Fishy business with civil legal aid
BY STEVEN ZINDEL, Senior Partner at Zindels
At her swearing-in in March, the Chief Justice indicated that: “there are few lawyers practising civil legal aid and fewer still in areas of need and the reasons for that problem are complex”.
In “Some criminal justice outcomes in 2018” in LawTalk 928, May 2019 at page 75 there was indicated to be only 2,326 open civil cases where there was a legally aided party (perhaps fewer than that if there were multiple legally aided parties). This is out of about 17,000 court cases disposed of annually, with many other civil matters in other jurisdictions. And these by 462 lead civil providers nationally at 13 June 2018 (only 35 of them acting on five or more cases in that year from 1 July 2017) – see “The parlous state of civil access to justice in New Zealand”, LawTalk 920, August 2018, page 54.
The absence of legal aid representation would lead to inefficient and poor quality self-representation, in many cases, and is a concern for everyone in the justice system. Kate Davenport QC, President of the New Zealand Bar Association, was quoted at page 67 of the May 2019 LawTalk issue, as offering a chocolate fish, or even a packet, to those who go back on the list as civil legal aid providers and, in addition, calling for more senior lawyers to “take on one or maybe two cases” pro bono each year (page 65).
Wholesale restructuring required
More encouragement than this is needed to do civil legal aid cases. Wholesale restructuring, including some modest legislative amendment, is required, if the government has the will. Hourly rates of $72-$159 are obviously not able to support the office backup that presentation of civil cases demands. The hours which are claimed by lawyers for their work are further trimmed because the providers’ views of how much time a case needs are second guessed by untrained legal aid clerks. Sometimes, the clerks have lawyer advice but then this is frequently from their in-house lawyers who may not have practised for a while and who have little knowledge of the dynamics of the client, the dispute and the other side.
Part of the problem is the estimate or amendment system, where the case is not fixed fee or where it starts out that way but you apply to take the off ramp from the fixed fees motorway. There is no ability to amend the grant if the bill is reasonable if there has not been a prior decision taken on the amount of the grant, frequently in the abstract, before the work is done. If you forget to apply for an amendment before the case is over, also, it is usually too late.
A tier of unnecessary bureaucracy
The amendment system just adds a tier of unnecessary bureaucracy, where those on opposing computer terminals fight paper tigers as to how much time a case will need. Even if a final bill has been rendered which is much less than the amendment anyway, the amendment will still be debated and the provider will need to justify his or her time by a breakdown of hours into various arbitrary categories such as “research” or “interlocutory work” or “drafting”.
A hearing gets close when you realise there is no fuel in the tank; then you have to submit an urgent amendment if there is such an overrun, box on and hope that it will be granted, sometimes experiencing disappointment after the event. The amendment system seems to be based on the consumer’s right to an estimate but it’s difficult to estimate litigation costs, with so many contingencies, and the arrangement is really with legal aid and the value of the legal work that has been done. A client whose fees are paid in the first instance by the taxpayer is realistically not going to say to a lawyer to hold off on anticipated extra work because they can’t afford to pay for it, even if there may be a repayment at the end.
Civil legal aid
Cases on civil legal aid tend to come to the office as urgent, with case management timetable orders to be met, but the client will have half the story, establishing financial eligibility for legal aid will take a while and by the time the picture has become clearer and you have even been ambitious enough to go on the court record, your certificate to legal aid as to prospects of success may not be accepted and legal aid will be refused or any interim grant withdrawn. Or the proper party may be seen to be an ineligible company or trust rather than an individual. Then, much or all of your time will not be paid and a private bill to the client will go unpaid. The effective hourly rate may be two-thirds of the figures above, bearing these factors in mind.
There are many time limits which may snare the unwary and make it difficult to practise well, such as the need to file the legal aid application in a completed fashion before the case is over, so that if financial eligibility information is delayed or piecemeal, such as the trust disclosure form awaiting attachments or employer information held up, then there will usually be no grant and no payment.
