Major exodus of family legal aid lawyers will follow fixed fee introduction

A proposal to introduce fixed fees for family law legal aid will create real problems in finding suitable lawyers to provide family legal aid, the New Zealand Law Society says.

In its submission to the Ministry of Justice on the proposed new fees framework for family legal aid providers, the Law Society says it has warned the ministry over several years about the declining number of family lawyers prepared to deliver legal aid services.

The chair of the Law Society’s Family Law Section, Antony Mahon, says the 2009 Bazley report on legal aid noted a difficulty in finding family legal aid lawyers.

“Three years on, the current proposal will result in an irreversible exodus of family lawyers from the legal aid system,” he says. “This will have major consequences right across the Family Court, social services and the legal profession.”

“In preparing our submission we surveyed 764 family lawyers – 66% of all family legal aid providers. What is alarming is that over 72% said they would significantly scale back or cease legal aid work if the fixed fee proposal in its current form is introduced.”

Mr Mahon says that while the ministry believes there are enough lawyers, it is basing its assumption on a misunderstanding. Research shows that many lawyers reapplied in 2011 to be legal aid providers either to continue to act for existing clients or without knowing details of the fixed fee proposals.

“All New Zealanders should consider the flow-on effects of what is proposed. Fewer lawyers means more self-represented people in the Family Courts. This means more delays and cost. Cutting the time lawyers can spend on a matter also means fewer family disputes will be resolved before they get to court.”

The whole concept of legal aid is to ensure people with insufficient means receive efficient and effective legal services. In the field of family law, there is the additional factor of the interests and protection of children who are drawn into disputes between adults.

“The Family Court has mechanisms to ensure children are represented and everyone gets justice whether rich or poor. Chop back the funding and greatly reduce legal representation and we are going to end up with a two-tier justice system which is totally contrary to the objectives of our Family Court system,” says Mr Mahon.

He says the Law Society believes there are a number of ways in which the government’s aim of reducing expenditure on the justice system can be achieved. However, the current approach is piecemeal and the government needs to take a far more holistic view of the family law area.

A major review of the Family Court is already underway. Input from the Law Society and other groups has identified significant savings, and the Law Society strongly recommends deferring introduction of fixed fees until the review is complete. Endangering key institutions and sectors of New Zealand society through the current “silo” approach is irresponsible.

The need for adoption of a strategic Big Picture approach is also apparent with other potential savings such as a more stringent application of the merits test (again recommended by the Bazley report), exclusion of some types of proceedings from legal aid eligibility and greater use of technology and other facilities in Family Court proceedings.

Mr Mahon says the ministry should also consider using a staged approach to rolling out fixed fees and take another look at the data it is using for its assumptions.

“It’s quite clear that the ministry’s calculations are out of kilter with the real costs of a family legal aid case. Our submission provides a lot of detail on the costs faced by legal aid lawyers which the ministry should consider. If it doesn’t, we are looking at a big drop in lawyers available to provide legal aid in the family law area.”