Tiana Epati: Justice for all impossible when legal aid is broken

Tiana Epati says the New Zealand Law Society has empirical evidence the legal aid system is on the brink of collapse. Photo / Supplied

Opinion

OPINION

When a father gives up on fighting for custody of his children because he can't get a lawyer, we know we have a broken justice system.

"Justice for all" is a concept that's fast collapsing in Aotearoa because there is no effective way for vulnerable people to obtain justice when in distress. Legal aid, the best protection for people, was failing pre-Covid, but now it is at breaking point.

The New Zealand Law Society is calling on the Government to better invest in our legal aid system to ensure all New Zealanders have access to justice, and legal aid lawyers can deliver this vital service to our most disadvantaged.

Without quick intervention, we risk forcing life-changing consequences on to people and seeing our young and passionate lawyers unable to undertake this essential work.

We now have empirical evidence the legal aid system is on the brink of collapse. We recently commissioned an independent report from Colmar Brunton who canvassed almost 3000 lawyers on access to justice - the biggest survey of its kind in New Zealand.

It found: On average legal aid lawyers spent almost 50 per cent of their time on the last legal aid file with no payment; 77 per cent of all legal aid lawyers have had to turn away clients seeking help in the last 12 months, equating to a minimum of 20,231 individuals turned away who were looking for a legal aid lawyer; a quarter of the current pool of legal aid lawyers plan to do less legal aid work or stop altogether in the next 12 months, predominantly senior lawyers with 11-19 years experience; and 63 per cent of lawyers have no interest in undertaking legal aid at all because it is unsustainable and administratively cumbersome.

Central to the survey findings is that the main barrier for lawyers is remuneration, which has not increased in well over a decade. Costs of legal practice and inflation have steadily increased, but the rate for legal aid work has not since 2008.

The regulatory burden has also increased, with a knock-on effect for running a legal practice.

Unsustainable remuneration means fewer legal aid lawyers are being attracted, and there's a growing number considering getting out of legal aid. This means the legal aid system is being squeezed from all sides.

The Government has effectively relied on a "goodwill model" - where legal aid lawyers work for free on a significant proportion of each assignment, out of a deep sense of social injustice if they don't.

This is, in effect, an exploitative model which relies on a small group to stand the whole system up.

Tiana Epati. Photo / Supplied

The survey also told us that Māori and Pasifika lawyers are the most pressured lawyers when it comes to legal aid and service to community. They are more likely to have undertaken legal aid work in the past 12 months, more likely to have provided legal services for free, and more likely to rate the justice system as very poor. And yet they are a vital part of serving a community where Māori and Pacific people are over-represented and vulnerable.

My call to Government is this: take action now to appropriately fund legal aid, so that people don't have to give up on justice and that the solicitors who deliver it are paid fairly.

Our legal aid system was on the brink but, as with many issues, Covid-19 has further exposed and exacerbated the problem.

As a result of the latest lockdown, approximately 47,000 court events have had to be adjourned.

There are now well over 3000 jury trials waiting to take place, roughly 1000 of which are in Auckland, and this number is growing. Justice delayed, is justice denied.

In 2020, lawyers – including legal aid lawyers – stepped up and did more trials than ever before.

But now, that backlog has escalated dramatically, and the pool of goodwill is exhausted. If the country loses legal aid providers, many of whom would otherwise be working on this backlog, the downstream effect of lack of justice will have severe social consequences.

New Zealanders who need legal aid help deserve much better than this, and there are solutions, if we act quickly.

Firstly, Government must pay sustainable rates to legal aid lawyers to retain the senior lawyers on the brink of leaving.

Secondly, junior lawyers can be part of the solution. At the moment, a second, junior lawyer is not funded in a legal aid case, meaning they're not used. Funding them would not only ease the burden on current legal aid lawyers, but it would also train new talent for the future provision of legal aid.

Thirdly, the administrative burden of applying to be a legal aid lawyer and run a legal aid case must be made easier.

Despite the issues facing us, I take some heart. Most lawyers still feel a moral duty to "give back" and 12 per cent of respondents not currently doing legal aid are interested in delivering it.

So, bridge the gap, Government. Act now to fix the cornerstone of New Zealand's rule of law and restore rightful representation to those who need it.

I refuse to accept the alternative, such as a parent giving up on fighting to see their children.

• Tiana Epati is president of the New Zealand Law Society | Te Kāhui Ture o Aotearoa.