Legal aid clerks have performance standards to reply to correspondence in a certain timeframe but it is apparent that to meet those deadlines, incomplete letters are sent out and later more may be required before there may be a grant. These clerks insist on replies from us with quite tight time limits when we are also in court, meeting clients etc and if we don’t reply in time then legal aid is pulled and clients are sent a letter that makes the clients think the lawyer is unreliable. Again, for no or reduced payment.
Successful applicants for legal aid with property must complete a land charge authorisation and if that is not sent to the client, signed, title search done, legal description provided and sent back in sufficient time, then legal aid may also be withdrawn. Clients without email and scanners take extra time.
Along the way, the other side may challenge your client’s legal aid because they don’t like his or her general costs protection in section 45(2) of the Legal Services Act 2011 (the most important tool in the poor’s access to justice and not available for the clients of those acting pro bono) and that they can’t close down the case with an application for security for costs. Then you will have to justify prospects of success and conduct of the litigation in collateral correspondence. A tempting Calderbank offer may be floated by the other side and you will have to spend non-claimable time justifying why the offer was refused and with legal aid wishing to avoid a section 46 costs application against them.
Then, you need to bill within six months of doing the work for non-fixed fee activities or you miss out. If a legal aid email arrives, among your hundreds, that always has an innocuous subject line, but may contain the seeds of financial ruin for the practice, then you have only 20 working days to apply for a reconsideration or the decision is not able to be challenged. Reconsideration and legal aid appeal work is not paid for unless your client files a fresh application for aid for it, which seems to have a certain Sisyphean futility.
After the hearing
After the hearing is over, hopefully you have estimated time for the costs phase in the event of success because you can reduce your client’s repayment as well the costs to the taxpayer. A recent, useful case here is Curtis v Commonwealth of Australia  NZCA 126.
There will, in any case, be much repayment, charge and write off correspondence during and after the case which you are not paid for. For example, a client may move and legal aid may conscript you to find out where they have moved to, owing to their quaint habit of sending postal mail from time to time. Or a client’s $30 per week interim repayments may stop and you are asked to chase your client or legal aid will be withdrawn. Or the client may receive a pay rise and you will have to ensure that financial eligibility is preserved, with the financial thresholds practically obsolete but where various discretions exist.
Then, a long time after the judge has ruled, you will be caught up with the final repayment cycle, arranging for the withdrawal of any land charge or caveat and ensuring that legal aid is repaid everything it should be or it may come out of your own meagre receipts.
These formidable bureaucratic hurdles can easily induce a sense of ennui from which you may not be insulated, even by a school of chocolate fish. But there is also the general difficulty of acting against typically the big cheeses for the underdog, as when you come back from a day in court to find a welter of emails or hard copy documents on your desk, including well-researched and polished briefs or submissions from a well-resourced private party against your client.
The intelligent senior associate from a large firm may have the energy or specialisation to crush your general experience or inchoate sense that there has been an injustice somewhere. The client may be naïve and difficult to reason with or may grab at a small offer to feed the family and inevitably there is a document that your client did not mention, particularly if he or she has been dabbling in the light industrial business sector, signing such documents without proper appreciation or advice.
On those occasions, however, when your client’s narrative does see the light of day, it can be very satisfying. And that makes up for all that I have written above, particularly in Cinderella areas like ACC and employment where there is frequently not the level playing field that leads to the balanced scales of Justitia.
Crime & punishment
BY STEVEN ZINDEL, Senior Partner at Zindels
As a practising lawyer, an irony which I perceive daily is the prominence given to street crime while deeper unethical behaviour, often with far greater consequences for people, goes
unreported. The perpetrators are not held accountable.
Sad, lonely people are processed through our criminal justice system and ultimately many are imprisoned. Prisons are creaking at the seams. It costs the country more and more. The crowded colleges of crime produce more brutal and banal cycles of offending from their graduates, who are actually crying out to belong, while treatment programmes for those with health issues (including addictions) remain underfunded. Many of our prisoners would have been mental health patients in previous times. There are often unintended and harsh consequences of imprisoning decent people. Prisons should be a last resort, reserved for the violent or truly incorrigible. The number of prisoners should be kept low for their own protection and to aid their rehabilitation.
