Choice of Counsel

Reasons why there should be choice of counsel for criminal legal aid.

1.    Section 3 of the Legal Services Act 2011 refers to the promotion of access to justice and delivery of legal services in the most effective and efficient manner. This is similar to section 3 and section 92(a) of the Legal Services Act 2000.

2.    When grant letters arrive in respect of strangers, lawyers often receive inaccurate information as to the type of case, the next hearing date and the client’s contact details. Often that means that the lawyer does not have the opportunity to meet the client before the next court appearance and so cannot do essential preliminary work such as name suppression, A & D and RJ.

3.    When a grant arrives, there is no recognition of fixture clashes nor any conflicts which the provider may face. If a client had come to the lawyer previously, the lawyer would have had a chance to recognise any problem and could refuse to take the case. Now, there would have to be a cumbersome reassignment.

4.    Police will usually have given disclosure to the defendant in advance before counsel is randomly assigned and will be reluctant to provide disclosure a second time if the defendant has lost his or her copy.

5.    When a client is new, it takes more time to understand his or her personal circumstances and their family situation.

6.    Such clients may take a while to warm to the lawyer who is assigned to them and they have misgivings that a particular lawyer has not been assigned instead or that a lawyer who has previously acted may not act for them again – all of this takes a while to break down and for the new lawyer to earn the client’s trust.

7.    With the breakdown in the rapport between lawyer and client, there may be a greater chance of incompatibility, reassignment and appeals/complaints. The bonds between members of the private bar and clients are being watered down and dumbed down so that criminal counsel are not able to offer much more than public defender.

8.    With random assignments, there is no ability to match up specialisations eg a particular lawyer in a town may be good at search cases and would have been referred search work but now all lawyers may receive an equal number of such cases and with no recognition of such specialisations.

9.    The work is randomly assigned and rationed out to good and bad, specialists and dabblers and senior lawyers may have only one or two cases in a busy criminal list which cannot be efficient nor effective.

10.    The reference in the Bazley report to delays caused by providers becoming over committed may be more a symptom of trial work; it is not such an issue for the largely guilty plea PC1 and 2 work which is involved here.

11.    Sometimes, there is separate or add-on work required which is not covered by the grant and a lawyer who is randomly assigned may not be in a position to perform that work.

12.    It is a poor use of senior talent for cases simply to be rationed out, irrespective of complexity and you will see senior lawyers drumming their fingers over a breach of community work charge while junior lawyers may have a particularly complicated case which may be beyond them; there is no attempt to match up complex cases with more experienced lawyers within the wide PC 1 and PC 2 categories.

13.    As part of that, there are some quite serious matters within PC 1 and PC 2 which will be handled by quite junior lawyers.

14.    It doesn’t cost any more if a lawyer from an approved list works on legal aid rates for the client; it is not like the client is asking for a particular lawyer at private rates.  

15.    With duty solicitors no longer getting the grants, this will reduce the attractiveness of being duty solicitor and hence retention.

16.    PC 1 and PC 2 categories are too wide and senior lawyers feel constrained to remain on those lists because of the PC 2 jury work when the PC 1 list work should be (generally) confined to the more junior counsel – it is appreciated that these categories are going to be changed with the criminal simplification project.

17.    There is no incentive for lawyers to do a particularly good job if there is no prospect of repeat business from the client.

18.    The level spread of cases actually encourages mediocrity because a serviceable job is enough and then the client is on his or her way.

19.    Such rationing appears to be quite anti-competitive ie good lawyers receive no more grants than bad lawyers if they stay on the criminal legal aid scheme.

20.    Criminals have repayment obligations these days, often, and the presumption of counsel for choice for private payers referred to by Ellis J at [64] and [116] in Afakaski & Another v Registrar of Manukau District Court and LSA (Auckland Registry, CIV 2010-404-8017, 27 May 2011) should be available to the criminally legally aided as well.

21.    Overall, all of the above arguments support random or rotational legal aid assignments being contrary to the promotion of access to justice and not being about efficiency and effectiveness and so the scheme could well be argued to be ultra vires the Act.

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