Jonathan Temm: Crown Solicitor service a blueprint for legal aid

Jonathan Temm is president of the New Zealand Law Society. Photo / APN

The suggestion of strike action or work-to-rule by some legal aid providers is an indicator of the concern felt at plans to expand the Public Defence Service (PDS).

It is important to stress that the Law Society does not advocate a strike or work to rule. This is not an available lawful option, given the individual legal aid contracts that apply. Legal aid providers are also not simply contractors to the Legal Services Agency. Like all lawyers they have obligations to the courts and to their clients.

The Law Society also supports those lawyers who work for the PDS. We have never attacked their integrity and professionalism. We support all our members, wherever they choose to practice.

The planned expansion is part of a series of changes aimed at controlling legal aid costs. The Law Society believes that the changes fail to address factors which have increased the public cost of legal aid. We believe the reduction of legal aid eligibility threatens some fundamental rights, and I would like to outline our concerns at the effectiveness of the planned PDS expansion.

The Law Society's focus is on questioning the ultimate benefit to all New Zealanders of a greatly expanded Public Defence Service. We believe that expansion will impact on legal aid quality and taxpayer cost.

As a small, locally focused, high-quality legal service run in competition with private legal aid providers, the value of the PDS has been endorsed by two independent reviews, judicial and anecdotal feedback. However, when this is expanded nationwide in 11 different centres, the future for quality public legal services becomes more uncertain.

In spite of the good, well-intentioned people working for it, a large Public Defence Service may suffer the fate of other government departments: underfunded, under-resourced, and overloaded with work. Add the inevitable burdens of policy, procedure and administrative bureaucracy and it becomes less and less effective.

A Legal Services Agency review by former Auditor-General David Macdonald concluded that the hourly cost of running a law firm was about $74 per hour in 2007. An expanded national Public Defence Service - which will effectively be the largest national law firm in New Zealand - will need to do all the things private law firms do: employ legal and other staff, lease premises, purchase support equipment, institute risk management processes and meet all the other overheads required by any business.

The Government's other major legal agency, Crown Law, with 198 staff, reported salary and wage costs of $18.623 million in the year to June 30, 2010. This worked out at an average cost of $94,056 per person - before adding in building rental, risk management/insurance, operating expenses, travel and other support costs. The business of law is an expensive business.

It is very difficult not to conclude that running a national PDS will end up far more expensive than a continuation of the current "public/private" model. Current estimates are that 450 staff will be needed for the 11 centres.

Criticism is fine, but what other options are there? It is important to state that the Law Society accepts entirely and without question the Government's need to control public expenditure. We do not challenge the Government's right to make policy in pursuing its agenda.

In expressing concern at whether the planned PDS expansion will really reduce costs and continue to deliver a high-quality service, I can point to an existing responsive public/private model in our justice system. This is the Crown Solicitor service. It has worked very well for decades and delivers very effective prosecution on behalf of the Crown around New Zealand.

One option would have been that Public Defender warrants could be issued to individual legal practitioners of experience and proven ability.

Those personal warrants could then be taken into a private law firm practice and partnerships using private equity and resources, but always maintaining a quality and standard agreed with other stakeholders. Clients would return voluntarily to such a firm as the market forces operate. There would be no need for a government-imposed percentage (33 per cent/50 per cent) policy. Civil and family legal aid services could also be provided. Such a model is economically efficient and enduring. The current model is not.