After years of grumbling, it’s not the result the legal community was looking for, Criminal Bar Association treasurer Tony Bouchier says.
“It’s critical because the majority of people who turn up to court for their initial appearance need a lawyer; that lawyer needs to be able to provide good quality legal advice. It’s not to say that it isn’t the case, but the financial burden means there’s no incentive to do it,” he told me.
“The duty solicitor service is the pointy end of the law, where it’s the people most in need who come and utilise the services of duty solicitors. It’s the triage point for the District Courts around the country.”
The work is not attracting some of the more senior and experienced lawyers because they simply can’t afford to do it. And for others wanting to pursue a career on the duty solicitor roster, they need to be trained, observed and accredited.
“So what’s happening is, it’s just not worth senior lawyers’ time and financial energy to put junior lawyers through the process because it doesn’t cover junior lawyer overheads.”
For Bouchier, he’s semi-retired and thoroughly enjoys the work - “certainly don’t do it for the money”.
“It amazes me. I take my car in for a service and the mechanic costs me $120 plus GST an hour. Duty solicitors [have been] paid $88 an hour. It’s disrespectful, and the Ministry of Justice has been putting the whole duty solicitor issue on the back-burner for decades and leaving us to fend for ourselves.”
Where did it all go wrong?
The broken criminal justice system arguably stems from reforms resulting from Dame Margaret Bazley’s report Transforming the Legal Aid System in 2009. The reforms cracked down on legal aid spending, which grew from $111 million in 2006/07 to $172m in 2010. Last year, legal aid spending was $212m, according to the Ministry of Justice’s annual report.
According to my friend, the inflation calculator, $111m would amount to $166m today, and $172m would equate to $236m.
The report painted lawyers as cheating the system by working out of their car boots and racking up legal aid bills on the taxpayer. By car boots, Bazley said some lawyers used a District Court law library phone as their office number and repurposed court interview rooms into office spaces.
2009 report a juicy read
The ramifications of the report aside, the report in and of itself proves to be a great read in a post-pandemic and digital world. For example:
“One lawyer who wanted to meet me arranged to do so in a pub. When I asked if he had an office, he told me his office was at his home. I thought it unlikely that a criminal lawyer would really have his clients visiting his home,” Bazley said.
“The term is used to describe lawyers who have dispensed with offices and the structural support they offer, such as fax machines, photocopiers and administrative assistants. Instead, these lawyers are completely mobile, with laptops and cellphones that enable them to carry on their business wherever they are.” The audacity!
Bouchier was the president of the Criminal Bar Association during the report’s release and regrets not challenging it at the time.
“You know what? The ‘car boot lawyer’ was reflective of the fact some lawyers couldn’t afford to pay for commercial premises.”
It was the start of a lingering, festering sore that the profession could do without, he said.
There has been a wilful blindness on account of the Government and the Ministry of Justice to meaningfully address duty lawyers’ pay rates, Bouchier said.
What the powers that be have to say
Justice Minister Kiri Allen declined to comment on the basis the decision to raise duty lawyers’ rates was made by the Legal Services Commissioner.
Legal Services Commissioner Tracey Baguley said duty lawyers played an important part in New Zealand’s justice system.
“I acknowledge that duty lawyer remuneration has not been revisited in some time. The rate was previously increased in 2008. The current change reflects the skills and experience of duty lawyers by moving their rates in line with PAL 1 legal aid lawyers.”
The review of the duty lawyer service would evaluate the current state of the service and make recommendations on “how the service may more effectively and efficiently provide legal advice and assistance to defendants in the District Court”.
Remuneration would be included in the review, and it would be led externally and include an advisery group of key stakeholders, including lawyers, she said.
Let the grumbling continue, or as the saying goes.
Sasha Borissenko is a freelance journalist who has reported extensively on the law industry.
