Once upon a time we characterized ourselves as egalitarian. Everybody got a “fair go” regardless of whether they were rich or poor, black or white. And in this happy land anyone who wanted an education could have one, everybody received the same high quality of health care, nobody was hungry, and should you require it, legal assistance was there for the asking. We believed, we said, that irrespective of class, wealth, skin colour, religion or gender all people were equal – deserving of the same opportunities.
Then that changed. To borrow and adapt the words of political satirist George Orwell, “These days all people are still equal. But some people became more equal than others.”
The growing gap
When the notion of equality shifts to embrace circumstance, those who live on the prosperous side of the more equal divide are alright. For those who don’t, they’re not, and the gap between “having” and “not having” continues to grow.
Headlines over the last few years reflect the current status of legal aid.
- Fewer lawyers willing to do legal aid – Radio NZ 2016
- Six of eight legal aid offices to shut – Radio NZ 2016
- Govt’s $96m legal aid boost questioned – Radio NZ 2016
- Mind the Gap – closing the justice gap – Law Society 2015
- Legal aid funding limits create a “justice gap – Stuff 2014
They’re an echo of similar ones about child poverty, or the state of education. The plight of legal aid is yet another mirror reflecting how far we have strayed from the egalitarian myth.
Against that back drop a firm in sunny Nelson makes it its business to take on the clients that other don’t: Zindels.
Making legal aid pay, the Zindel way
Steven Zindel, Senior Partner, is of the opinion that the legal profession has an obligation to “make legal aid pay”. We, he says, have to make the system work as it’s part of our social duty as lawyers.
Legal aid, he says is vital for a fair society. Anybody who finds themselves involved in a dispute of any sort must have access to the means to resolve them correctly – that is, according to the rules of the society they live in. When people don’t have access, says Steven, we risk compromising the essence of what sustains us – our society.
The lack of equitable access undermines the rule of law which in supports society. Law, he says, is both the safety valve and the regulator of a civil society. When it is genuinely available to all it prevents people from losing faith in the society they live in, stops them from taking the law into their own hands, and ensures the right people are convicted and imprisoned.
That’s a view he shares with Her Honour, Justice Helen Winkelmann, Chief High Court Judge who said in her Ethel Benjamin Address “Access to Justice – Who Needs Lawyers?” (7 November 2014), “Unless we have this access, we will live in a society where the strong will by any means, including violence, always win out against the weak. This will be a society in which, once binding civil obligations, are recast as voluntary.”
The growth of self representation
A secondary concern is that as access becomes increasingly difficult a growing number of people are choosing to represent themselves. Steven says that brings multiple challenges affecting everybody concerned. There’s slowing of court procedures through unfamiliarity, narrowing the range of options through lack of knowledge … However he says the growth of self representation is also a loss of opportunity to the legal community. We lose, law loses and ultimately society loses through not having a chance to represent all who need or want to be.
The commoditizing of legal aid
Legal aid, says Steven, was originally designed to protect, serve and nurture our society – inclusively. He considers that what we have now increasingly dehumanizes both the people who use legal aid and the service. The fixed fee system says Steven has commoditized it. Instead of seeing clients, we see customers.
The knock on affect is that because we are paid for “out puts”, discrete units of work, rather than by time and for the quality of the process, it is possible to game the system – to be inefficient, to waste time and still be paid. That, says Steven, encourages cherry picking, and corner cutting. It supports mediocrity as there is no real incentive to perform well for either the client or oneself.
Fewer lawyers take on legal aid clients
One of the results of the current system, borne out by recent a recent Law Society survey, is that fewer lawyers are willing to take on clients who are dependent on legal aid.
