The Red Tape Wrapped Around Legal Aid

By Steven Zindel, Senior Partner

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submit the legal aid application with this eligibility information before the case is over, or fickle instructions are withdrawn; or you don’t get paid.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.