Let down by the law

The legal aid system operates on the goodwill and generosity of lawyers, and many in need are missing out. Picture / Richard Robinson

When a Blenheim woman seeking a protection order against her violent partner couldn't find a legal aid lawyer, she withdrew the application. Within weeks, she was beaten black and blue again. Her teenage daughter copped two black eyes during the assault, just last week.

"It's exactly what we feared would happen," says Blenheim Women's Refuge manager Angela Brott.

The refuge complained in July that a desperate shortage of legal aid lawyers was forcing battered women to represent themselves in court. Staff at the refuge were even writing affidavits for clients.

Lawyers are deserting the legal aid system just as the Government is preparing to extend it to thousands more New Zealanders.

Last week, a hui of South Island womens' refuges urged the national office to pressure the Government to boost pay rates for legal aid lawyers, hoping this would ease the desperate shortage in towns like Kaikoura, Balclutha, Alexandra and Gore. It is a nationwide problem: in the north, Kaikohe, Thames, Pukekohe and Wairoa have shortages. Even in Tauranga, only a handful of lawyers are willing to take family law cases on legal aid.

Lawyers have been complaining for a year or more about legal aid pay rates, last improved in 1996. The Government has promised to look at rates only after March 1 next year, when a law change will raise income thresholds for legal aid applicants for the first time in 20 years. Lawyers say the change will bring bedlam unless the Government addresses pay rates before March.

While there are elements of an union vs Government pay stoush, the Blenheim incident proves that the lawyers' stand is more than courtroom posturing.

On the strength of injuries from an earlier beating, the victim had obtained a temporary protection order and the partner had moved out. When he indicated he would oppose a permanent order, she was unable to find a legal aid lawyer and did not proceed.

Blenheim was left with just two legal aid lawyers in March when the main provider said it could no longer afford to accept cases.

Though a protection order is no guarantee of safety, there was nothing to stop the partner returning to the house last week and administering another beating, says Brott. "The Government should act to correct this anomaly so women who need protection from domestic violence can access it quickly."

Legal aid is the increasingly poor relation of the justice system despite its lofty status of ensuring representation for all. The failure to adjust income thresholds - for 37 years in the criminal arena and nearly 20 years for family disputes - mean legal aid today is off limits to about 85 per cent of New Zealanders. The income limit for a couple with one child is $19,060.

"There's a huge problem with access at the moment," says barrister Catriona MacLennan. "If you're very poor you can get access and wealthy people can afford a lawyer but there's a huge number of people in the middle, particularly women trying to leave violent relationships.

"If you're doing part-time work, it's very hard to get legal aid."

That will change significantly next March when the income thresholds are substantially raised. The number of grants is expected to increase from 60,000 to around 85,000 a year, with a couple with one child qualifying on an income up to $36,000. But will they be able to find a lawyer?

Senior barristers in sizeable firms have abandoned legal aid, leaving inexperienced juniors to take cases, with preparation time strictly limited by the funder, the Legal Services Agency. New Zealand Law Society president Chris Darlow warned in January that miscarriages of justice might be occurring because competent lawyers couldn't afford to do the work.

Though evidence of miscarriages is lacking, and lawyers aren't confessing to poor outcomes, they point to incidents such as younger colleagues being bullied into proceeding without all the facts, and convictions which may have become discharges without conviction.

"It's becoming a training ground," says Tauranga lawyer Chris Forbes. "It's not just access to justice but the quality of presentation."

Judges are staying out of the politically-charged debate. But the functioning of the courts - under-prepared or absent lawyers, delays and the spectre of more people defending themselves - has become a growing source of judicial concern.

Legal aid's contribution to courtroom problems is highlighted in a paper for the Auckland District Law Society's legal aid committee by Kumeu lawyer Russell Lawn. It says low payment rates have affected practitioners' ability "to provide proper representation to clients and to meet proper practice standards."

Lawn says the failure to review pay rates and the huge increase in sole-practitioner barristers operating without a secretary or office, has accelerated the "polarisation and ghettoisation of the bar".

Community law offices report clients arriving halfway through cases because their legal aid lawyer has dropped them after funding ran out.

MacLennan says those facing a prison sentence can usually get legal aid but large numbers facing minor misdemeanours need a lawyer to have any chance of escaping a conviction.

"A lot of people ripped off by finance companies and loan sharks struggle. It's very difficult to get lawyers to help people like that."

In domestic violence cases, any delay following a beating is more likely to make the judge wait to hear the partner's side of the story than grant a temporary protection order.

There's concern that victims are confronted by fresh-faced lawyers lacking empathy or even sympathy.

"These are women under stress and maybe needing to find somewhere to live for themselves and their children," says Forbes. "Just to be able to get to a lawyer is really important."

While just over 2000 lawyers are registered to do family legal aid work, only half took cases last year. The agency can point to an increase in lawyers taking criminal work. But it has been number-crunching for only two years and cannot say how the numbers compare to, say, 10 years ago.

It's a tough brief conjuring sympathy for society's most privileged. Pay scales for family law cases range from $120 to $165 an hour. But maximum hours for each case are limited, while fees for some work have been reduced.