At present, says Steven, the complicated administrative process coupled with a low fee structure makes legal aid unappealing and uneconomic. Senior lawyers in particular, says Steven, are paid much better in the private sector. In addition the range of cases workably supported by legal aid these days is very limited. For instance, he says, there are very few civil cases. They seem to him to have slipped right off the radar which he finds depressing. He says the main reason behind their absence is that the hoops that must be jumped through to establish eligibility are in themselves a mini trial and there might be no payment at all if legal aid is ultimately refused. That risk is compounded by making decisions to grant legal aid on a case during its early stages which in turn compromises any prospect of success. Steven says discovery might flesh out some of the allegations or shed more light on credibility issues which have been difficult to determine on the papers, but getting to that point is unfortunately increasingly unlikely. He says the result is that the collective confidence in our justice system seems to be eroding.
A return to time based fees, use of the cloud & allocation changes
Steven says he’d like to see a return to time, rather action based, fees and thinks perhaps then proper trial preparation might once more become attractive if that happened. He says rigorous auditing by practitioners who know how long it takes to perform a typical activity would curtail any abuse. The present fixed fee, he says, is very low for what might be an 18 month process, and serves to discourage rather than encourage lawyers to accept cases.
Along with a change in fees, Steven would like to see more effort made toward developing internet based services – something discussed in detail by Judge David Harvey. (Law Talk: Closing the gap using technology ). That would lead to greater efficiency, he says and he’d also like the random allocation of lawyers to defendants with whom they may have no association to change. He wants the old system where clients could choose their Counsel returned, particularly for criminal cases. It was, he says so much more efficient as well as better for the quality of the relationship between lawyer and client. The present practice he says, can lead to nonsensical situations like a conveyancing lawyer dabbling in legal aid to top his or her income while being unaware of all the issues involved. It’s a situation, he says, where no one is served well.
Junior staff and legal aid
A significant point of difference between Zindels and other law firms is their conscious decision to take on and mentor junior staff through the legal aid labyrinth. Despite being “uneconomic” Steven is committed to giving young solicitors an opportunity to develop skills – to experience firsthand the full spectrum of our society.
He believes senior lawyers, like himself, actively need to take on younger people and says that if they don’t pick up mentorships, or willingly function as role models then graduates will go into whatever other area is open to them – including disappearing overseas. We are, he says, at least partially responsible for the attrition.
That said it would make it easier to attract young people into legal aid if they were allowed to work and get paid from the beginning. He says the lengthy accreditation process typically means waiting eighteen months after admission before they can take responsibility for a case. Removing at least some of the hurdles would help!
Zindels employs three young solicitors all of whom work extensively with legal aid clients.
Jessica Gully, admitted to the Bar in 2014, says that she is privileged to work alongside Steven. She admires the firm’s philosophy – access to justice for everyone, and says being able to work in areas not directly tied to billing gives her freedom to really learn. She describes her last couple of years with the firm as a whirlwind ride. The majority of her work has been legal aid with much of it coming through her local Community Law Office or Women’s Refuge. She regards this work as a duty – part of the role she accepted when she became a lawyer. Making a difference and accepting a responsibility to protect those who are vulnerable is important to her.
Legal aid provides opportunities for young lawyers to gain experience whilst fulfilling their social obligations
Jessica’s experience raises questions. She wants to know why practitioners are not doing more to solve the problems of unequal access to justice. Why is it, she says, that they don’t ask themselves the question, rather than looking to the government to solve it?
Jessica is convinced people could do more if they chose to. As part of that she advocates finding a way to work with fixed fees and developing flexible streamlined systems that adapt to circumstances. That she says would be preferable to tossing all legal aid work aside as being too difficult to deal with. As an example of a firm adapting and making use of technology to reduce costs she cites Christchurch family law firm Ebborn Law who have developed a suite of legal services available via the web.
Another of her concerns is what happens to people who don’t get the representation they need. She says she’s been told by clients you’re the eighth lawyer I’ve called! Do they attempt to represent themselves? What happens if they don’t have access to the tools they need for research – a computer, the internet?
While she doesn’t have the answers, Jessica is pleased she can immerse herself in meaningful work. Legal aid, she says provides opportunities for young lawyers to gain experience whilst fulfilling their social obligations.
