Lawyers accused of legal aid rort

Some defence lawyers are delaying guilty pleas to make more money from the justice system. Photo / Herald on Sunday

Criminal lawyers have been accused of milking the taxpayer-funded legal aid bill, which is tipped to top $144 million next year.

Ministry of Justice officials say some defence lawyers are delaying guilty pleas to make more money from the justice system - an allegation strongly denied by the Criminal Bar Association.

The Government has appointed experienced public servant Dame Margaret Bazley, who headed the three-year commission of inquiry into police conduct, to review the legal aid system.

She is due to deliver her interim report to Justice Minister Simon Power this month, with full findings to be debated by Cabinet in December.

The legal aid bill has ballooned from $84 million five years ago to an estimated record $144 million next year. Almost $20 million more was spent last year in administration costs.

The sharp rise has been blamed on more criminal prosecutions, a "bulge" in Treaty of Waitangi claims and increasing numbers of civil claims against the Government. But briefing papers obtained by the Weekend Herald under the Official Information Act show that Justice Ministry officials believe that some defence counsel delay court appearances to claim more legal aid.

The Criminal Bar Association disputes the claim and instead blames court delays on police officers who lay too many charges and are slow to disclose evidence.

Experienced barristers have also taken exception to Justice Ministry claims that the recently expanded Public Defence Service - an office of salaried legal aid lawyers - is cheaper than the independent bar.

Officials told Mr Power that an evaluation of the Public Defence Service supported anecdotal evidence that the current legal aid scheme does "not sufficiently incentivise" lawyers to progress court cases efficiently.

"If the system pays per court-event, then it is reasonable to assume that (unless mechanisms are put in place to manage this incentive) the number of court events in each case will be maximised to increase revenue," the briefing papers say.

Mr Power told the Weekend Herald that "reform is coming to the criminal justice system".

"There is significant room for improvement. Tinkering around the edges with these problems isn't going to cut it any more.

"The legal aid system needs to be properly structured and incentivised so that the number of appearances is appropriate," said Mr Power. "At the moment, legal aid has been driven by a number of appearances. The question is: is that the right way to fund it?"

Mr Power recently expanded the Public Defence Service in Auckland at a cost of $5.3 million and said he was "very impressed" with its work.

He added: "This is not just about defence lawyers. This is about the entire system. That includes the role of police and Crown."

John Anderson, of the Criminal Bar Association, said defence lawyers were an "easy target" and the Justice Ministry seemed "obsessed" with the claim that independent lawyers were manipulating the system.

In his experience as a criminal barrister, extra court appearances occurred because of:

* Domestic violence initiatives to ensure defendants attended anger management classes.
* Misplaced files.
* Delays in police disclosure.
* Defendants failing to appear.

Conviction rates for both private lawyers and the Public Defence Service are approximately 70 per cent.

But Mr Anderson queried the Justice Ministry claim that defendants were more likely to plead earlier, saving time and money, if the lawyer was from the Public Defence Service.

"That may be the case if they are dealing more with simpler, high-volume work where early guilty pleas are more likely."

The Criminal Bar Association hired a forensic accountant to analyse the Justice Ministry assertion that the Public Defence Service was less of a burden on the taxpayers.

The inquiry found the claim failed to take into account that the bulk-funded lawyers undertake "relatively few" of the major or complex trials, often involving multiple accused, and were very expensive. Of the all legal aid payments, just 1 per cent of all criminal cases accounted for 27 per cent of the total bill.

More than $2 million was paid to fund the defence of David Bain, the nation's most expensive trial.

JUDGEMENT DAY LOOMS

Criminal lawyers are worried that the Public Defence Service will replace them, says John Anderson of the Criminal Bar Association.

While "very impressed" with the PDS, Justice Minister Simon Power told the Weekend Herald there would "always be a place for specialised, experienced criminal lawyers who operate at a different end of the offending scale".

However, in an exchange in the Manukau District Court, Judge Roy Wade warned lawyer Ted Faleauto of the possibility of a "serious diminution in the number of private barristers".

The judge is reprimanding Mr Faleauto for his lateness.

Mr Faleauto: Yes sir. I'd have to apologise for that sir. Unfortunately, the new system of nine o'clock callovers was not notified to most counsel and many of us are still unaware of the existence of nine o'clock callovers for trial.

Judge Wade: Well, can I explain why that probably is Mr Faleauto. It's because members of the Manukau Bar Association could never, ever be bothered to turn up for the court user meetings. Everybody else is there. The police are there, the Crown are there, the Probation Service are there, even Chubb are there and the Salvation Army are there. But where are the defence bar? Not a sign of them.

Mr Faleauto: I can't answer that sir.

Judge Wade: Well no, but I mean what is of considerable concern to me ... is that Dame Margaret Bazley has been charged with undertaking a fundamental review of the legal aid system to be reported back to Government by July. And when she comes here, as I am sure she will start here, she is going to be told that although the Public Defence Service do a first class job, a significant minority of the Manukau Bar do not. The result I suspect is likely to be a very serious diminution in the number of private barristers practising out of Manukau in a couple of years' time.