Indictment: a case of bad lawyers

On TV crusading defence lawyers are heroes who always triumph. But real life in New Zealand courtrooms can be frighteningly different, as JAN CORBETT discovers.

Consider the criminal defence lawyer as portrayed in successful TV dramas.

Typically male, he will be ruggedly handsome but slightly dishevelled. A blend of maverick and conservative, he will disdain mindless authority but strive to honour a self-styled moral code. A mixture of detective, private eye, lateral thinker and rabid interrogator, he will invariably prove his client's innocence.

Best of all, he always shows up in court on time.

But while Hollywood writers like Steven Bochco (LA Law, Murder One) and David E. Kelley (Ally McBeal, The Practice) were unwittingly seducing an entire generation into law school, some of the advocates in our courtrooms appear to have drawn their inspiration from Mr Bean.

Chief District Court Judge Ron Young clearly thought so when he sat at the now-closed Otahuhu District Court last August.

The rising level of incompetence among district court lawyers has been talked about in smoke-filled rooms for some time. But Judge Young unknowingly flung the doors open on that discussion when the letter he wrote to the Auckland District Law Society complaining about South Auckland lawyers found its way into the public domain.

He wrote of "a disproportionate number of counsel who, as both assigned counsel, counsel and duty solicitor, provide a standard of work which is below a reasonable expectation."

His criticisms sparked considerable anger among the target group, but rang true with many senior lawyers who say the problem is wider than South Auckland.

According to respected barrister John Haigh, QC, "Some defendants would be better off defending themselves."

Criminal lawyer David Jones even suggests that the standard of defence offered by many lawyers paid from the public coffers "is of Third World level, or lower."

If he ever needed a lawyer to defend him, Mr Jones says, "there are only about half a dozen I would go to out of about 200." And, he warns, don't be fooled by the famous. "A lot are good at self-promotion, but don't live up to their billing."

Asked for the most common example of lawyers failing in their duty, both lawyers and judges chime in harmony: "Failing to turn up."

That is generally followed by failing to ascertain the facts of the case, failing to advise the client to plead guilty when there is no defence, running an unstructured, incoherent case that wastes the court's time, and so on.

"If you have a level of incompetence and poor judgment calls, inevitably there will be miscarriages of justice," says Mr Haigh.



Although we still have a relatively honest and diligent police force, the fear is that as the already-thin blue line becomes increasingly stretched, investigations may not be entirely thorough and the innocent may be falsely accused. The only people able to force consistently high police standards are the defence lawyers.

Incompetent lawyers are a drain on the taxpayer. It costs $75.9 million a year to run the district courts, and that is without the judges' salaries. The criminal legal aid bill for the year to June 2000 reached $45.5 million, a drop on previous years. On a very crude average, the defence costs the taxpayer $760 a case.

It has been a long time since we tolerated incompetence and inefficiency in the health system. Every dollar is carefully accounted for, medical mistakes or negligence are scrutinised and sometimes punished. Peer review and continuing education for doctors have been made largely mandatory.

Yet the lawyers who fought the cases that forced the medical profession into this constant monitoring have no parallel accountability, no compulsion to update their training, and are never subjected to the same professional scrutiny, unless (in their role as solicitors) they plunder the trust fund.

Most striking is that the district courts, which on bad days mirror the chaos that typified public hospitals before the health reforms, have never had the rule run over them by Treasury boffins.

Although the criminal defence lawyer is the favourite character in fiction, in real life the best and brightest head for the large commercial law firms, where the remuneration is greatest. Middle-grade graduates go to middle-sized firms. And in these days of too many law graduates relative to the number of jobs, those with average grades are lucky to find employment. Their only refuge is the criminal law where, says veteran practitioner Roy Wade, they can work as "one-man-bands operating from the back of their car with a cellphone and a laptop."

Mr Haigh explains how, back in the early 1970s, before ACC legislation removed our right to sue for personal injury, law firms were active in low-paid criminal work which they subsidised with lucrative personal-injury cases. That gave young lawyers the opportunity to cut their teeth in criminal work under the firm's guidance. Removing personal injury claims from court pushed criminal law into the domain of sole practitioners who operate with lower overheads and who do not take on junior staff to train.

