Lawyers can earn up to 500 per cent more if they get clients to plead guilty at their first court appearance under new legal aid rules, a barrister claims.
Auckland barrister Lapa Laubscher argues the fee structure creates a potential conflict of interest for lawyers, and something needs to change so the public can be confident the system is fair.
Laubscher said he had worked out that under the new legal aid fixed fee system, introduced earlier this year, it was 531 per cent more lucrative for lawyers if their client pleaded guilty at the earliest opportunity.
When a defendant pleaded not guilty at their first appearance, their lawyer would effectively earn $300 per hour.
But if they pleaded not guilty and the matter was decided at a defended hearing the lawyer would earn just $56.47 per hour, Laubscher said.
"That must be an incentive and much as lawyers would like to say 'we're above that, we act in the interests of the clients, we put our own interests aside', you know, I just think it should be apparent for a member of the broader public looking at the whole system that this is a fair system and legal aid dispensed to legally aided people is dispensed in a fair and equitable way.''
Laubscher said he would expect and hope that lawyers would not try to rort the system by trying to get their clients to plead guilty early in their cases' progress.
"But I believe that to put that temptation there is not good. There might be a subconscious tendancy not to be totally independant in the advice you give to your clients."
This situation applied for the bulk of legal aid work, including judge-alone hearings, and cases where the maximum sentence was less than two years' imprisonment.
Laubscher said he understood the government was trying to find savings in tough economic times.
"If we say in this country that we want to give access to justice for all, there is unfortunately a price to be paid. If we're not willing to pay the price we may say 'well perhaps we should narrow the level of the access we give to legal representation and justice to all'. That's a debate one needs to have."
Ministry of Justice director of legal aid services Michele McCreadie said lawyers had a responsibility to act in their clients' best interests.
"Under the fixed fee payment system for legal aid lawyers, practitioners are paid for the completion of activities undertaken in each legal aid case.
"This payment framework recognises that, though few cases are identical, the majority move through well-defined stages. However, if the client or the nature of the case makes it particularly complex, there is the opportunity for payment to be managed on a different basis."
- © Fairfax NZ News
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