Jock Anderson 's Opinion

A look behind the scenes of the legal profession

Jock Anderson's Caseload: Time for lawyers to stop whining over legal aid

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Some lawyers have made millions almost exclusively from legal aid, says Jock Anderson.
Some lawyers have made millions almost exclusively from legal aid, says Jock Anderson.

A Christchurch newspaper claims to be investigating "the impact of legal aid cuts on the integrity of the justice system."

At first glance it appears to be another mis-directed campaign for more taxpayer-funded legal aid to be dished out to all and sundry.

Let's not forget that former Labour justice minister Phil Goff's tainted legacy was to hugely increase by hundreds of thousands the number of folk eligible for legal aid, a move which gouged many millions of dollars more from the already-strained public sporran.

As the brakes go on this fiscal profligacy, academics and legal hand-wringers continue to whine about a so-called "justice gap" created by cuts to legal aid.

Well, here's an undeniable truth about legal aid and those who prosper from it.

According to CaseLoad's lifelong research, for example, the vast majority of those who appear in criminal courts charged with breaking the law are in fact guilty as charged.

If they had any decency or remorse they would admit their guilt and take their punishment promptly. Most have no need for lawyers, either publicly or privately paid.

Judges are perfectly capable of ensuring such folk receive justice without disadvantage.

But no.

Too often they are encouraged by a coterie of self-serving lawyers to disguise their obvious guilt and futilely defend charges which at the end of the day in most cases result in guilty verdicts anyway.

The same applies in the Family court, where there is a view the provision of bottomless legal aid simply encourages and fuels continued conflict and endless argument.

The legal aid gravy train has been out of control for years, rising every year to new dizzy heights.

Some lawyers have made millions almost exclusively from legal aid.

Steps have recently been taken to cut it back. The legal aid bill dropped from $157 million in 2010 to $102 million this year.

Not before time.

Closer examination still needs to be given to eligibility to ensure further cuts are made.

Folk who genuinely cannot afford to defend court action or pay for private representation when it is warranted, have a generous State to thank for helping pay for a lawyer.

But the worst offenders riding the legal aid gravy train are lawyers themselves - many of whom style themselves as "legal aid" lawyers who believe they are entitled to suck a living from the taxpayer.

They are not.

When legal aid was first introduced, lawyers were expected to give selflessly of some of their time to help those who genuinely could not afford their fees.

Many lawyers saw this as a professional duty, rose to the occasion with little complaint and continue to do so.

But somewhere along the road to riches much of that expectation went out the window.

An increasing number of lawyers it seems now actively and skilfully harvest legal aid opportunities in ACC claims, Treaty of Waitangi wrangles, Family court and tenancy disputes and any other ripe nook or cranny they can winkle public cash from.

Instead of moaning about some airy-fairy "justice gap," lawyers who have enriched themselves on legal aid need to remember that their first duty is not to the client but to the court.

Which is why they need to look at those who are clearly guilty and advise them to plead guilty.

That would be a responsible and dutiful place to start.

[Meanwhile, New Zealand Law Society committees are mulling over a Justice Ministry proposal to save even more money by setting fixed legal aid fees for employment proceedings.]


The crime doesn't always justify the punishment

There is an unfashionable view that name suppression is OK if it means well-known or wealthy folk don't suffer outside court any undue additional punishment not generally visited on ordinary mortals.

The populist view is that well-known folk deserve even harsher punishment and wider public vilification just because they are famous, wealthy or - as evidenced in the recent fuss over one senior citizen's transgression - a Household Name.

Originally charged in 2011 with indecent assault, but earlier this year pleading guilty in Dunedin Court to a lesser charge of performing an indecent act intended to insult or offend a woman, Household Name was discharged without conviction, granted permanent name suppression and ordered to pay the woman he offended $6,500.

Household Name says everyone in his home town knew it was him, he says he got fired from his job, lost his livelihood and was unfairly treated because he was a Household Name.

Along with many others, CaseLoad knows who he is. So much for name suppression.

The man's behaviour - while unwelcome and offensive to the woman on the receiving end - appears to have been at the lower end of criminality.

Whatever else he has done Household Name has worked hard and done well in his various endeavours, for which he deserves credit.

Some will say Judge Dave Saunders, a former Crown prosecutor, was right to grant permanent name suppression in these circumstances, if only to try to avoid a punishment which would far outweigh the crime.

Even guilty Household Names are entitled to a fair crack of the whip.

It's called justice - and sometimes it is tempered with mercy.

Not that hang-em-high self-righteous bloggers and slavering gossips will ever agree with that.


Tea and pee shock

In the wake of revelations that senior politicians take holidays [Shock!] and fail to work 24hours a day [More Shock!], comes the disclosure that judges take surreptitious "tea and pee" breaks - every day.

"For many generations lawyers and their long-suffering clients have believed judges took adjournments during trials to refresh themselves on the evidence, mull over legal argument and consult established precedents," said Another Bloke from the Criminal Bar Association, to no-one in particular.

"But, b*gger me, we now find Their Honours have been sneaking out two or three times a day for an English Breakfast and a widdle..."

"This takes the biscuit," said The Scunner.

"That too," said Another Bloke, to anyone who'd listen.


A senior judge (72) writes

"Dear CaseLoad,

I have so enjoyed looking at the delightful pictures in the sealed section of My Big Blue Chambers Book as much as my various wives have enjoyed the many refreshing and invigorating tips to enhance domestic adventure.

I hear you are about to reveal these delicate contents to all and sundry.

That would be a great pity and not quite cricket.

Many folk - High Court Judges and Bishops excluded - are simply not ready for this degree of detail and may not be able to handle themselves in any kind of dignified fashion should it be released.

Yours in Discretion (Name suppressed)

PS: Is that you sandwiched between two mature lady briefs (Names suppressed) in the centre section???"

[In case anyone is wondering, The Big Blue Chambers Book does exist. Copies are given to High Court judges to ensure they dress properly, mind their Ps and Qs and stay on the rails.]


Sisters play the percentages

A higher percentage of women applicants than men are made Queen's Counsel and the ladies don't have so long to wait.

Of 842 lawyers who, between 2002 and 2014, applied to be made Queen's Counsel, only 82 (9.7 per cent) were anointed with the rank, the New Zealand Law Society's LawTalk magazine reports.

A little more than 12 per cent of applicants were women and 17.5 per cent of them were successful, ahead of 8.7 per cent of male wannabes. Women appointees were in the game for an average of 26.5 years and men for an average of 29.3 years.

Which raises the question: Is there a gender bias in favour of women lawyers or are they just better at it?


Seen & Heard

* Glaister Ennor partner Tim Jones has been re-elected unopposed as the New Zealand Law Society's Auckland branch president. Three vacancies on the Auckland branch council were filled, after an election, by Kathryn Beck, Clive Elliott and Sally Fitzgerald.

* Meanwhile Auckland district law society president Brian Keene QC is trialling in Fiji defending real estate businessman and former Fiji Minister of Youth, Sports and Employment Opportunities Keni Dakuidreketi on corruption charges.


Thought For The Day

Should legal aid payments to lawyers be withheld and only drip-fed once their clients start to repay the taxpayer's largesse?

- NZ Herald

Jock Anderson

A look behind the scenes of the legal profession

With a life-time of court reporting under his belt - and from the sanctuary of the Ladies & Escorts Lounge - journalist Jock Anderson produces law-flavoured news and views with a touch of humour - occasionally aided and abetted by disparate cronies including Our Man At The Bar and The Scunner.

Read more by Jock Anderson

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