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Fees have been stagnant for more than 10 years while the number and complexity of cases has increased. It’s no wonder private practitioners have had enough.

Imagine you are the principal of a law practice in rural NSW. You take on a complex and ongoing family law matter through legal aid, based in a court about three hours away. You and your paralegal spend three days preparing for court, filing the affidavits and making telephone calls. You attend court in person for two full days and send an agent on three others. There’s no doubt you’re doing a good thing – the client really needs your skill and expertise because it’s a complex family law matter – but the costs of providing the service will outweigh the remuneration you receive.

It sounds like a problem from a high school mathematics exam – if Lawyer A spends X amount of time on a matter and is paid Y in fees, how much did Lawyer A lose? The trouble is, this is a real-life example, shared with LSJ by Horst Merten. He’s the principal solicitor at Mertens Lawyers in Wee Waa, a town of about 1,500 people located in northwest NSW, and the matter in question was held almost 300km away. It reflects the experience of many rural lawyers.

“A case like this is a financial disaster for [a] country practitioner,” he says. “At least I had a nice coffee in Dubbo.”

When enough is enough

For 15 years, Merten has been the sole private practitioner providing legal aid services at the Wee Waa Local Court, diligently attending every single month to assist local community members. 

He withdrew his legal aid services in December, saying it was a long-term decision about the nature of his practice. He’s looking forward to investing more time into property and commercial areas.

However, funding the work has been an issue, especially as his office employs six staff members.

“I don’t mind doing a bit of subsidised work, and if a person is genuinely in need of a legal service, I’ll provide it,” says Merten. 

“But doing large amounts of legal aid work takes you away from your private clients and the income you need to run your office and pay your staff.

“There are six families that rely on the income this office generates. 

“If I’m doing work that costs me money and I’m losing clients who bring income to the business, I am threatening the jobs of my staff and their families’ wellbeing.  

“That has all been part of my decision-making process.”

On the brink of crisis

Legal Aid NSW currently pays solicitors a flat rate of $150 per hour and it’s been that way since 2007. 

According to NSW Shadow Attorney-General Paul Lynch, who himself provided legal aid services at Campbelltown Local Court back in the early 1980s, it’s a “developing crisis”.

“Without private practitioners, legal aid simply can’t be delivered to a significant proportion of the state,” he says.

“The fear is that in the future there will be fewer and fewer private practitioners prepared to do this work, and what happened in Wee Waa will be repeated.”

Law Society President Elizabeth Espinosa agrees the hourly rate must be addressed “urgently”.

“In our view, it’s the solicitors who are working additional unpaid hours that have kept the system going for so long, but this is no longer sustainable, and the system is breaking down,” she says.

“The result is that the people at the lowest end of the poverty threshold, who are struggling to deal with family violence, criminal and debt matters, will have limited access to legal advice and services.”

Demand is increasing

Demand for legal aid is increasing. According to Legal Aid NSW’s 2017-18 Annual Report, the organisation provided some 39,385 legal representation services, as well as 197,038 duty services and 34,277 minor assistance services. The figures show all services have increased over the past five years. Private lawyers provided almost 44 per cent of these case and duty services.

The client profile is relatively stable. About 14 per cent of clients are of Aboriginal or Torres Strait Island descent, while about 12 per cent are born in non-English-speaking countries. About 29 per cent of clients are female and about 15 per cent are under the age of 18.

“In our criminal law area, the number of people coming into the justice system has increased exponentially in the last five years,” says CEO of Legal Aid NSW Brendan Thomas. “Prison populations have gone through the roof, the number of people going to court has gone up.”

“And not only that. What we’ve seen in the last five years is a shift of people coming to court for more serious offences, so for example we’ve got a greater proportion of child sexual assault matters or trafficking commercial quantities of drugs.”

Thomas says Legal Aid NSW is working hard to streamline its onboarding process, rolling out a client triage model with the intention that each incoming client will only have to tell their story once. It’s also automating processes relating to applications and grants and investing in local services.

For example, the Dubbo office – which takes matters as far away as Bourke and Lightning Ridge in the state’s northwest – last year saw a strategic boost with the addition of several new staff members, including two Indigenous workers to assist in new satellite offices in Bourke and Walgett.

“We’re so fortunate that we’ve got such a committed legal profession in NSW where my sense is people will do almost anything to make sure legal aid clients are getting a proper service, even to the point where they’re losing money out of it,” Thomas says.

“It’s an inspiring thing to see, but we can only rely on that goodwill for so long.”

Horst Merten Horst Merten

There are six families that rely on the income this office generates to support their families. If I’m doing work that costs me money and I’m losing clients that bring income to the business, I am threatening the jobs of my staff and their families’ wellbeing.

Long road to justice

The trouble is that not all costs are created equally, and the solution is not as simple as raising the fee. Figures from the 2016 Census indicate the state currently has about 7.95 million residents. Of those, roughly 64.5 per cent live in the Greater Sydney area.