Also, many crimes are the result of overcharging or failing to use legitimate police discretion with convictions being recorded against people where none of the protagonists (e.g. in the domestic violence field) want things to go that far, provided that the behaviour is corrected. Many suspects cooperate fully with the police to explain the particular context for their behaviour and find the negative parts of their statements simply used against them on a remorseless prosecution treadmill, while the more experienced offenders stay staunch and are let off through absence of witnesses. What kind of example does this set?
Meanwhile, we, the public, read lurid details of nasty crimes in the newspapers and imagine that society is going to the pack. Something of a moral panic sets in. It’s easy news and it’s good for circulation. The drama of it all mirrors the entertainment value that crime has always provided.
Youngsters being left to themselves and our unhealthy binge culture undoubtedly have led to a number of derailments. But the criminals are also alive to hypocrisy and mixed messages. We emphasise material possessions and getting “out of it” to de-stress from it all. Life seems to be a competitive exercise, about making your pile at someone else’s expense. The behaviour of some fellow citizens makes weak minded others think that they too should make their own unsophisticated attempt to secure the good life.
I have in mind how individuals may amass wealth and empty houses without paying much in the way of tax through excess business deductions, paper-loss making vehicles and the improper use of companies and family trusts. In an uncertain world, trusts are favoured as a means of providing security for assets but they may bear little relation to the reality. For the 167,922 dwellings at 7 March 2006, disclosed in the last census to be owned by family trusts, for example, frequently the beneficiaries regard themselves as the owners and the independence of the trustees is doubtful.
Another area of unethical and damaging behaviour is that of relationship property. For originally laudable social policy objectives, the law has, since the 1970s, provided for generally equal sharing of relationship assets for marriages and, now, de facto couples. To counter that, there has been an explosion in the growth of family trusts and prenuptial agreements so that often on separation, even after many years together and children, one spouse (typically with the child-care responsibilities) will be left high and dry. That is not regarded as theft, like the public charge facing a shoplifter, but it ultimately has more potential to be ruinous of the social fabric.
As indicated, the cynical or the prepared will have their assets sheltered. The true romantic who pledges all his worldly goods and troth may lose half his assets after only three years. I would argue that it is better to provide for an incremental improvement in the non owning spouse’s position to the point where, after 10 years together or children, she obtains half of the property irrespective of any agreement. This still leaves the vexed problem of the family trust where assets are owned by third parties, the trustees. There should be greater trust busting powers so that substance may triumph over form. A trust could be legislatively rewritten for where do property rights end and improper exploitation begin?
Companies, also leave unsecured creditors out of pocket when the company folds, while the director continues to drive around in his trust owned European car. This promotes distrust at the system among honest suppliers and, again, where is the moral example? What is the difference between calculated structures to leave the unsecured out of pocket and theft? The intentions are not so immediate for the civil wrongdoer as for someone who makes off with somebody else’s cash from their wallet but the business person who repeatedly sets up structures knowing that in the event of failure it will be somebody else’s problem may arguably show a form of moral as well as legal bankruptcy. And with the new insolvency procedure, where is the example in allowing a person simply to write off $40,000 of debts? Even ordinary bankruptcy attracts little stigma. The public notices section advertising of bankruptcy has been replaced by a website listing.
Why do the Court pages in our newspapers report on all the “rats and mice” offending so thoroughly when bankruptcy stories may also have numerous out of pocket victims? These victims don’t receive reparation orders. Many of these bankrupts are themselves, it is true, susceptible to relentless credit advertising, a culture of paying on the “never, never” and their own weak natures, just as the criminals caught by the police are victims of currents swirling around them. Sometimes, they are the same people.
The law reports are full of examples of what is variously called “equitable fraud” or “unconscionability” where superior acumen, intelligence or economic advantage are used to dupe the less powerful. The playing field is far from level. We value the sanctity of contracts and economic independence but many in our society can’t cope with the individualistic model and they fall by the way-side. It is a perverse kind of social control that keeps these weak people in check while richer and more powerful people escape the moral chaos which their own actions have unleashed. The kind of behaviour committed by the clever is not characterised as crime, not even white collar crime, but there may be little distinguishing the essential behaviour. Why are such sharp practices tolerated and unreported? Is it too difficult to explain? Without a prison sentence and a simple story of intentional greed immediately acted upon, does a case have no impact?
