Law Society outlines concerns with legal aid provider contracts

“Gagging provisions” proposed by the Ministry of Justice for a draft contract for the provision of legal aid services are misconceived, the New Zealand Law Society says.

The Law Society has released its comments on the proposed contract, which would replace current contracts from 31 March 2012.

It says that in a number of respects the draft contract seeks to micro-manage the relationship between the ministry and legal aid providers.

“This approach is likely to create additional frustration and delays without conferring substantial benefits. The Law Society considers that such micro-management is unnecessary in the professional context and should be avoided.”

Several clauses are identified in the draft contract where there is “unworkable and undesirable” micro-management. These include low level cross-over work and leave arrangements.

The Law Society says the contract needs to recognise that legal aid providers are not civil servants “but are professionals entering into independent service contracts with the ministry”. It says it is “wholly inappropriate” to seek to impose civil service obligations in a contract of this nature.

“The Law Society is strongly opposed to any contractual obligation that infringes the New Zealand Bill of Rights Act 1990. It considers that the ‘gagging provisions’ proposed by the ministry are misconceived and have no place in the contract.”

In other comments, the Law Society identifies proposed clauses which are too broadly worded, would create unworkable situations, are unclear or meaningless, or ignore professional obligations.

A clause which would require providers to advise the ministry where inaccuracies are discovered in a legal aid application is also of concern.

“The Law Society considers that the application is made by the applicant, not by the provider, and providers should not be made responsible for the information provided by the applicant. The proposed clause raises issues of breach of privilege and breach of confidentiality, and the Law Society considers it raises more difficulties than it solves. It considers that the contract is not the appropriate place to regulate the correctness of applications for legal aid.”

The Law Society notes that the position of the Ministry of Justice is not clearly stated in the contract, with the ministry being referred to “every now and then” and occasionally being given a role to perform.