However, even though the majority of citizens live in the city, about half of all legal aid matters occur in rural and regional parts of the state, where distances are great and resources are sparse. Eric Craney, Principal Solicitor at Doyle Kingston Swift Solicitors in Broken Hill, spoke to LSJ after driving 300km back to his office from a court appearance at Mildura. It’s a rural city of about 30,000 people located on the Murray River, just over the Victorian side of the border. 

As Craney’s client lives just over the NSW side of the river, it was the most convenient court for the matter to be heard. Even though he’s three hours away, Craney is one of the closest practitioners.

He drove down on Sunday afternoon, because he can’t get to court on time if he leaves on Monday morning, and was in Mildura for three days. He appeared in the call-over on Monday morning, and the matter was pushed to Tuesday. He appeared in the call-over at Tuesday lunchtime, and the court hearing was pushed until Wednesday. On Wednesday afternoon, the court decided the matter would simply have to wait.

The matter, which is an ongoing parenting case seeking final arrangements for three children, has now been pushed back to July – provided there aren’t more urgent matters by that point which take priority.

“It’s pretty ordinary,” Craney says. “We make it sustainable. We don’t do it for the money. The fact of the matter is that these parties need representation in some shape or form, so we continue to do it.”

Trouble with the obvious solution

To cope with demand and supplement the provision of legal services in these areas, Legal Aid NSW often engages city-based private practitioners to travel to regional courts and assist local clients.

That responsibility falls on people like Mariah Maltezos, a criminal lawyer with about 10 years of experience who works as a senior associate at Longton Legal in Parramatta.

Maltezos currently has a murder trial running at Gosford, on the Central Coast, through legal aid. She previously has taken on matters as far away as Mudgee, Forster, Port Macquarie and Albury. She too is concerned about low fees, and says even in larger firms they discourage lawyers from accepting legal aid briefs.

“I think a lot of practitioners who are currently on the panels do not take work, knowing this is going to take more time than it’s worth because of the funding that is offered,” she says.

“Generally, defended hearings funded under legal aid are not simple matters. There could be forensic procedures, complex legal arguments, subpoenas to be filed, mental health or fitness issue assessments and related reports to be arranged. I’ve seen [that] in colleagues it’s a deterrent factor.”

Difference between regional and remote

There is, of course, a difference between being remote or rural and being regional.

David Davidge, Principal of his own firm in Griffith, has been practising law since 1994. He grew up locally and returned to the area after he completed his law degree at the University of New South Wales.

“Access to law is an essential service, and in an environment where a lot of services are retreating from regional areas, we’re lucky that there are still regionally-based legal practitioners,” Davidge says.

“Everybody is being asked to do more with less, and I appreciate that Legal Aid NSW has to get a restricted amount of money across a broad area. My view is that we have to work collectively to apply the funds as best we can.”

Griffith is a town of about 18,000 people in the Riverina and is far less remote than Wee Waa or Broken Hill. Davidge’s travel footprint extends about 200km to the local correctional facility, 190km to Wagga Wagga, 280km to Albury, and up to 150km to the local courts.

“Travelling 45 minutes to Leeton or an hour and a half to Hay is something that can be incorporated into my day,” he says. “If you’re travelling to courts a substantial distance away, that’s a big commitment, especially if you don’t have other work there. For me, even the smaller courts like Hay are relatively busy.”

However, Davidge notes that more resources would only improve the experience for solicitors and clients alike.

Legal Aid Crisis Statistics

Finding the answers

In the most recent budget, the NSW Government allocated an additional $10 million in funding for Legal Aid NSW to pay solicitor and counsel fees under the early guilty plea reforms. However, this funding is limited to committal matters at the Local Court stage and does not cover fees for trials or appeals.

“While the funding is a step in the right direction, it does not address the Law Society’s overarching concerns,” says Law Society President Elizabeth Espinosa.

“If the hourly rate and timescales for undertaking legal aid work are not increased urgently, we will continue to see experienced solicitors reluctantly withdraw from legally aided matters.

“This will result in the ‘juniorisation’ of legal aid work and a diminution in the quality of legal aid matters. There is a risk that the mixed-service delivery model will collapse due to insufficient numbers of private practitioners undertaking legally aided work.”

NSW will head to the polls for the state election on Saturday 23 March, and Espinosa says it’s important all political parties commit to increasing the rate by at least $100 per hour, as well as promising future CPI increases and funding for preparation time.

Technology is another thing that will help secure the availability of legal aid. For one thing, the increasing amount of good legal information made available online by organisations like community legal centres is an important part of the community education process. It also increases access to justice, as people can find out where to go for help.

Legal Aid NSW is investing heavily in technology. It is equipping all lawyers with mobile devices and developing a strong network that supports essential services like prison interactions. This is critical in providing services to individuals in remote locations. 

Meanwhile, courts are also embracing technology that allows lawyers to make appearances over the phone and submit documents online. 

Bail courts in particular make the most of audio-visual link technology by allowing prisoners to appear without having to travel. 

However, the courts face obvious limitations with technology when it comes to defended or custodial hearings, or matters that involve questions about capacity, as in these circumstances there is still no substitute for face-to-face interactions. It’s not the solution, but it’s one step towards reducing the tyranny of distance.