Where have all the lawyers gone? The shortage of civil legal aid providers

The Sunday Star Times, a nationally distributed paper, ran a story this weekend on access to civil legal aid. This was quite surprising (and pleasing), as it tends not be a headline grabbing topic. It was likely picked up from the article in this month’s LawTalk written by lawyer Steven Zindell, which uses statistics he obtained from an Official Information Act request (OIA). His piece in turn refers to a pilot project report about access to free and low cost civil legal help in New Zealand, which I co-authored with Assistant Research Fellow Kayla Stewart earlier this year.

Our report was meant to be an attempt to map free and low-cost civil legal services, but we found there were so few services it was not worth doing this exercise – civil legal help is that hard to find in New Zealand. There is legal aid available but only if you meet the very low income thresholds – $23K/annum for someone with no dependents. Even if you do qualify for a grant it is usually given as a loan and you may have to pay it back with interest. Having vaulted these considerable hurdles, you would then be faced with a further challenge – finding a registered provider to take the case.

It was reported in Parliamentary question time back in 2016 that the number of registered civil legal aid lawyers had decreased by 54 per cent between 2011 and 2016. In our study, we were surveying only Auckland and Otago where there are currently 150 and 20 registered providers respectively. In the audit we conducted we found that approximately a third of the registered providers were not in fact providing – they were not taking clients but had not taken their names off the register. Steve Zindell’s OIA said that “for the period 1 July 2017 to 13 June 2018 there may have been 464 listed civil lead providers nationally (including employment and ACC lawyers) but only 35 were doing five or more cases in that period”. This is evidence that even the number of the providers who remain (a hugely reduced number), greatly overstates the number of lawyers actually available to take a case on a legal aid grant.

In our report we also commented on the further hurdles:

Legal aid lawyers are not evenly distributed geographically, so people out of central city locations may find it difficult to access a lawyer. There is a very small pool of legal aid lawyers who can provide assistance in specialised civil areas, for example intellectual property, the example used in the report.

So I was a bit miffed to see Justice Minister Andrew Little reported in the Sunday Star Times as saying he was “aware anecdotally” that people struggled to find a registered provider and that this might be because their case lacked merit:

‘This does not mean that someone cannot find a civil legal aid lawyer, it means that their case is unlikely to succeed so a lawyer will not take it on.’

In addition to the possibility that he was calling our report and an OIA “anecdotal”, this quote also suggests a fundamental misunderstanding of how legal aid grants work: you can’t get a grant unless the Ministry say you’ve got a good case. I was therefore unhappy to see the old stereotype, usually reserved for self-represented litigants, being pulled out – “oh their case must lack merit” – rather than recognising the serious shortage of civil legal aid providers (and affordable practitioners generally).

Fortunately, the Ministry of Justice are currently undertaking a review of legal aid eligibility and are conducting meetings nationally with the profession. I went along to my local one (which was a very interesting discussion) and I was impressed by the Ministry officials who seemed genuinely engaged and interested in hearing about the issues at the coalface. Notably the meeting for civil and family providers was attended only by family providers. Hmmm, wonder why that was? Maybe some more evidence to add to the “anecdote” that there is a very real shortage of civil legal aid providers and that the few who remain registered are taking on how many cases? Not many, if any.

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