Widen the critical lens further and there is an obvious need to remedy environmental degradation and international breaches of order through wars or improper diversion of resources (e.g. subsidies ruining local farming or the current bio-fuel debate). The fundamental crime is that we are not all getting together to help the world’s hungry and homeless or to make sufficient effort to limit our population and over industrialisation, so that we may survive on a sustainable planet. By comparison, the affairs of the criminal classes seem petty and overrepresented in our daily news.
Have we lost our way on domestic violence
BY STEVEN ZINDEL, Senior Partner at Zindels
The Women’s Refuge website www.womensrefuge.org.nz quotes bleak statistics that one-third of women experience psychological or physical abuse from their partners in their lifetime. This figure comes from “The New Zealand Economic Cost of Family Violence” by Suzanne Snively (1996). On average, 14 women, six men and 10 children are killed by a member of their family every year and the website also indicates that police are called to around 200 domestic violence situations per day.
84% of those arrested for domestic violence are men. In the year to 30 June 2010, there were 3867 domestic violence cases in the Family Court which each involved at least one child. Our OECD rankings in this area appear to be abysmally low. Police statistics record 25,121 “dwelling assaults” in 2012 compared to 14,696 in 1996 (a 70% increase while the population only increased 19% in that period; the figure had reached 27,100 or over in the years 2009-2010 before the police general policy of more informal action may have had some small effect in this area and not as much as the 22% reduction of people charged generally from 2009 to 2012.) . The annual cost of domestic violence, as an upper limit, based on Suzanne Snively’s work and in today’s dollars would be up to $8 billion per year. So, it is a serious problem and I do not wish to be an apologist for it.
But do we over measure the incidents of family violence? Does the state need to become involved in every case? Currently, there is close to a zero tolerance approach which leaves little room for discretion when it comes to arrest, charging, diversion from criminal responsibility, bail decisions, conviction and name suppression.
When section 59 of the Crimes Act was amended from 21 June 2007, so that the use of parental force for the purposes of correction or punishment was no longer justified, Parliament sought to reassure the public. One quotation from the now Hon. Chester Borrows MP (on the third reading of the Crimes (Substituted Section 59) Amendment Bill on 16 May 2007) was similar to many speeches on the topic: “Those parents who are worried that this legislation will criminalise lightly smacking a child can rest assured that Parliament’s intention is that this should not be the case, and if at some future time they find themselves on such a charge, they should advise counsel to research Hansard and cite these comments in their defence.”
In fact, it is my unscientific experience as a practitioner in the criminal and family areas that this is precisely what is happening and not just in relation to children but in relation to assaults on other family members. My knowledge is informed by the work of colleagues where I practise and in other towns as well as what I read in the law reports. Against that, police tell me that they already do work behind the scenes to try to keep some families, capable of change, out of court and that they have more sophisticated tools to assess the likelihood of repeat offending with those cases being focused on. It’s just that I don’t see that and perceive any such techniques to be inconsistent, with many of the cases I see being low-level in the extreme.
My feeling is that the courts are clogged with thousands of low-level family violence cases. Police and court resources are stretched as a result and the cases become the grist for the legal aid mill. The cases tend to drive some families apart and the result, in certain cases, may be that individuals’ futures are blighted by convictions which stay with them for years and which affect their careers or travel. The recent toughening up of name suppression in section 200 of the Criminal Procedure Act 2011, from 5 March 2012, has made the whole process more public. While there is automatic suppression of the identity of victims in specified sexual cases and where there are child complainants, otherwise the victim’s name may be published unless inter alia, the court is satisfied that publication would be likely to cause undue hardship to the victim.
