The rapidly deteriorating legal aid system is in urgent need of reform but we must also prioritise true access to justice and ‘more lawyers’ isn’t always the solution, argues Dr Bridgette Toy-Cronin
Few things are less likely to stir public sympathy than lawyers asking for more money. As such, the New Zealand Law Society’s warning that legal aid is on the verge of collapse and urgently needs more funding might quickly be dismissed as more lawyer greed. The problem, however, is real. As their new survey highlights, an acute shortage of legal aid lawyers in New Zealand means we are facing a massive crisis in access to justice.
Many assume that if they are in legal trouble – in a dispute with someone or charged with a criminal offence - then they’ll be able to get a free lawyer if they can’t pay. The reality is very different. The amount you can earn before being considered “too wealthy” for legal aid (the threshold) is very low. For some types of legal aid, you need to be a beneficiary to qualify. Even if you do qualify, legal aid is a loan that has to be repaid if you do have assets. If you are in a civil dispute - over the care of your children for example - finding a legal aid lawyer can involve a long and dispiriting search. Over and over again I hear stories of people spending whole days calling through lists of lawyers and finding no one to take their case.
The number of legal aid lawyers has been declining for many years, driven by a combination of the low pay and administrative burdens. It is a warning that many, myself and colleagues included, have been sounding for years. This new survey further highlights the extent of the problem. Three-quarters of the current legal aid lawyers have turned away people seeking legal assistance. In the last 12 months, half of all legal aid lawyers have turned away 11 clients or more. Extrapolating this across all legal aid lawyers gives a figure of some 20,000 people who have been told “no” when seeking help with their legal problems.
Not everyone who gets a law degree can set themselves up as a legal aid lawyer. It requires special certification. This process is meant to protect the quality of the service provided, but it comes with a cost. Many lawyers do not think it is worthwhile to meet the administrative demands to maintain certification. There are only 3111 lawyers approved to provide legal aid and that is for all areas of law: family, criminal, and general civil assistance. Of those, a third or about 1000, are not taking cases. And a quarter of those who are doing legal aid now plan to give it up or do less next year.
The burdens of providing legal aid fall unevenly across the profession. While the popular image of lawyers involves glittering offices, fast cars and expensive suits, the part of the profession that deals with people in personal distress is a long way from that stereotype. Think more Atticus Finch, less Harvey Spector. The Law Society’s survey highlights that those most interested in providing legal aid are young and inexperienced. While this is admirable, it is a real concern that 84 percent of those who have been in the profession for 20 years or longer are not interested in providing legal aid. The most vulnerable in our society need experienced lawyers; they should not be a training ground for new lawyers.
Legal aid work needs to be more attractive to lawyers and needs to be available to more people. The knock-on effects for our society of leaving people without legal assistance are huge. The criminal courts, already groaning under the strain from Covid delays, will suffer further delays as defendants wait for a lawyer. That means witnesses and victims waiting and waiting for the case to be resolved, and even cases being dismissed due to delay. In family law, children continue to grow and change as parents wait for access to a lawyer to help them navigate a dispute over their care with their former partner.
Our problems with access to free lawyers is so acute that legal aid needs more government funding right now. But let’s be clear. While the survey is titled an “access to justice survey”, the problems we face in New Zealand will not be solved just by getting more lawyers involved. What true access to justice really requires is people being able to solve their civil disputes in a way that is consistent with their legal rights and responsibilities. For people accused of crimes, it is ensuring that people are prosecuted fairly and their rights protected. The focus needs to be on questions like: how do we protect and support people, and what help do they need? The answer is not always “give them a lawyer”. Access to lawyers is only part of the problem, so providing that can only be part of the solution.
At the same time as providing emergency first aid to the legal aid system, we also need to be looking at other solutions. I have previously canvassed some of the many other options we need to examine for civil disputes: changes in the regulation of the profession; better business models for the delivery of services; and changes in dispute resolution methods. Lawyers who were interviewed for the Law Society survey point to the need to solve the underlying drivers of legal problems including mental health problems, homelessness and addiction. Possibilities include solution-focused courts, of which we have some excellent models operating in New Zealand, and health-justice partnerships - a model used in Australia which looks at solving health drivers of legal problems. Overseas there are promising models being developed for non-lawyer services and harnessing technology to provide self-help remedies.
People will continue to need lawyers’ help for a range of problems and we need to ensure they have that access when it really is required. That is why I strongly support the Law Society’s call for urgent reform of the legal aid system. But we can’t pretend that will solve all the access to justice problems we face. Any lawyers arguing that more lawyers is the whole solution can rightly be accused of being self-serving. We also need systemic change to solve a systemic problem.
