 51 per cent over five years because the number of prosecutions has gone up.

"This is not a sustainable business model," Dame Margaret said.

She said improving pay rates and eliminating the administrative burden of legal aid could be one way of making better-quality lawyers more willing to participate in the legal aid system.

Senior Auckland lawyer Gary Gotlieb said the "pay peanuts, get monkeys" formula had created a small group of rogue lawyers who needed to be held to account, as they were giving their colleagues a bad name.

Mr Gotlieb said a lawyer had to be a "mug" to choose criminal law. Many lawyers like him were now doing legal aid as a public service. The average commercial lawyer was able to charge $400 to $500 an hour.

Dame Margaret is to report fully to Mr Power at the end of this year.

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The taxpayer's bill for legal aid:

2003/04
$84.4 million

2008/09
$123.9 million