Legal aid digs in to avoid paying lawyers any more

A long-running fight over paying lawyers to deal with legal aid cases was finally settled in December. But now it’s not – with the government agency that holds the purse-strings appealing a crucial court judgement and critics saying justice is being denied and demeaned by penny-pinching.

In the High Court in Wellington last year, a series of black-cloaked lawyers took turns to stand, show habitual deference to their colleagues and the judge, and then talk of dubious dealings and double-dipping.

The heart of the hearing was an argument over $10,000, but everyone knew it wasn’t just about that.

It went back to the case of Mauha Fawcett, a young Mongrel Mob prospect convicted of murdering Christchurch sex worker Mellory Manning in 2008.

Fawcett had been pursued by police for years, harangued and sweet-talked during more than 10 interviews, over 30 hours, before he was eventually charged, found guilty of killing Manning, and in 2014 sentenced to at least 20 years in prison.

READ MORE:
* The tragic and terrible case of Mauha Fawcett’s wrongful conviction
* South Canterbury lawyer says legal aid crisis causing ‘massive injustices’
* Justice squeeze: Thousands turned away as legal aid system collapsing, says Law Society
* Lack of legal aid lawyers in Blenheim sees Nelson lawyers helping out

But the following year, lawyers Christopher Stevenson and Kerry Cook took on Fawcett’s case, believing a significant miscarriage of justice had occurred.

They proved that Fawcett had a severe intellectual disability, a “confession” he made during a police interview was unreliable, and there was no verifiable evidence Fawcett was involved in Manning’s murder.

In 2021, after Fawcett had spent nearly 10 years in prison or on restrictive bail for a crime he insists he didn’t commit, a judge dismissed all charges against him.

That six-year battle to inch closer to the truth and get justice for Fawcett came at a cost to Fawcett, his lawyers and the victim’s family.

And in pure accounting terms, Fawcett’s legal bill over this time, paid by legal aid because he had no income as a result of being in jail, amounted to more than $1 million.

This included the cost of numerous international and New Zealand experts – among them pathologists, neuropsychologists, psychiatrists and telecommunications specialists – along with private investigators and Fawcett’s legal team.

It also covered the 1000 hours it took three legal executives to sort and organise the mountain of evidence from one of the country’s biggest murder investigations that had been delivered to them by police.

But what drew the lawyers to court that day in Wellington was a battle over a $10,000 bill, a petty sum in the scale of things, but a sum Fawcett’s lawyers felt represented something much more – justice.

Legal aid is a system where the government provides funding for those who can’t afford legal representation when facing charges in our courts.

The money doesn’t go to the accused person, but to their lawyer and others, to pay to defend them.

Only the poorest qualify – the income threshold for an individual is well below the minimum wage.

And even then, it’s a loan, expected to be repaid in most cases.

Despite this, legal aid is popularly characterised as a gravy train for lawyers racking up big fees on behalf of impecunious clients.

In complex cases, lawyers apply to the Legal Services Agency, the part of the Justice Ministry that administers legal aid, for whatever hours of work they expect the case will take. Legal Services approves or modifies the claim, and a tribunal above the agency settles any disagreements.

As the case progresses, further funding applications, or “extensions to grant”, can be made, as more work is deemed necessary.

But all this takes a great deal of time – applying to Legal Services, justifying why funding is needed, outlining the case’s context, arguing what expert evidence or further investigation is needed, pushing back when funding is declined, as frequently happens, and so forth.

In Fawcett’s case, the correspondence alone between his lawyers and Legal Services filled 10 Eastlight ringbinders, including dozens of lengthy letters explaining why funding was necessary.

More than 10 “extensions to grant” had to be made to obtain further funding, each requiring more information to be provided.

But in 2019, when Fawcett’s legal team applied for a junior lawyer to be compensated for 90 hours’ work dealing with the legal aid grants, a total of around $10,000, Legal Services refused, saying it was “administration”, and not part of representing Fawcett.

Fawcett’s lawyers appealed to a tribunal, then again to the High Court.

As Kerry Cook argued in court, the process of obtaining legal aid funding was integral to giving their client the best representation and a fair trial, and had nothing to do with “going out and buying staples”.

Promises of access to justice were meaningless if a defendant wasn’t given the resources to exercise it, he stressed.

Robert Lithgow, KC, representing the Defence Lawyers Association New Zealand​, said Legal Services’ refusal of the 90 hours was part of the “nibbling away and cheese paring” of legal aid payments, and trivialised what lawyers did for their clients.

“This work isn’t done for the amusement of counsel, but to adequately prepare a case.”

And as Felix Geiringer, representing the New Zealand Bar Association, pointed out, Legal Services’ approach in this case exemplified why the legal aid system was falling apart, with even Chief Justice Helen Winkelmann describing it as so underfunded that it was “broken and may collapse”.

Geiringer highlighted the fact that hundreds of lawyers now refused to do legal aid work, because the rates were so low, the administration so taxing, and dealing with Legal Services so frustrating.

A 2021 Law Society survey of 3000 lawyers showed 63% had no interest in legal aid work because of inadequate remuneration and stultifying bureaucracy.

