Editorial: Public service lawyers may not be cheaper

Legal aid lawyers rank low on public popularity charts. To defend criminals is thankless enough, to charge the taxpayer for it even worse. When the lawyers are accused of milking the system by filing hopeless applications and making needless appearances, the charges are readily believed. Now a ministerial inquiry has called them "car-boot lawyers" - sole practitioners working without offices or staff. They are blamed for much of the discontent with defence practices, particularly in Auckland courts.

The inquiry being conducted by Dame Margaret Bazley for Justice Minister Simon Power has issued a discussion paper that speaks favourably of a Public Defence Service that has survived a trial in the central Auckland and Manukau courts and is now permanently established in them. It is to be extended to other Auckland courts. The days of independent lawyers receiving criminal legal aid could be numbered.

Before anyone cheers at that prospect we need to consider the cost of bringing criminal representation into the public service. However wasteful the make-work practices of independent lawyers may be, the costs might not compare to the budget of a government agency with a public service level of accommodation, staffing and employment conditions. Despite the rising bill for legal aid, the taxpayer just might be getting better value from these "car-boot" operators who have no overheads, research assistants or statutory lunch breaks.

Dame Margaret reports that sole practitioners handle 77 per cent of legal aid criminal cases in Auckland. She says the work is easy to get and its performance is not monitored. There were complaints that lawyers turned up at court without having done basic preparation such as reading the prosecution's brief or even speaking to the defendant. Frequently lawyers did not turn up because they were overcommitted and busy on another case.

Court delays are costly for the taxpayer, cruel to victims of crime and frustrating for all concerned. But would lawyers employed as salaried state servants be more efficient with their time? Would they meet clients or exchange paper with them?

The Bazley report says the Public Defence Service has saved $985,000 in legal aid over four years. Its cases have saved $400,000 in court time through a two-thirds reduction in jury trials. But the independent bar has done some comparisons too and claims that its costs per grant were 7.7 per cent lower than the Public Defence Service in 2006, 18 per cent lower in 2007, 6.3 per cent in 2008.

The service's overall conviction rates have been about the same as those for cases with independent defence lawyers. In the more serious categories of crime, the service claims a significantly lower conviction rate than private defenders. Public defenders, according to the report, have a better rapport with police prosecutors.

When a Public Defence Service lawyer advises that a client will be pleading not guilty the prosecutor is more likely to reconsider the charge than if a private practitioner gave the same advice.

The minister has declared himself impressed with the Public Defence Service though he told the Herald there would always be a place for "specialised, experienced criminal lawyers who operate at a different end of the offending scale".

In the lower courts the writing seems to be on the wall for a breed of streetwise criminal defender who operates on human instinct and tactical wit more than fine points of law. In their place we are likely to see a new branch of the public service.

It is hard to believe it will be cheaper.