I give five recent anonymous case studies in which I have been involved, over the last 12 months, to show what I believe is being sacrificed on the altar of zero tolerance of domestic violence:
a) A mother with no previous criminal convictions is convicted of assaulting her child, contrary to section 194(a) of the Crimes Act. She is a teacher and is censured by the Teacher’s Council. The crime was having her partner apply a leather belt to the backside of her son who had engaged in sexually abusive behaviour to a younger family member. The boy had ADHD with Asperger’s Syndrome. This was until the Court of Appeal entered a discharge without conviction on 18 May 2012 in H (CA 680/2011) v The Queen  NZCA 198.
The partner had, ironically, been discharged at the first appeal stage in the High Court while the mother was not because she had volunteered that she had previously applied the wooden spoon to the boy’s backside on occasion. Otherwise, the distinguishing features were in the mother’s favour.
b) Another mother also applied an unrelated wooden spoon to a young child, one of a number of her young children whom she was endeavouring to manage. The mother here, too, had no previous convictions. She was forced to move to a family member’s address for a while as part of her bail conditions of 24/7 supervision to prevent repetition. She was a member of a church and other church members were not seen as suitable trackers as they might too have been infected by the same “spare the rod” mentality.
Later, a friend of the mother could move into the family home and the family could be reunited but both trackers had to give up work for the duration and where the mother felt duty bound to repay them for their lost wages. This young family lost its ability to put down a deposit on a home, owing to the ongoing costs of the case. There were care and protection proceedings. There was another lawyer involved. All this, despite there having been no prior notification for the child or, indeed, for any other children of the family. A lengthy restorative justice process (spanning five months) finally led to a conviction and discharge for a charge of assault on a child, again under section 194(a) of the Crimes Act.
c) This case involved an older man, also church-going and with no previous convictions, who had been married for 35 years. The family was split for close to three months owing to bail conditions imposed on him. Low-level domestic violence was involved both in relation to his wife and to two of his children, towards whom he threw an object.
A lengthy restorative justice process was also involved and the charges of male assaults female and assault on a child x 2 were ultimately resolved by a sentence of come up if called upon within 12 months.
d) Another case was a brother’s punch to the arm of his brother in what could be said to be circumstances of self-defence after that other brother gave the defendant a number of punches; the other brother was not charged. It was decided to plead guilty to reduce the agony.
Diversion was not suitable but a restorative justice process was again approved and the case did not need to proceed any further through the criminal system. Such a filial punch may have been routine in times gone by, and not meriting a prosecution in the first place, but, instead, there was a nine month delay while the various restorative justice steps were pursued and with a change of address and town. Police, court and lawyer time was all spent to achieve what could have been dealt with informally.
e) A case of unintended consequences is my final example, where the de facto partner called the police on a man who had been for many years, legally in the country, but who had let his permit slip for a number of reasons. He was performing an important step-father role and the cause of the argument which led to the domestic violence, at a low-level, was an intense personal issue. A break between the couple would have been good but once the police intervened, they were duty bound to pull up the man’s background on their computer and his immigration lack of status was revealed. Being an overstayer, he was deported from the country and the family no longer has the supporting male figure.
These cases share common features. Small flare-ups that may be seen to be private, family affairs but which end up attracting the formality, publicity and severity of the criminal law; and with a host of unwelcome consequences.
Discretions by the police, whether to charge or not, seem to be rarely exercised. Background provocation of the worst verbal kind is ignored. The nature of the charges seems frequently, to be the most grave available eg assault on a child or assault with a weapon or, when a woman is involved as a victim, male assaults female under section 194(b) with a two year imprisonment maximum rather than section 196 Crimes Act common assault (with a one year imprisonment maximum) or even section 9 of the Summary Offences Act 1981 (with a maximum term of six months imprisonment or a fine not exceeding $4,000).
As the Court of Appeal noted in Nuku v The Queen  NZCA 584 at , there is a “good deal of scope for prosecutorial discretion and the possibility of overcharging” with the various assault charges that are on the menu in the Crimes Act and there is little to control such prosecutorial discretion. Frequently, both parties are charged in a domestic assault situation such as where there is a reciprocal pushing or slapping and then there are issues of self-defence which tie up the courts with defended hearings.
