In defence of defence counsel

Defence lawyers, particularly those who accept legal aid assignments, have had a lot of bad press lately, according to Criminal Bar Association president Adriana Pinnock.

Legal aid payments

The repeated accusations of excessive income earned from legal aid and of incompetence have “unjustly tainted us all,” she says.

“While public scrutiny of the expenditure of taxpayer dollars is justified, unjustified assumptions based solely on the figures have unfairly implied dishonesty.

“It is not valid to simply divide the working hours in a year by the sum received and extrapolate from that, that the fees charged were excessive, for the following reasons:

  • The annual figure listed on the Legal Services Agency (LSA) website as having been paid to a particular lawyer is not the income of that lawyer alone.It includes fees earned by other lawyers, sometimes by a team of lawyers.
  • The amount paid to a particular lawyer also includes all disbursements. Experts bill the lawyer who in turn invoices the LSA.
  • The figures cited as annual income often include work carried out over several years. Some lawyers only invoice at the conclusion of a case. It does not follow that the income earned in a particular year is the same or similar to the amount earned in other years.
  • Senior lawyers receive larger amounts of legal aid than junior lawyers who handle more simple cases.Criminal cases are categorised according to their seriousness determined by the maximum available penalty. Legal aid lawyers are paid according to their level of experience. Senior lawyers do the longer, more complex and more expensive trials.

“Checks and balances are built into the system. A standard maximum preparation time is stipulated for each step in a case. The LSA will only pay a lawyer for any time spent in excess of that standard if an estimate has been approved in advance.

“A satisfactory explanation is required in order to obtain approval. In some cases and appeals only a flat fee can be charged.

“The agency contracts with each provider of legal services. It can and regularly does query invoices. It requests explanations for charges that appear to be excessive and it has the power to audit all providers to ensure that they are charging correctly. Ultimately, it can terminate the contract of any lawyer whose performance it considers to be inadequate.

“At least one of the lawyers named recently by the press had been audited several times without any overpayment having been identified.

“Other lawyers were named simply because they had received large amounts of legal aid. No mention was made of the fact that the fees of several other lawyers were included in those amounts. Several lawyers were reported because they are under investigation. Like every other citizen, the named lawyers have a right to the presumption of innocence.

Competence

“Much, too, has been made of the alleged incompetence of ‘car-boot lawyers’ who practise in our criminal courts. How has this situation come about and who is responsible for it?

“Legal aid has long been the training ground of recent graduates. Firms that no longer handle criminal cases used to regard them as a useful way to provide young lawyers with exposure to the courts. The wholesale opting out of legal aid work by those firms in favour of more lucrative work, coupled with a glut of lawyers, have for some years deprived young graduates of that traditional training ground.

“Positions in chambers for junior lawyers also are increasingly hard to get. The LSA is reluctant to approve second counsel except for very complex or serious trials. The recent changes in legal aid assignments as well as the establishment and extension of the Public Defence Service will further reduce the opportunities available to our young colleagues for gaining experience by working with others.

“Our profession has lacked a compulsory, formal and structured post-graduate training programme for barristers.

“The need for a formal course was discussed at a law conference in Dunedin in 1996, where two visiting barristers from Victoria spoke of the course available there. Despite that need having been identified at least 15 years ago, no formal training for barristers has been established by our law schools or our professional organisations the New Zealand Law Society or New Zealand Bar Association, except for the excellent but only week-long and voluntary Litigation Skills Course.

“The blame does not lie entirely with the lawyers who have reduced their overheads to a minimum in order to be able to handle cases on legal aid. It is unfair that they should attract public derision as ‘car boot lawyers’.

“Many of them struggle financially to survive on hourly rates that most of you would consider inadequate. They do difficult, sometimes unpleasant work for the flotsam and jetsam of society and contend face-to-face with individuals some of whom have psychological problems, addictions or personality disorders. They battle in a grueling adversarial system where they pit themselves and their reputations in a public forum against the State, their colleagues and at times their clients too.

“Importantly, they not only defend persons who are found guilty, but also represent the innocent who are wrongly charged.

“Yes, some criminal legal aid lawyers have been dishonest and were justly censored. Dishonesty, though, is not the sole preserve of lawyers who work in our criminal courts. A spate of defalcations some years ago was due to the activities of our civil colleagues.

“Dishonest or incompetent lawyers need to be identified and swiftly dealt with in order for the profession to have any credibility and to regain public confidence. The criminal bar supports measures to achieve that.

“The profession as a whole should accept responsibility for those individuals derided as car boot lawyers and perceived as lacking in basic skills. Those colleagues need support and tuition.

“It is for our law schools, the New Zealand Law Society and the New Zealand Bar Association to rise to the challenge and provide the necessary training. In the meantime, the hard working, honest practitioners of criminal law who do their best for their clients in a hostile environment deserve your support,” Adrianna Pinnock says.

This article was first published in LawTalk 766, 25 February 2011.