Legal Aid’s shortcomings no secret

The Legal Aid system was instituted so there was justice for all, regardless of the colour of your skin or the contents of your wallet.

It spoke to the lofty tenets of the Bill of Rights, which encapsulates the fundamental freedoms of all New Zealanders.

Legal Aid was designed to ensure the right to a fair trial, the right to be presumed innocent and the right to a hearing in an independent and impartial court.

Yet the two-tier system it sought to avoid — the divide between rich and poor — has only been cemented.

It is dangerous, unjust and hopelessly out of date.

Legal Aid’s shortcomings have been no secret.

If you had quizzed any criminal lawyer over the past few years, they would tell you about the nightmare of paperwork and appalling remuneration for doing what can be complex work.

Howver, now there may be change brewing.

Law Society president Tania Epati last week came out swinging against Legal Aid in response to the Access to Justice Survey, canvassing the opinions of nearly 3000 lawyers around the country.

She called on the Government for immediate action.

"Aotearoa New Zealand’s legal aid system is collapsing," Ms Epati said.

She pointed to statistics that revealed more than 20,000 people had been turned away by Legal Aid lawyers in the past year.

And that was only going to get worse, she said.

A large portion of those surveyed said they planned to take on less Legal Aid work in the future and focus more on private clients.

So why is that?

The image of the greedy, greasy legal fat-cat in a pin-stripe suit will no doubt endure but the stereotype, as ever, misses the mark.

Most are involved in the profession because they want to help people, they believe in a defendant’s right to access competent legal counsel.

They simply want to be paid fairly for what they do.

Despite the housing boom and the rising cost of living, Legal Aid fees have not changed in more than a decade.

Ms Epati said it meant lawyers on Legal Aid cases were effectively working for free half the time.

While we can rely on the professional competency of lawyers to do right by their client, it is clear: those who can afford to choose and instruct their own lawyer are almost certain to get a better outcome.

The drawbacks in the system are undoubtedly exacerbating an already racist framework.

It is firmly established Maori are more likely to be charged, more likely to need Legal Aid, thus more likely to get an overworked and underpaid lawyer, and therefore less likely to receive a just outcome.

Inevitably, that leads to feelings of distrust in the entire system and authority generally, which results in the increased likelihood of them being back before the court and repeating the whole process.

There can be no mystery in why our rates of recidivism are so high.

Yes, it speaks to wider ingrained social inequity and the lack of effective rehabilitation for offenders, but Legal Aid is certainly part of the problem.

One of the many worrying issues with Legal Aid is that it does not fund junior counsel to assist their more experienced counterparts during jury trials.

The result is that senior lawyers have to pay them out of their own pocket or the young lawyers have to work for free.

While the consequences may not be apparent immediately, we will see the outcome decades down the track.

A generation of enthusiastic and ambitious lawyers are being robbed of the potential for valuable professional development because the system is too stingy to invest in their future.

And this is only in the criminal jurisdiction.

Talk to civil and family lawyers and they have a plethora of their own issues.

“Ordinary people are accessing a system but not accessing justice,” Ms Epati said.

Let’s hope an overhaul is imminent.

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