A recent example is Crann v R  NZCA 48 where the Judge successfully but improperly pressured the Public Defender and her client to abandon a jury trial for male assaults female as the allegation (accused elbowing his partner in the back in bed because she was coughing) was too minor.
The police manual refers to best practice being that amendments and withdrawals of family violence charges are to be discussed with the district family violence coordinator and that extra level of supervision may make it more difficult for there to be flexibility from officers in charge or from prosecutors. Often, even if the complainant wishes the charge withdrawn and there is the involvement of the victim advisor to ensure that the victim was not unduly pressured, such a withdrawal will not be allowed. This approach saw its high point in, admittedly, the serious family violence case of The Queen v EF (CA 339/2012)  NZCA 402 where an out of court statement by the complainant was admissible even though repeatedly disavowed by the witness, including in the witness box at the trial, with the definition of hearsay statement in section 4(1) of the Evidence Act 2006 not making such an out of court statement hearsay because the complainant was available for cross examination.
Before that, the police manual states that if there is sufficient evidence (eg a complaint of assault), offenders who are thought to be responsible for family violence related offences (ie literally) should (except in exceptional circumstances) be arrested. As for whether bail is consented or opposed, the police manual refers not only to section 8 of the Bail Act but also the need to ensure the victim and their family’s safety and for any consideration of any safety plan that may be in place. In some cases, this is overegging the pudding.
As a practitioner, I frequently encounter situations where the victim appears to be further re-victimised by the court process and where there is talk of warrants for the arrest of the complainant if she does not turn up or where she is treated as a hostile witness by the prosecution if she tries to minimise what went on. The state claims to know what is best in people’s private lives. It may be that complainants are at times unfairly pressured to withdraw their evidence and that this practice should be controlled but for the more minor cases, at least, the putative victim should have some say in the process, in keeping with the spirit, if not the letter, of the Victims’ Rights Act 2002 which legislation is actually about information and consultation rather than about giving effective power to the victim. The Crown prosecution guidelines refer to the victim’s attitude as an aspect of the public interest on whether to prosecute but evidential sufficiency is the first criterion and if there is an out of court statement, taken in the heat of the moment, which is admissible in the event of any U-turn, that aspect will nearly always be met.
Then there is the high cost, delay and destruction of intimate family situations being placed on a criminal, adversarial footing. Ordinary people are treated like, well, criminals and they encounter legal and other costs. Victims, as stated, feel slighted by the process when they are required to have the prosecution perpetuated, even when the defendant is taking proper steps. In some cases, they will have to live apart from defendants, despite their views being communicated to the victim advisor, because police or courts will claim to know more about where their interests lie.
No one wants a repetition of the Bristol Killings (see the 1994 Report of the Enquiry into the Family Court Proceedings involving Christine and Alan Bristol) or the Christie Marceau killing on bail (for the sentencing decision, see R v Chand  NZHC 2746) but police prosecutors and the courts have a tendency to be gun-shy about steering cases away from charges or managing the risk of alleged offenders while on bail. Usually, there is a cordon sanitaire for days or weeks while the defendant is in custody (losing his job or income), crashes at a friend’s house or risks seeing their partner on the sly.
A logical place to intervene would be the police diversion stage with a condition for diversion being a stopping violence programme and some kind of monitoring mechanism to ensure it is completed satisfactorily but the police diversion criteria refer, in fact, to diversion for family violence being “rare” and where prior authorisation must be obtained from the police district prosecution manager (which, again, adds a further layer and inflexibility to the process). The family violence coordinator must jointly authorise such a diversion decision with the police district prosecution manager which entrenches the inflexibility.
What is true of low-level cases of domestic violence may be said to be true, on a broader scale, for criminal offences generally. The act may literally fit the label of the offence but the criminal process is an overly large sledgehammer at times. If the marital assault is followed by counselling or the exuberant property damage caused while drinking is repaired, then why do we go that extra step of giving defendants public criminal convictions which hinder their rehabilitation to society? Where are the public interest considerations referred to by Fisher J in Police v Wills (1989) 4 CRNZ 692, 696-697? Why is name suppression not mandatory for the minor cases? This, at a time when, as never before, we trumpet privacy as a human right and the media pursue privacy breaches in other areas?