A quarter of those doing legal aid said they planned to do less, or stop altogether.

However, Ministry of Justice lawyer Lisa Hansen insisted that Fawcett’s legal team had been paid a considerable sum, and he had received excellent legal representation.

The hours that were rejected were not considered legal services because they did not involve advice or advocacy for Fawcett.

But one of the ironies was that Legal Services had previously paid Fawcett’s lawyer Christopher Stevenson for such “administration”.

However, when this had been previously pointed out, the Legal Services Commissioner, Tracey Baguley (who didn’t appear and couldn’t be cross-examined at the hearing), told Stevenson this had been a mistake, “which, fortuitously, benefited you”.

But justice should never depend on good fortune or official oversight.

As Kerry Cook argued, seeking and receiving increases in the amount initially granted by Legal Services in Fawcett’s case were imperative to him eventually getting justice.

Yet these were the things Legal Services was effectively saying should be done for free.

Despite the amount of legal aid Fawcett eventually received over the six years of appeals and hearings Stevenson and Cook were involved in, both say they did hundreds of hours’ work on the case that was never paid for. And that’s the same for virtually all legal aid cases they do.

Additionally, the unargued fact was that such “administration” is always charged and paid for if a lawyer has been hired by a private client: Why should that be any different if it’s the state that’s effectively hiring the lawyer?

In December, Justice Peter Churchman delivered his judgment in the Fawcett case, clearly stating the legal services commissioner had made an error in refusing payment.

He said the extent and complexity of the “work involved could not realistically be described as just involving ‘form filling’ ”.

However, he left it up to the commissioner to decide if all 90 hours should be reimbursed.

On January 16, the Ministry of Justice told Stuff that, in light of the ruling, the commissioner was “developing a granting policy for ‘administration’ consistent with the judgment”.

But despite this indicating that the court’s ruling had been accepted, the commissioner now appears to have backtracked, and is appealing the judgment.

This means that not only has Fawcett’s junior counsel still not been reimbursed for the 90 hours she worked, but other legal aid lawyers cannot use the case to argue they should also be paid for “administration”.

The legal services commissioner refused to say why she apparently changed her position, and on what grounds the appeal has been made, arguing that she can’t comment while there are legal proceedings.

Robert Lithgow, KC, argues Legal Services’ attitude goes far beyond judicious allocation of public money, and the agency is essentially “anti-lawyer”.

Constant efforts to restrict payments thrived on a perception that everyone charged is guilty, and lawyers just muddy the waters and milk the system like “greedy pigs”, he says.

“That’s despite the fact I’m currently doing a (legal aid) case for a 92-year-old man for $134 an hour. But my charge-out rate for a private client is $750 an hour.

“I mean, $134 an hour – your mechanic’s charging that to fix your Honda Civic. A person who left school at 15 who puts tyres on my motorbike – they charge $90 an hour.”

Lithgow says the Crown knows how much lawyers are worth – when he’s asked to do work for them, he is paid vastly more than the legal aid rate.

(The maximum legal aid rate for defence lawyers is $178 an hour. By comparison, principal prosecutors contracted by the Crown are paid $309 an hour.)

Lithgow says he sometimes does cases for free, rather than bother with protracted wrangling with Legal Services and bickering over “whether photocopying was paid for, or whether you went to Upper Hutt twice instead of once’’.

“It costs you more to answer the letter than they are going to give you.

“It’s basic church committee methodology, where things are discussed in inverse proportion to their importance.

“They’ll argue about chocolate biscuits for staff for two hours, but they’ll agree to build a new church in 10 minutes. And that’s right through legal aid.”

Christopher Stevenson says because funding is strangled by Legal Services, or made so difficult, lawyers simply do not try to explore all necessary avenues for their client.

“The penny-pinching inevitably causes injustices. It becomes self-perpetuating – it’s just a grinding downward spiral to the bottom.

“The biggest problem is, we’ve lost the middle order at the defence bar – it’s just been eviscerated. And a large part of that is the dire state of legal aid.

“It’s such a shame – there are a lot of great lawyers who’d like to do criminal defence work, but just wouldn’t go near it because of legal aid. And of course, there are lots of people just walking away from it.”

The Government has recognised the crisis facing legal aid.

In the 2022 Budget, legal aid was boosted by $148 million over four years.

Rates for legal aid lawyers were increased for the first time since 2008, by 12%.

But Stevenson says while this is a sign of good faith and recognition that the system is underfunded, the actual change in legal aid remuneration would be nominal, and lawyers would remain reluctant to take on such work.

While no-one ever questioned the enormous sums spent by police and the Crown in their attempts to convict people, everything defence lawyers did was minutely scrutinised, Stevenson says.

In Fawcett’s case, “they spent millions – probably tenfold what we did – and convicted the wrong person.

“We untangled the mess and corrected the error for a fraction of the cost – that’s good-value stuff.

“But the defence is always heavily out-resourced and that means the citizen accused, sometimes incorrectly, of a crime, is behind the eight-ball.”