If the work wildly exceeds the estimate, lawyers can seek more but must provide evidence and survive cross-examination by agency bean-counters.

"People say 'goodness - you get paid $125 an hour', says Takapuna lawyer Wendy Galvin. "The reality is you're lucky if you're clearing $20 an hour if you take into account overheads and the [unpaid] hours worked.

"The effect is people on legal aid do not get the same quality of representation."

And dealing with society's least fortunate - people who cannot read or write, those for whom English is a second language and many with minimal knowledge of legal processes - means cases are complex and their path through the courts unpredictable.

"If [the Legal Services Agency] had to sit there and deal with some of these cases they would understand how long it takes," says Forbes. "It's raw emotional stuff - you can't shove them in and out like a box of marbles."

While lawyers are deserting the system, the Legal Services Agency has expanded considerably in the last three years. It now has 150 staff in 14 offices to process and monitor grants; staffing will rise a further 40 per cent from next March when the Legal Services Amendment Act takes effect.

Auckland District Law Society president Gary Gottlieb says if fees were raised to Crown levels (currently $173-$216 an hour), they would still be around half what a barrister charges privately.

Overheads swallow about 60 per cent of a lawyer's chargeable hours.

But hang on - aren't lawyers, including senior barristers, expected to do their share of pro bono work? Associate Professor David Williams of the Auckland University law school says the obligation to supply adequate counsel for poor clients is enshrined in statutes.

"The difficulty I have is that lawyers these days seem to require quite flash offices with high rents. Their overheads are much higher than they used to be."

"The Government has some obligation but lawyers have to look at the balance between their monopoly right to earn income in court and their ethical obligation to meet the legal system's needs."

Former lawyer Russell Fairbrother, a Labour list MP, agrees. "$120-plus an hour should be enough to run a practice on. Your local garage mechanic charges $60 an hour and the overheads are not that different in my book.

"There's an expectation of a lifestyle which shouldn't automatically accompany a law degree."

Fairbrother believes there's a problem in the way law firms are geared, so they can no longer afford to pay junior rates. "Most clients don't expect sweets with the firm's name on the wrapping paper."

"The pity is that medium-size firms with a half-dozen partners can't afford the overheads to engage low level legal aid lawyers."

With lawyers charging $500-plus an hour for commercial work, there's also a widening relativity issue. "The law society has to be more proactive in ensuring lawyers are able to provide these services."

The Legal Services Agency says evidence that lawyers are leaving the legal aid ship is only anecdotal - but concedes it lacks the data to tell. A survey of people's unmet legal needs is under way, but it will not identify lawyer shortages.

Contracts manager Margaret Pearson says where shortages arise the agency arranges cover. "If a lawyer is unable to help, they should refer the client to us so we can facilitate that."

She says the system ensures serious criminal cases are assigned to more experienced barristers. "There's certainly no shortage of seniority on our list but it comes down to who's actually getting the cases on the day."

Grants manager Robyn Nicholas says the agency will begin reviewing lawyers' fees as soon as practical after March 1.

That's not soon enough for the New Zealand Law Society, which is stepping up pressure for more urgent relief.

Says barrister Paul Heaslip: "The system operates entirely on the generosity and goodwill of lawyers. If there was a change of heart the system would completely collapse."

Using the system

Most commonly associated with scumbag perpetrators of crimes ranging from property to violent assaults, legal aid is the whipping boy of justice hardliners. There is righteous anger that violent offenders can use legal aid to delay the inevitable, and when high-profile cases run up huge bills. In March, the Sensible Sentencing Trust called for a total rethink of legal aid to end frustration over grants to repeat offenders.

Last year, Donna Awatere Huata and husband Wi obtained more than $160,000 to defend fraud charges. A subsequent investigation cleared the former Act MP and her husband of incorrectly claiming legal aid. But the system is vulnerable to abuse by well-off litigants able to hide their income and assets and is viewed as a gravy train for lawyers.

The reality, lawyers argue, is that legal aid is a system avoiding collapse only through their goodwill.

Of 61,000 grants last year, nearly 42,000 were for criminal cases, 13,600 for family disputes and 4000 for mental health-related cases.

"When it was first brought in, legal aid was quite a generous system, but because the income limit [for criminal cases] has stayed the same for 37 years that's not the case anymore," says South Auckland barrister Catriona MacLennan.

The Supreme Court only last week reaffirmed the importance of proper legal representation, says MacLennan, in a judgment quashing the conviction of a Timaru man who defended himself on a charge of threatening to kill.

"Legal aid is reducing at a time the Supreme Court is saying it's more and more vital."

Legal aid overhaul

Key changes from March 1, 2007 under the Legal Services Amendment Act:

* Income thresholds raised, estimated 25,000 more cases a year will qualify.

* Eligibility based on gross income, not disposable income. Disposable assets also a factor.

* More emphasis on repaying legal aid. Amount recovered expected to rise from $10.8 million to $24.6 million a year.

* Interest penalties for falling behind on repayments.

* Bureaucracy to swell 40 per cent in staff number terms.

* Pay rates for lawyers to be reviewed.