There should, in my view, also be an open-ended discretion for our judges to dismiss cases as not warranting the intervention of the criminal law – a liberal expansion of lex de minimis non curat - which power may be used as an incentive for a defendant to undertake a suitable programme, pay reparation or perform voluntary work which will allow for the necessary remedial work or penance to be performed off the criminal law balance sheet. This touchstone of behaviour not warranting the intervention of the criminal law has been referred to in the context of disorderly behaviour, at least, by Tipping and McGrath JJ. in Brooker v Police  NZSC 30 at  and  respectively.
Instead, we toss all our supposed miscreants into the same cauldron and apply to them the same high heat. Ultimately, the plethora of criminal charges for minor offences in the domestic violence area and elsewhere debases the criminal coinage. It contributes to blockages in the system, with, as indicated, many family violence cases being defended on the basis of self-defence or in the hope that a complainant will not follow through with giving evidence in court. It leads to the public, as well as the international community, forming the view that our society is more violent than it really is and that latter consideration may give a clue as to what is going on.
The collection of statistics of violence could be said to offer its own reward for those who benefit from the resources which then flow and with assaults being treated the same whether they originate from a gangland brawl or over a cross word while preparing dinner in the kitchen. The reality and the need for social control is very different for the two types of cases. It is in society’s wider interests that the criminal law should not be involved in isolated family disruptions when the perpetrator is taking steps to change, unless, of course, the violence is repeated or significant.
Red tape wrapped around legal aid
BY STEVEN ZINDEL, Senior Partner at Zindels
Eligibility for criminal cases tends to be straightforward. Perhaps the Ministry of Justice expects the financial disclosure from alleged criminals to be inherently trustworthy.
For family/civil cases, on the other hand, we advocates of truth and justice must run around, unpaid, to obtain details of our clients’ ad hoc part time earnings or benefits. Legal aid forms confer authority on the Ministry to obtain this information but government data matching only goes so far and the task is outsourced to the lawyers instead.
Like a ticking clock you then need to submit the legal aid application with this eligibility information before the case is over, or fickle instructions are withdrawn; or you don’t get paid. If there are businesses, companies or trusts, you can then guarantee that a legal aid grant will lag a long time behind any court deadlines, as those assets are pored over.
If the applicant is fortunate enough to own a property, then there will be letters from the Ministry chasing the applicant and being copied to the lawyer, for authority to be given for a caveat/land charge. The details and explanation surrounding this must also be dealt with by the lawyer, unpaid. This will be the beginning of a blizzard of email correspondence from legal aid, generally, hogging your inbox. These emails along the legal aid journey tend to be opaque and cryptic. Pre-packaged template paragraphs can make the eyes glaze over. Time periods to respond make no allowance for the pressures of practice.
Interim repayments are then set by the Ministry towards some fantastic figure called the “prescribed repayment amount” which is actually the very maximum the aided person would ever have to pay, based on their financials. Clients wrongly think this is the amount that the lawyer is going to charge. This has to be explained laboriously, as well.
When interim repayment amounts are defaulted upon, then the lawyer is caught up, unpaid, in the race to chase these along. There is talk of withdrawing aid which is unsettling, when court deadlines are impinging. After a case is over, costs, the amount of the repayment and any write-off work extend well into the afterlife of the case, again unpaid for the lawyer.
The fiendish complexity of the rules is difficult enough for lawyers. The numerous highways, byways and discretions involved in legal aid need to be explained, every step of the way, by the lawyer to an uncomprehending and sometimes emotionally labile layperson, who is naturally more concerned about the merits and urgency of his or her case than the circumstances in which interest may be charged on a legal aid debt (if one is raised).
The new fixed fee framework makes invoicing of simple, lock step tasks easy but heaven help you if you try to take the off ramp from the fixed fee motorway. Considerable time and forward thought is required to justify why a case is special enough not to be on the prix fixe menu. When invoicing special fees, they then need to be billed on a separate invoice. This can be particularly tiring for family cases which involve overlapping categories of work and where there already needs to be separate invoices for each activity.
