29 Nov 2009

Maori lawyers doubt Treaty legal aid rort

6:37 am on 29 November 2009

The Maori Law Society says it doubts claims that lawyers could be double- or triple-dipping into money available for Treaty of Waitangi claims.

In a comprehensive review of the legal aid system, Dame Margaret Bazley says there's too much scope for lawyers or claimants to get money from more than one organisation at the same time for the same Treaty claim.

But the society's co-president, Joelene Patuawa-Tuilave, says there's a misconception about which parts of Treaty work are funded by different organisations.

She says the only funding available to claimants going through the Waitangi Tribunal claims process is legal aid.

Dame Margaret has also recommended the Government look into providing temporary childcare for court users.

She says while undertaking her review, she was appalled at the sight of young children whose parents were appearing in court.

She says courts are no place for children and comforting your mother as your father is taken away to prison is a responsibility no pre-schooler should have to bear.

Dame Margaret also wants the Government to re-prioritise social expenditure to allow certain services to be set up in courts.

"I believe that a large percentage of the people coming into the court system are already very high users of social spending.

"I'm certainly not suggesting more money be put into them; I'm suggesting it be reassessed and spent better."

86 recommendations in sweeping review

Dame Margaret's review found that the legal aid system is being abused by an estimated 200 "incompetent and unscrupulous" lawyers and that major changes are needed because the damage inflicted by incompetent and unscrupulous lawyers on their clients and the wider system is too great.

Dame Margaret says she's surprised the legal profession has allowed the situtation to go on as long as it has.

She has made 86 recommendations to the Government, including that the Legal Services Agency, which administers legal aid, should be moved into the Ministry of Justice.

The Law Society says underperforming or corrupt lawyers will be removed from the legal aid system within three years.

President John Marshall told Checkpoint a recently introduced tribunal as well as action on the review recommendations will weed out offenders.

Justice Minister Simon Power says he was shocked when Dame Margaret talked to him about the discoveries in her review. He says the problems are worse than he first thought and Cabinet will consider some of the recommendations on Monday.

Labour Party justice spokesperson Lianne Dalziel says a shake up of funding arrangements is among the many changes that need to be examined.

Lawyers challenge some findings

Prominent defence lawyer Gary Gottlieb believes the estimate of 200 lawyers abusing the system is a little high but says concerns have been raised with the Legal Services Agency about a number of lawyers and little appears to have been done.

South Auckland barrister Ted Faleauto says a suggestion in the report that most lawyers practising in the Manukau District Court are corrupt is based only on gossip and rumour.

He told Checkpoint most problems at that court stem from a high caseload and a lack of resources.

Poor practices identified in the report include:

  • Lawyers making sentencing submissions without having read the pre-sentence report
  • Lawyers repeatedly failing to turn up to court
  • "Car boot lawyers" using a district court law library phone number as their office number and appropriating interview rooms in the court for offices
  • Lawyers delaying a plea or changing pleas part-way through the process in order to maximise legal aid payments - Dame Margaret says she was told that up to 80% of lawyers practising in Manukau District Court could be "gaming the system" that way
  • Lawyers who demand or accept "top-up" payments from clients who do not understand that the Legal Services Agency pays the entire bill
  • Widespread abuse of the preferred lawyer policy by duty solicitors, such as taking backhanders for recommending particular lawyers to legal aid applicants

The 86 recommendations for changing the legal aid system include:

  • Disestablishing the current Legal Services Agency and moving its functions into the Ministry of Justice
  • Lawyers to be accredited before they can provide legal aid services and thereafter reaccredited every three years
  • The Law Society, the Legal Services Agency and the Ministry of Justice to work together to ensure the competence and integrity of the legal profession
  • The Public Defence Service to be used in Auckland, Wellington, Christchurch and other centres where there are problems with the quality of legal aid services
  • Bulk funding of groupings of lawyers to provide legal aid services, headed by senior lawyers with appropriate infrastructure and supervision measures
  • Legal aid remuneration rates should be reviewed (and transparent) but no parity with Crown Solicitors should be expected until issues of the quality of the legal aid system is resolved
  • Case management of clients who have repeat applications and costly cases
  • Applying for legal aid to be made easier to understand and cheaper to administer, so applicants don't need a lawyer to fill out the form
  • Streamlining applications so beneficiaries and community service card holders who clearly fall into the eligibility criteria can easily apply for legal aid without facing payback option
  • The Government to urgently clarify funding streams for Treaty of Waitangi claims so there is no double-dipping, since other funding for such claims exists, such as Crown Forestry Rental Trust and the Office of Treaty Settlements