Editorial: An unseemly haste to reform

Opinion

The Scottish economist and moral philosopher Adam Smith famously pronounced in The Wealth of Nations that "people of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices".

It's not a sentiment whose wisdom would be warmly received by the lawyers who work on criminal legal aid. That entire section of the profession came under attack in a December report into the scheme, by which state-funded legal representation is delivered to those who would otherwise not be able to afford it.

The report, by one-time public service mandarin Dame Margaret Bazley, spoke of a system corrupted by lawyers inflating their claimable hours by seeking unjustifiable adjournments or doing unnecessary work, and providing slipshod service.

She claimed that some charged clients illegal "top-up" fees and paid "back-handers" to duty solicitors to get legal-aid clients referred to them and said she had been told that up to 80 per cent of lawyers at the Manukau District Court were "gaming" the system.

Predictably enough, the profession was outraged. A group of 17 lawyers who regularly work at Manukau demanded that Justice Minister Simon Power forward any evidence of corruption to the police or Serious Fraud Office for prosecution.

In expressing anger that the report tainted them by implication, even though it contained "not a shred of specific evidence", the 17 were on solid ground, since Dame Margaret had admitted that her assertions were based on anecdote.

But their letter notably refrained from denying that there was any truth in the report's claims. The suspicion remains - and individual lawyers privately concede as much - that the system is being rorted. It seems that only the extent, not the existence, of malfeasance is in dispute.

And this month High Court Justice Hugh Williams referred to a case before him as "a good example of the lack of discipline in the management of litigation" in which all parties had legal aid - a judicially measured phrasing of the same thing Dame Margaret said.

The Government moved with a haste some saw as unseemly to shut down the legal aid scheme's administering board, the Legal Services Agency, and set up a pilot project in Auckland for a Public Defence Service (PDS).

This week, Power announced that the service will be expanded to Hamilton, Wellington and Christchurch. But the pilot has been sharply criticised for its short timeframe and the conclusions drawn about the potential savings, particularly when weighed against the quality of service delivered.

The profession's suspicion is that the change is driven entirely by fiscal imperatives, though that is no bad thing: there is no sector of the economy that is not having to cut costs and lawyers paid from the public purse are not exempt.

But concerns remain that a PDS of salaried staff might attract only idealists and young graduates of lesser calibre who will use it as a training ground before moving to more lucrative criminal law practices.

The mentoring of youngsters by grizzled veterans, rather than being boosted, could come under greater pressure. And having the service delivered by a over-regulated bureaucracy, rather than flexible freelancers, could make it more inaccessible to those at the bottom of the social heap whose interests most criminal legal aid is meant to protect.

The profession has only its own practitioners to blame for the fact that this shake-up has come. But the Government owes it to the clients of legal aid to ensure they are not crushed in the stampede for reform.