Editorial: Reining in the cost of legal aid

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The lawyers whose wigs have been ruffled by the proposed changes to the legal aid system will - or certainly should - be familiar with the maxim that hard cases make bad law.

The principle, enunciated by the distinguished American jurist Oliver Wendell Holmes among others, states that laws passed to deal with extreme events may have unintended consequences when applied to more everyday occurrences.

Both parties might reasonably claim that the idea lends weight to their side in an argument brewing between the minister and the profession over the new way of administering legal aid. Under the plan, defence lawyers being paid up to $900,000 a year from the public purse will have their workload slashed and be assigned cases on a roster. Defendants whose legal bills are being picked up by the taxpayer will no longer be able to choose who represents them in court.

A lawyer would quote Holmes and say that the fact that a few lawyers are making a mint out of legal aid briefs is no reason to radically reform a system that serves the interests of justice efficiently and economically almost all of the time.

The minister could say Holmes supports his argument too. Lawyers' dire predictions that a roster will breach defendants' rights under the Bill of Rights and Commerce Acts stretch the bow too far. Accused people who can't afford a lawyer get one for free - what could be the problem with that?

The obvious problem is that, in legal representation as in most areas of life, you get what you (or in this case taxpayers) pay for. The fear about the quality of defence that might be available to the disadvantaged has frustrated attempts to establish a Public Defender Service in case salaried work attracted only idealists and impecunious new graduates.

Defence lawyer Tudor Clee, who took on 599 legal aid cases last year, earning $431,527.35 in the process, unsuccessfully sought an injunction against the Government, saying that defendants should be able to choose who defends them. Justice Rebecca Ellis, refusing to grant the injunction, remarked that Clee's income "is likely to drop unless he changes the way he operates".

It was hard to resist reading a smirk between the judicial lines but it's the nub of the question, really. The way things operate may work very well for lawyers who write big invoices. But they are not working terribly well for the country, which has to look to cut costs wherever it can.

If lawyers widely believe that reform threatens defendants' rights, they might look to their own ranks. Experienced barristers on roster duty could mentor juniors and improve standards of practice. The $159-an-hour fee, more than six times the average wage, is not exactly insulting and if the profession pitched in, it would be an annual contribution of a day or less to a system that otherwise pays handsome rewards.

Legal representation is a vital bulwark between the citizen and the potentially oppressive power of the state. It is a protection that should be available to all, regardless of means and no one is suggesting dismantling it.

But the middle-class taxpayer, too well-off to qualify for legal aid and too poor to afford the best counsel in a time of need, might be forgiven for looking askance at a state-funded system that offers the best representation to recidivist reprobates - and makes lawyers wealthy in the process.