The Criminal Bar Association has failed in its bid to stop the roll-out of fixed fees, for the time being, in an interim decision of MacKenzie J of 12 March.

In fairness, the decision says nothing about the merits of the action and  focuses on the ability of the Ministry of Justice to rewind its proposals in the event that the CBA (of which the writer is a member and deponent of an affidavit in the case) prevails in the substantive hearing set for Wellington in April.

Can one size really fit all?

The one size fits all within a band approach has obvious attractions to a decision maker which relies heavily on non-legally trained staff to make decisions.

However ...

On the other hand, assessing cases as similar because they have similar maximum penalties is fraught with risk when the maximum penalties are ancient and bear little correlation to the intrinsic seriousness of a case nor, indeed, to the amount of work required.

Emotional cases such as those involving violence within relationships will usually have time-consuming detail while other cases with higher penalties, like burglary, will often be more clinical and hinge on one issue such as identification.

And then there are the personalities and disabilities of the defendants themselves which will affect the work on a case considerably. The Ministry refers to allowing 5% of general cases to escape the fiscal straitjacket and there are going to be many arguments as to what those cases should be with alleged criminals not being an easy catchment area to begin with.

Ministry says savings will be 10%. CBA says it will cost more than it saves.

The Ministry wishes to make 10% savings but the CBA has indicated that the proposed cuts will be larger than this.

Effects of rotation

A further issue, which appears not to have been allowed for, is the greater time spent by lawyers under the November 2010 “rotational” (from the Ministry’s point of view) or “random” ( from the point of view of the client) assignment system that will not be remunerated, over and above the cuts. Lawyers and their clients have built up relationships of a kind and with counsel of choice there was a level of confidence that the lawyer whom the client instructed would be suitable. Referrals could be made to a lawyer who was skilled in a particular area such as search and seizure. Now, mistrust on the part of defendants towards the system and lawyers has to be broken down each time.

Increasing time delays

There are also time-consuming delays because the process is no longer client driven.  Now the client  can’t see a lawyer who fills in the legal aid form with him/her and get the 21 day disclosure from the prosecution directly.

A duty lawyer will typically fill in a form, some distance along, for a defendant and there will then be court delays and loss of disclosure, when the latter is given to the client. The grant letter will arrive at a lawyer’s office with no time and sometimes no date of appearance for the case and frequently with deficient contact details. The lawyer in town who knows everything about a particular “frequent flyer” will not be involved in the information sharing and there will be no allowance for who is acting in parallel proceedings such as in the Family Court or Youth Court. The hearing may involve a fixture clash or there may even be a conflict in acting, which will bring about further delay.

Lawyers wear the cost & consumers lose

All of this costs more in time and money which the lawyers end up wearing, for no apparent advantage apart from allowing new entrants in the Public Defender’s offices to begin their practices. Those who wish to specialise or provide a good service may not attract repeat business and the dabblers among the legal profession receive the new business but end up stuck in lists claiming waiting time in court. There was concern that a few high profile criminal barristers were engaging in “bad boy” behaviour to increase their client numbers but such a concern appears to be more apparent than real.

System set up to fail

Now there is arguably a worse evil for consumers of the courts, put up with the lawyer you are given and no matter that there is little rapport or past knowledge of your life, just hope that you will receive a quality service. It’s a system that, regrettably, is set up to fail when the extra time that will be involved for such “coming up to speed” is not remunerated and where the particular lawyer’s altruism will only go so far.

About Steven Zindel

Steven Zindel is a contributing author to the Thomson Reuters Legal Aid Handbook  and to Brookers Legal Services available online and in looseleaf.

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In this free Legal Aid Webinar, Steven outlines the changes brought about by The Legal Service Act 2011  which came into force  1^st of July 2011.   According to him,  it heralded “more technicalities than ever”.