The six monthly billing requirements for non-fixed fees lead to time being inadvertently lost when you are busy or if the fixed fee case becomes non-fixed fee, when the six monthly rule reasserts itself. You can have the perverse situation of the case being accepted as special but not being able to bill for it.
If there is a request for a special fee, that must be on an amendment application which needs to be filed before the case is over or the special fee will not be allowed. Amendments, clumsily, are supposed to be pre-discussed with the client before they are even applied for, despite the client being advised by the Ministry afterwards.
Typically, the extra work that is required for justifying a special fee will only loom large just before a hearing and you will have to spend precious time in your trial preparation making sure that the legal aid aspect is under control.
Staff at the Ministry make difficult decisions about whether a case is special enough to merit a special fee. Factors identified for special cases like “vulnerable clients” or “communication difficulties” may often be legitimately asserted and then the Ministry will require more detail about why the case is truly like this. The sophistry and hair-splitting about such issues may take weeks and may, again, extend well past the life of the case. After all the work has been done, the lawyer will often be told that a smaller amount than invoiced may be claimed.
The only recourse then is to go for reconsideration or review but the Legal Aid Tribunal requires authority from the client before any review may be taken and conflict is set up because the client will not wish to authorise their lawyer being paid more if that may increase their repayment level.
For civil cases, there is an extensive “prospects of success” layer as well, with the work for this sometimes all being wasted when the necessary analysis of the case is done by the lawyer and then legal aid is refused. There will also be an obligation to notify the court and the other side of legal aid which obligation can be neglected in the most well-run practices. Again, that is something which the Ministry should be able to do. It only needs to set up a computer programme to notify itself.
Apart from that, there is the obligation of lawyers to notify legal aid of any change in circumstances of their client. You might pick up something in a client’s or the other side’s affidavit, for example, which means that you need separately to write to the Ministry once more. Again, this would be unpaid.
The funding will not be adequate for most cases where the lawyer is actually trying hard. Where the client is low maintenance or has not got much of a chance, you can wing it, to an extent, in the court, professional pride aside. But even then, the time consuming requirements of case management in all of our courts mean that you are still highly unlikely to be able to escape from writing off time.
It is appreciated that new fashions in billing speak more of value billing rather than time-based systems but for legal aid, there is no ability to negotiate over a suitable fixed fee. The amount is always too low, for nearly all of the tasks, if you are conscientious. In criminal, there’s admittedly the odd windfall or unearned reward that is meant to make up for the rest but really doesn’t. To survive, you need to ask for special fees or some undertake activities that they would not otherwise do to try to pick up individual fixed fees, as compliance with label trumps quality. Far from encouraging efficiency, fixed fees lead to cherry picking, superficial over-lawyering and a reluctance to delve into the necessary detail in the complex cases.
For criminal cases, there are inefficiencies and quality issues with the rotational assignment system. It seems strange that lawyers who have developed a rapport with their clients may not have the clients back again. It is usually easier to act for a client the second time around and there is less need to win over the client’s trust again.
Also, costly mistakes may be made without the information advantage brought by a deeper understanding of a client and/or his or her supports. Conflicts of interest lead to random assignments having to be declined, on occasion, with consequent delay, even as the CPA conveyor belt rumbles on. Activities that are delayed such as not filing CMM a week before the CRH, when nobody reads them then anyway, also lead to lawyers not being paid.
There may be ongoing Family Court proceedings as well as criminal and there could be two different lawyers involved in those processes which can hardly be said to be efficient or high quality in keeping with the purpose statement in the legislation. It is also anti-competitive to say that a criminal defendant, sometimes with a repayment obligation, may not choose his or her own lawyer.
The overall impression, regrettably, is that the legal aid system has become standardised and commoditised, with quality being squeezed out of it. The remaining lawyers who are doing their level best to serve their clients find it an unforgiving environment and there looks to be trouble ahead with an unsustainable turnover of younger practitioners. I look back nostalgically to the simple days of time based systems, regular peer review and much less money and time wasted on administration.