Mr Wade has long experience at both prosecuting and defending here and in England. Ask him what the general New Zealand standard is like and he will tell you, "It's pretty bad out there."

In England, a young lawyer must spend a year working under a more senior practitioner before going it alone. And barristers must practise in chambers, surrounded by colleagues from whom they can continually learn. While some argue that it makes the criminal law a closed shop where entry is dependent on belonging to the right networks, its benefit, says Mr Wade, is that judges worried about the competence of one of the lawyers can talk it through informally with the head of chambers.

Although he admits there is a competence problem among his members, Criminal Bar Association chairman Richard Earwaker says lawyers can also be let down by the court system. He complains of simple failures like inadequate space in the court where they can interview their clients, an absence of interpreters for clients with poor English, and inefficient court staff who fail to ensure the necessary documents make it into the courtroom.

He says that although lawyers can start appearing in court fresh out of law school, they cannot go on the list allowing them to be paid out of legal aid without a modicum of experience. Once on that list, they cannot improve their grading, allowing them to get funds to handle more complex cases, without expanding their experience.

Critics say this provides an inbuilt financial incentive to take cases to trial, when the best advice would have been an early guilty plea with the "reward" of a lighter sentence.

But Bar Association president Stuart Grieve, QC, for one, does not consider this an acceptable paradox. It is simply unethical for a lawyer to put his or her professional needs ahead of the client's best interests, he says, and if it happens it is close to a striking-off offence.

"No lawyer is owed a living on legal aid. Taxpayers who pay for legal aid are entitled to some expectation that the advice they are paying for is provided by someone with experience, judgment, ethics and a knowledge of the law."

Until now, the legal aid gradings have been determined by each district law society. But according to Dunedin barrister and chairman of the new Legal Services Agency Stephen O'Driscoll, "they had real difficulty carrying out that function." Assessing lawyers' competence is complex. That the client goes to jail does not mean the lawyer is no good. There may be sound and confidential reasons why a case was run in a manner that seemed mysterious to others.

Although the Auckland District Law Society is said to have tightened its assessment criteria in the past three years, one source says that a number of lacklustre counsel slipped through in the intervening years and cannot be removed from the list.

But that may change after November 1 when the Legal Services Agency takes over assigning criminal cases to publicly funded lawyers. By then it wants to have credible, quality assessment in place.

Mr Jones suggests that one standard of assessment could be how many private clients a barrister attracts. Although he says there are competent lawyers who choose to survive mostly on legal aid work, there are also what he calls "bottom feeders" who survive only because of legal aid and never progress to taking private clients because they lack ability.

Another strategy is establishing a public defenders office - an idea floated by former Justice Minister Tony Ryall, who admits that although it was promoted as a means of controlling the legal aid bill, he was also motivated by an unspoken desire to improve standards in the courtroom.

Assessing ability is only one aspect of addressing the problem. Forcing lawyers who are clearly intelligent enough to earn a law degree into appropriate postgraduate training is another.

Mr Grieve laments the lack of inbuilt systems that foster training and discipline, saying "there is an obligation on the whole profession to put that structure in place."

While he says senior barristers cannot be expected to run premises large enough to support juniors, they could be paid to engage junior help on a trial-by-trial basis.

"The legal services agency should, over time, decide on a list of lawyers it is prepared to brief. You might end up with a list of 100, or maybe 50 lawyers qualified to run trials of any seriousness. And you could make it a condition of engagement that they take a junior with them at a lower rate."

Not that he is advocating a closed shop of state-funded defence lawyers. Admission to the list would be on competence alone, with no cap on numbers.

Most agree there must be some judicial involvement in assessing a lawyer's ability, provided judges are prevented from exercising personal snitches against individuals. After all, the only people truly capable of judging a lawyer's ability are the aptly named judges.

Several lawyers spoken to suggest that district court judges are guilty of letting standards slip. Some are apparently genuinely afraid of criticising lawyers from ethnic minorities for fear of being attacked as racist.