Duty lawyers are warning defendants needing their help will be the ones most affected if costs to compensate them fairly are not brought up to scratch.
The lawyers who are rostered on for work at district courts around the country have not had a substantial pay increase in a quarter of a century.
The lawyers are highly qualified and can represent people charged with anything from a drink-driving charge to homicide as they work through as many as 80 people a day on a District Court list.
Janine Bonifant from the New Zealand Law Society’s Criminal Law Committee said they were contractors, so could not unionise, but would likely start to take a stand on the issue.
“The Ministry of Justice and the judiciary are aware that we’ve got a crisis looming, and I don’t think that defence lawyers will do nothing about this. I think it’s very likely that there will be some form of action.
“Whether that is simply a mass withdrawal from rosters [and] we don’t want to do that, because fundamentally, these are our clients, these are the people that we are invested in helping. So it’s not a small thing for us to do, but I think there will be some action.”
Bonifant, who is a duty lawyer herself in the Porirua District Court, said at this point lawyers were acting with goodwill to fill the duty lawyer rosters.
“The rosters have been full and well-serviced for a long, long time. I have yet to find a duty lawyer that doesn’t get out there and get on with it and do their best to sort things as quickly as possible for people.
“But the reality is, $88 an hour, particularly if you’ve travelled to court and you’re paying parking and all of those things, we’re effectively not quite pro bono, but it’s bloody close to pro bono work and people can’t sustain that on a weekly basis.”
The rate was lifted by 10 percent in 2006 from $80 per hour to $88.
She said lawyers could simply earn more elsewhere.
“If they are working in firms, for example, they’re expected to be earning a lot more than that an hour and almost every other aspect of law, you can earn more than that an hour, even on our basic legal aid rates.”
She said the whole system was at risk of collapse if those who could do the work stopped agreeing to be on the roster, and new lawyers were not signing up.
“The people that walk through the doors that are facing charges, there’s a proportion of them that can’t read and really struggle understanding the system so without duty lawyers there to assist them through the process – explaining to them what their charges are, reading to them what the police are saying, making some decisions about whether legal aid should be applied for, whether it can be dealt with today, all of that would stop.”
“So the judge will have to do all of that and that will absolutely lengthen the time that somebody is before a judge … and there could be people that are eligible for legal aid that do not apply and do not get the help they need.”
“Having a conviction of any type entered against you will make it more difficult to get employment. We all know this. So it’s a big deal, regardless of what it’s for.” – Janine Bonifant
She said Saturday mornings were becoming increasingly difficult to manage.
“In Wellington certainly the Saturday morning rosters are now reliant on a core group of about eight lawyers to cover Saturday mornings for the Wellington cluster – that’s not sustainable, those lawyers shouldn’t be expected to go back every second Saturday to be in court.
“They don’t get paid more because it’s a Saturday. In fact, they are the only people in the courtroom that are working that are not paid time and a half and who do not get time in lieu.
She said Saturday courts were fundamental to ensuring smooth operations for the police and justice system.
“The police need to be able to clear the cells before the next onslaught of a Saturday night. So it’s even fundamentally managing the space that the police have available in the police cells over the weekend.”
Justice Minister Kiri Allan said a review of the Duty Lawyer scheme would get underway soon.
“It’s being established by the Legal Services Commissioner, which will look at all aspects of the service – including pay for duty lawyers. This acknowledges the professions’ concerns about hourly rates, while also looking at whether the service as a whole is operating effectively to ensure continued access to justice.
“I have asked officials to look at how any changes to these settings could be supported, as part of this review.”
She said a minimum payment policy for duty lawyers was introduced earlier this year, which means duty lawyers could now claim a minimum of four hours attendance on weekends and two hours on weekdays.
“This encourages lawyers to be available for Saturday rosters by ensuring a consistent, higher payment for their work. I understand that rostering and coverage for Saturday courts will also be a part of the duty lawyer review,” Allan said.
Bonifant said the minimum payment policy would have a negligible effect as lawyers would be there working for those hours anyway.
She said paying defence lawyers more was not politically “sexy” but urged the Government to think about the ramifications.
“Having a conviction of any type entered against you will make it more difficult to get employment. We all know this. So it’s a big deal, regardless of what it’s for.
“It’s important that we have a good group of people that are doing duty lawyer work.”