Law Society research shows 20,000 people have been turned away for legal aid in the past 12 months, leaving some resorting to representing themselves.

A survey of 3000 lawyers by the New Zealand Law Society has uncovered the grim reality of thousands struggling to get legal aid in Aotearoa, which has been further exacerbated by Covid-19.

President Tiana Epati said the country’s legal aid system was collapsing and she was calling on the Government to address it immediately.

“Vulnerable people who cannot afford lawyers and seek legal aid are not getting it because the number of lawyers undertaking legal aid has diminished. Legal aid lawyers are unable to cope with demand, are too poorly paid to deal with the complex cases they have, so they quit the legal aid system.”

She said that as a consequence, ordinary people were accessing a system but not accessing justice.

Epati cited a case study where a parent, unable to get legal aid to seek custody of his children, had given up trying to represent himself.

“When ordinary people cannot get the legal aid they’re entitled to, and give up on their rights, they become even more vulnerable. Down the line, the impact on their lives can be hugely damaging.”

But it’s not just legal aid that has been impacted by Covid-19, she said, as almost 47,000 court events had been adjourned in this latest lockdown, building up a backlog of more than 3000 jury trials, roughly 1000 of which are in the Auckland area.

“This year, faced with an even bigger backlog and an exhausted, over-stretched legal aid pool, the goodwill of lawyers has been drained dry. It is very unclear how this mountain of work will be tackled, or by whom.”

According to the survey, almost a quarter of current legal aid lawyers intend to do less – or stop legal aid work entirely within 12 months.

“It revealed that legal aid lawyers worked for free around half the time they spent on their last legal aid file. Their legal aid remuneration hasn’t increased in over a decade, while over the same period, CPI has increased by 18.3 per cent. They have an hourly rate which is half that of Crown Prosecutors and independent counsel to assist the court.”

Acting Ministry of Justice legal aid services commissioner Tracey Baguley confirmed the hourly rates for legal aid lawyers were last increased in 2008.

Baguley said providers were paid on a system of fixed fees, which are set fees lawyers are paid for completing specified activities on a case, and hourly rates.

The last update to remuneration for legal aid lawyers was in 2018, when the fixed fees for criminal legal aid were revised.

Epati also said the strain on Māori and Pasifika legal aid lawyers was particularly immense.

“Lawyers working in Māori and Te Tiriti o Waitangi Law carry the heaviest legal aid burden and spend nearly twice as much time providing free legal services (on average) as most lawyers. Legal aid lawyers who identify as Pacific peoples are also more likely to have done legal aid work in the last 12 months and are working excessive hours; 54 hours a week compared with 50 hours for legal aid lawyers and 47 for all lawyers.”

Epati warned that the window of opportunity for finding a solution was closing fast because senior aid lawyers were “calling it a day”.

“A three-spoke attack by the Government to solve the problem is needed. Firstly, there needs to be a substantial, overall increase in legal aid remuneration. Secondly, there needs to be more funding for junior lawyers to support legal aid seniors. At the moment, there’s no funding for this, compounding the problem because there are no junior lawyers to succeed seniors who are leaving.”

Finally, she said the administrative burden of becoming a legal aid provider and running a file must be dealt with.

“Therefore, as the Budget is being set for the next financial year, I call on the Government to act quickly.”

Baguley said the ministry undertook a review of legal aid policy settings in 2018.

Baguley said the review focused largely on key eligibility, repayment and access settings in the Legal Services Regulations 2011, and involved engaging with legal aid providers and the wider profession.

Since the review, Baguley said the ministry has been working to address the issues highlighted, including making operational improvements to the legal aid scheme which has focused on reducing administrative burden.

“Additional funding is required to address the remaining key issues identified during the 2018 review, including making any adjustments to eligibility, repayment, the user charge, interest and provider remuneration settings.”

Since 2018, she said, the ministry had seen a 15 per cent increase in the number of legal aid providers – with 2333 active providers across Criminal, Family and Civil legal aid work.

“The nationwide coverage of legal aid lawyers during Covid-19 lockdowns has remained consistent. While Legal aid can be a way for lawyers to receive experience in new levels of cases and continue their development, it can be a long-term part of a lawyer or firm’s practice as well.”

Baguley said this survey shows there’s a strong sense of wanting to help people who otherwise cannot afford a lawyer and a moral duty to do this, both of which suggest a long-term commitment to the services.

“The ministry will work with the Law Society to understand the reasons why some lawyers indicate they will provide less legal aid, and work to develop options to address this.”

In regard to the remuneration, she said remuneration rates for legal aid lawyers were identified as an issue during the 2018 legal aid review, but significant additional funding is required to address this.

During the 2020 and 2021 period, Baguley said, Legal Aid Services received 83,480 applications for legal aid and of these, 76,903 applications were granted.

Baguley told the Herald that when applying for legal aid for a civil or family case, an applicant must find their own lawyer.

“The ministry does not hold information on how many of these cases are turned away by lawyers.”

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