LSA And Law Society To Work Together?

It was heartening to hear the new head of the legal Services Agency, former High Court judge John Hansen, indicating he would talk to the Law Society about the deficiencies in the legal aid system.

The Bazley Report found that the relationship between the LSA and Law Society was dysfunctional, with neither side willing to take action to deal with problems. It appears that the two bodies may be going to sit down and sort out some of these problems.

Some of Bazley's more colourful comments (e.g. the comment that up to 80% of Manukau's legal aid lawyers may be "gaming" the system) have thrown the Law Society onto the defensive. Rather than dealing with the issues raised in the report, it finds itself having to defend the reputation of its Manukau members.

Today this email went out to members of the Law Society:

Dear fellow practitioners

You will have been concerned to read the media reports of the Legal Aid Review by Dame Margaret Bazley. Dame Margaret finds that there is a small but significant number of criminal legal aid lawyers who are incompetent or are "gaming the system". She also refers to anecdotal reports that some of these lawyers are demanding "top-up payments" from legal aid clients. Some of the lawyers practising in the Manukau District Court are singled out as a particular problem.

The NZLS takes the issues raised in the review very seriously. However, the statements are based on anecdotal evidence and we need factual information before we can deal with any problem lawyers through our complaints service. I ask members who are aware of any unacceptable practices to let the Law Society know, and provide us with details. We will be using other avenues to obtain this information as well, but we can take action only when we have evidence. There is, of course, an ethical obligation on all lawyers to make a confidential report to the Law Society where there are reasonable grounds to suspect another lawyer of misconduct or unsatisfactory conduct. This is covered (along with our duties in regard to privileged communications and confidential non-privileged information) in Chapter 2 of the Rules of Conduct and Client Care.

Dame Margaret's criticism of the quality of the service that some criminal legal aid lawyers are providing to their clients is a further cause for serious concern. Clearly, quality standards must be improved, and in September this year the NZLS Board adopted a competency assurance programme which will bring in mandatory continuing legal education, an expanded 3-day Flying Start programme including courses in ethics, advocacy skills and court etiquette. We also resolved that lawyers require three years' experience before being able to practise as barristers sole. These steps will help improve quality standards, but clearly each one of us needs to focus constantly on keeping up with the law in our areas of work. Quality of legal aid lawyers will also be ensured by a new accreditation system which was proposed by the Law Society and is recommended in the report.

We have been very concerned at the imbalance in the media reporting of the review. It has focused on the problems with a relatively small group of criminal legal aid lawyers, and the impression has been left that all legal aid lawyers, including family lawyers who are not criticised at all, are poor performers. This, of course, is totally wrong. The great majority of legal aid lawyers are people of integrity who provide quality services in difficult circumstances and for inadequate remuneration. It is grossly unfair for them to be tarred with the same brush.

Because of the nature of this media coverage, I released a further statement on Tuesday 1 December pointing out these things. It has received wide coverage. A link to this statement is provided at the end of this email.

I was particularly concerned at the statement in paragraph 330 of the report, where Dame Margaret says: "I have been told that up to 80% of the lawyers practising in the Manukau District Court could be gaming the system."

First, this statement is a clear breach of natural justice. It seriously damages the reputation of all Manukau lawyers and, indeed, the whole profession. The comment recorded is from an unnamed person. It is anecdotal hearsay evidence. It was not put to the Manukau lawyers for comment.

Second, I am quite sure it is incorrect. Yesterday, I went to the Manukau Court. I saw first hand the very difficult and stressful circumstances these lawyers work in. I spoke to about 20 legal aid lawyers, a senior Public Defence Service lawyer and a Crown Prosecutor. There was general outrage at this statement, which all agreed was a gross exaggeration. Having met those lawyers, I fully agree with them. However, we cannot discount the possibility that there may be a small number of Manukau lawyers who may be acting improperly to maximise legal aid payments. If there are, those lawyers must be identified and dealt with as I have noted above.

I have also given many media interviews on this issue and a link to my Morning Report interview this morning is also provided.

The Government will be acting quickly to implement the report and we will be working with it and Sir John Hansen, the new Chair of the Legal Services Agency, to ensure that the legal aid system is improved and provides access to justice for all those who are eligible. There will be major changes and these have been flagged for some time. Bulk funding will clearly be introduced and the Public Defence Service expanded. There is recognition in the report of the vital role of senior lawyers in the legal aid system, and of the fact that low rates of remuneration and problems with the Legal Services Agency have contributed to the current problems.

The Law Society has been given two years to resolve the quality and competence issues, and to deal with the alleged corrupt practices and gaming of the system by a few lawyers who bring the whole profession into disrepute. If we fail, we are under notice that the Government will step in and strip the profession of the regulatory role we have under the Lawyers and Conveyancers Act. That outcome would strike at the very heart of a strong and independent profession. It would damage our capacity to promote the proper administration of justice and to defend liberty.

These are very serious matters for all of us, whatever our fields of practice. It is crucial that we work together now to preserve and enhance our hard-earned reputation for honesty and integrity.

With kind regards

John Marshall QC

President

New Zealand Law Society

Attached links:

• John's 1 December media release

• Morning Report interview (this link may not work on all computers)

Let us hope that the more unhelpful and unsubstantiated claims in the Bazley Report don't end up distracting the main players from working to improve the system.