The results of the Law Society's latest Access to Justice survey are harrowing, but unsurprising.
Of the 2989 lawyers who participated in the research, half said the legal system was poor at providing access to justice.
Three-quarters of legal aid lawyers had to turn away people seeking legal assistance in the past year.
While legal aid lawyers felt a moral duty to provide legal services, a quarter planned to do less legal aid - or stop altogether.
More than half said they weren't remunerated for 48 per cent of the hours they'd worked on their last case.
RNZ data shows legal aid lawyers have a maximum hourly rate of $159 per hour, if matched with inflation from 2008 that would be $236.34 an hour. Self-represented litigants are assigned an "amicus curiae" from the court at a rate of $300 an hour.
Crown prosecutors charge a maximum of $309 an hour when working for government departments. The average hourly rate in 2016 (excluding GST and disbursements) for law firm employees was $292.70, and a QC's hourly rate is about $1000 an hour.
"I am predominantly a legal aid provider. Proper representation for clients takes time, thought and a holistic approach. It is exhausting to have to fight their corner with legal aid as well as with the police or Crown just to ensure that clients have access to justice as opposed to access to a lawyer to run a cookie cutter court case," one respondent said.
Fee change challenged
In 2009, Dame Margaret Bazley's controversial report Transforming the Legal Aid System sought to completely overhaul what was described as a system that was "open to abuse by lawyers and defendants".
The reforms were designed to control rising costs in response to spending on legal aid growing from $111 million in 2006/07 to $172m in 2010.
The Criminal Bar Association took the Attorney-General to the Court of Appeal in 2013 over the changes that meant lawyers were paid a set fee based on the seriousness of their client's charges, as opposed to being paid for the amount of work completed.
The court found the policy unlawful in part because it was inconsistent with the Legal Services Act (which was passed as a result of Bazley's review in 2011).
Legal aid isn't cheap
Under the 2011 Legal Services Regulations, people can qualify for legal aid in civil cases if they receive a benefit from WINZ, or if their income is lower than $23,820 if they are single and have no dependents, for example. Applicants have to prove they can't afford a lawyer and that means declaring income, savings, and assets.
While Government-funded legal aid is designed to pay for legal help for those who cannot afford a lawyer, it's considered a loan.
Those who receive it may have to pay it back, depending on how much they earn, and whether they own property.
Legal aid debt currently sits at $177m.
Under the Legal Services Act 2011, the Legal Services Commissioner may write off all or part of the debt if it would "cause serious hardship to the aided person" or if it "would be just and equitable" to do so.
Few know that interest at a rate of 5 per cent kicks in six months after a case has been finalised.
Interest charges were officially introduced in 2013 under the Legal Services Amendment Act and the rate (which was originally going to be 8 per cent) was set to reflect the cost of the Government not being able to use the money.
In theory, if repayments aren't made to the Ministry of Justice, debts could be passed onto a debt collection agency, but this hasn't been the case since 2018.
Where to from here?
It's been more than a decade since Bazley's overhaul, and all conclusive evidence suggests the changes haven't worked. The public often don't meet the threshold to qualify for legal aid, and if they do, it comes at a literal cost.
The situation has been dire for lawyers too, who are incentivised to do a shoddy job because they're not adequately paid for the time needed to represent clients. It has also meant lawyers are dissuaded from pursuing criminal law.
The legal aid system is supposed to be reviewed every three years but it was cancelled in 2021.
Law Society president Tiana Epati said it best via the Law Society: "Aotearoa New Zealand's legal aid system is collapsing. I'm calling on Government to address this immediately."