Lawyers describe the legal aid system in New Zealand as broken, with poor pay as a major disincentive. Photo / Michael Craig
Sasha Borissenko is a freelance journalist who has reported extensively on the legal industry.
OPINION
Following threats to walk off the job and years of advocacy, duty lawyers saw their first significant pay rise in
25 years last year.
Although hourly rates increased from $88 to $103 on weekdays, inflation would mean the original $88 would be $166.38 today. The 17 per cent bump was in fact, a kick to the guts.
The dire need for change was punctuated recently, with the release of the Legal Aid Services Commissioner’s independent review into the country’s Duty Lawyer Services.
The review, which combined interviews, a nationwide survey, document analysis and court visits, unsurprisingly revealed the system was fine but not sustainable.
Struggle street for some, volunteering for others
Now for the juice. While one survey respondent described duty lawyers as the “jewel in the crown of justice”, the nature of what was described as an “aging population” meant the future viability of the service was at risk, the review said.
In some courts, lawyers opted for the esteemed duty lawyer title solely as a means to give back to the community and ease into retirement. One court’s roster lacked 25 per cent of the capacity needed to represent defendants. On the whole, 50 per cent of supervisors said there were not enough duty lawyers available.
In practical terms, lawyers might be rostered on to duty shifts multiple times a week (as opposed to one to two shifts a fortnight), resulting in stress and burnout. And for rural courts, some lawyers need to travel long distances to fill the void.
“Not only are many trying to maintain a private caseload, which has pressures of its own, but they also act as duty lawyers in a stressful and potentially dangerous environment,” the review said.
For context, there were about 1000 approved duty lawyers in 2008, making up 10 per cent of the lawyer population. In 2022, although the number of lawyers generally increased by 60 per cent, there were just 970 duty lawyers throughout the country, making up just 6 per cent of the profession.
Remuneration was at the heart of the issue for 79 per cent of respondents, saying the blanket rates weren’t proportional to the role, nor did they account for the varying levels of skill or experience within the sector.
The nature of contracting work meant parking, travel, phone use, printing, insurance and practising certificate costs mightn’t be covered. Some even went so far as to say tradespeople were better paid.
To put it bluntly, 70 per cent of criminal lawyers who weren’t on the roster said the hourly rate wasn’t sufficient – even despite last year’s increase.
Barriers impacting quality, training, development
To become a duty solicitor, there are various hoops and hurdles, but mock trials and shadowing fellow contemporaries paled in comparison to learning “on the job”, the review highlighted. Eligibility training requirements also failed to include “soft-skill” development, such as empathy and remaining calm while representing distressed clients.
[As someone who has done medical school simulation patient acting in a past life, I can assure you those soft skills are necessary, nay, desperately needed.]
Cultural competency training was otherwise non-existent, and if duty lawyers have jumped through the hoops to qualify as duty lawyers, it seems the training, development and resources stopped there. The review found no processes to improve or monitor performance.
Speaking of quality, the review found courts lacked basic stationery, with some courts denying duty lawyers access to photocopying services, staff break rooms and staff toilets. What’s more, duty lawyers were expected to access the court via the public entrance and to go through security.
It seems duty lawyers are left to provide their own pens, use the library or suffer uncomfortably during pat-down screenings like the rest of us. While frolicking among the public may seem fickle to some, it adds insult to injury given the piss-poor hourly rates.
Worse still, some courts denied lawyers entry until public opening time, leaving them with no time to set up or prepare for their clients.
The barriers were easy to address and would help duty lawyers feel valued and prevent them from “becoming disgruntled and leaving the roster”, the review said.
Where to from here?
All hope isn’t lost as KPMG, on behalf of the Legal Aid Services Commissioner and the Ministry of Justice, provided a suite of recommendations. First up, the review called for a detailed remuneration review to determine appropriate hourly rates.
It also proposed restructuring the service to allow for junior and senior duty lawyer positions, reviewing the current eligibility process and criteria, implementing quality-assurance monitoring, oversight and reporting processes, improving court safety and establishing an ongoing training programme, guidelines, support mechanisms and a resources repository.
The Criminal Bar Association’s Annabel Cresswell and Adam Simperingham said it best in a letter addressed to Justice Minister Paul Goldsmith this year.
“A healthy criminal defence bar is vital to any democracy. Defence lawyers assist defendants who lack the resources the state can bring to bear in a prosecution. They also act as a check on the state, ensuring that unlawful or unjust actions by law enforcement or the courts are made known and corrected.”
And yet, these services are in a state of crisis, they said.