Abigail Goodison’s hometown is Nelson. In her final year of study she began at Zindels as a summer clerk to research legal aid and then became a permanent member of staff in 2016.
Like Steven and Jessica, Abigail is deeply concerned about fairness wanting justice available to everybody. What she really enjoys about working with legal aid is the variety. There are so many interesting cases she says, particularly in the civil area. She says it’s a pleasure to look into situations and to find adaptive, creative and realistic solutions for people. She loves having the opportunity to make a practical and positive difference.
Jumping unnecessarily high billing hurdles takes the shine off doing “good” works.
There have been challenges, she says, dealing with the lack of flexibility around the administrative aspects of legal aid. For instance she found the time spent getting hours allocated and then sorting the different fee rates between a law clerk and an admitted person unnecessarily difficult. Fortunately that aspect of her work is over now, as she was admitted in September.
Abigail agrees with her colleague Jessica that legal aid provides opportunities that would probably not arise in a practice driven by meeting billing targets. We have more freedom she says to take on interesting cases which may include going beyond fixed fees and applying for more funding if needed.
One of the areas Abigail works in is ACC legal aid and because there are not many providers offering that expertise the service draws people from all over the country.
In her opinion the fixed fee system is workable because the difference between working on legal aid and in a private capacity is not that great as a junior. She says she understands how the gap widens as a lawyer becomes more experienced and how at a senior level, it creates retention issues.
The danger for lawyers, she says, who begin in legal aid is getting mired in its complicated bureaucracy which frustrates them to the point of stopping. That, she says, and time wasted on jumping unnecessarily high billing hurdles takes the shine off doing “good” works. According to her the result is a double blow: robbing the good will of the lawyer, and denying a client.
Right now, Abigail says, she’s very happy with what she does. She enjoys knowing her work is valued and that it makes a positive difference. Like the rest of her team she is looking forward to seeing what the latest “streamlined consolidated” approach to legal aid delivers.
Sophia Barclay is a relatively recent arrival in Nelson. She joined Zindels in 2014 just before being admitted to the Bar. 90 – 95% of all her work is legal aid funded and like Abigail, she has developed ACC as an area of speciality alongside her work in criminal, family and civil areas.
Sophia too is passionate about the opportunities working in legal aid offers her as a junior. She works she says in interesting areas, and is delighted to be able to help people stand up to large organisations of varying sorts and have their voices listened to. It is a privilege she says to assist and guide clients through the system.
It’s a privilege to assist and guide people through the system.
However her positivity sits side by side with the frustrations her colleagues have already mentioned: the harrowing amount of time lost in dealing with red-tape. The current system she says does not make it easy for people to work in legal aid. The recent closure of her local Legal Aid office is yet another challenge. Like her colleagues, she wonders what that will mean for her clients and herself and is particularly concerned about with the loss of trusted working relationships.
At the time of preparing this article the intention to reduce the number of legal aid offices from eight to two was announced. The promise that this was done to improve the service did little to allay the apprehension it roused. Steven says it is hard to interpret the closures in any other way other than as yet another attack on an already beleaguered service. He is particularly concerned the closures will lead to more inefficiencies. He says they were done without thorough consultation and that the consolidated model of service is yet to be proven.
Despite the frustration of working in legal aid Steven says he will continue. It is a non-negotiable tenet underpinning his decision to go into law in the first place.
What is laudable is that despite obstacles, provocation and poor pay we have people determined to make the system work. For their belief that everybody and anybody should be able to equally access quality legal guidance they are prepared to find work-arounds, to adapt. The collective will at Zindels that legal aid must survive is strong.
For more on the current plight of legal aid:
- Frances Joychild QC – Continuing the conversation …The fading star of the Rule of Law.
- James Greenland – Mind the gap – Closing the Justice Gap
- Steven Zindel – Legal aid – Red tape lament
For a guide to criminal and civil legal aid in NZ – Brookers Legal Services – Available online and in looseleaf. Steven Zindel is one its authors.