Survey highlights private lawyers’ vital role in legal aid but warns of looming exodus

The survey sends a clear message that fees need to be increased to retain competent and experienced private practitioners doing legal aid work. Private lawyers undertake more than 70 per cent of all legal aid representation services, and therefore play a critical part in the delivery of legal aid. They are highly committed to that work, but the system is straining under a lack of resources. The survey shows many private lawyers plan to stop doing legal aid work because the fees do not sufficiently cover their overheads.

The Legal Aid Private Practitioner Census, conducted by National Legal Aid, received more than 1,000 responses, including 348 from lawyers in NSW. The results are very insightful and helpful for Legal Aid NSW.

Responses to the census clearly demonstrate the high level of commitment of private practitioners to legal aid work. They recognise its importance to clients and the community, providing access to justice and making a real difference in people’s lives at a critical point. Legal aid work also provides the opportunity for lawyers to work on a variety of interesting and challenging matters across civil, family and criminal law.

The survey shows most private lawyers undertaking legal aid work are sole practitioners or in very small practices. NSW has a higher-than-average share of small law firms doing legal aid work. Of the firms that do legal aid work in NSW, 45 per cent are sole practitioners and 29 per cent are practices with just two to four people. 60 per cent of private practitioners doing legal aid work are female, increasing to over 70 per cent in younger age groups. A high number of lawyers have been doing legal aid work for many years, with 24 per cent of NSW respondents having done it for over 20 years and a further 28 per cent doing legal aid work for more than 10 years.

The census respondents were from firms in metropolitan and regional areas. NSW had the highest proportion of respondents working only outside their state capital city (41 per cent). Private lawyers play a particularly critical role in ensuring people in regional and remote areas, where there is not a legal aid office, have access to a lawyer in that community.

The main areas of practice for lawyers doing legal aid work were domestic and family violence, summary crime, family law and indictable crime. High numbers of lawyers had acted for clients in one or more of the national legal aid priority client groups, such as clients experiencing domestic and family violence, people with disability or mental illness, and Aboriginal or Torres Strait Islander clients.

Despite the commitment of lawyers to delivering legal aid services, the census outlines serious challenges facing lawyers doing legal aid work. The biggest challenge identified in the census is the relatively low level of remuneration. This takes several forms, including low hourly rates, the amount of work which is not remunerated as legal aid grants do not cover all the work to be done, the complexity of the matters, and the multifaceted needs of many legally aided clients.

Fees paid in legal aid matters may be a third, or even less, of a lawyer’s commercial rates. 89 per cent of survey respondents in NSW are concerned about having to perform unremunerated work and 62 per cent are concerned about the financial viability of their practice.

While private lawyers expressed concern about acting for clients with limited or inadequate funding, respondents overwhelmingly said they do the work required even if the grant is not sufficient to cover it.

As well as highlighting the remuneration for legal aid work, the census outlines other issues experienced by private lawyers. These include delays in obtaining grants, extensive travel to undertake legal aid cases which is not fully compensated, a lack of access to social supports for clients, and feeling undervalued. Legal Aid NSW has made some important reforms over recent years in the administration of grants to private practitioners, but recognises more needs to be done. A new legal aid application system is currently under development (LA Apply) and will bring many improvements in efficiencies and through a user-friendly interface. Its development highlights our ongoing commitment to work with private practitioners to improve how we do business together.

Survey warns of exodus

It is not surprising, given the low rates of remuneration and the challenges in undertaking legal aid work, that many lawyers are weighing up whether they will continue to do this work. In NSW, 12 per cent of respondents intend to stop doing legal aid work in the next 12 months, and 20 per cent are not sure they will continue doing the work in that period. These results are a grim warning that must be heeded before it’s too late.

Following the release of the census, National Legal Aid (NLA) called on the Standing Committee of Attorneys General to commit to a review of Legal Aid Commission fees and grant structures and to identify options for increased funding. Legal Aid NSW continues to support NLA efforts to advocate for increased funding.

Fee increase for NSW private lawyers

The Legal Aid NSW board recently approved an increase in fees for Commonwealth family and civil law matters from 7 April 2025. The increase brings them up to the same level as state matters and Commonwealth criminal law matters. Legal Aid NSW made this decision in recognition of the urgent and pressing need to better remunerate panel lawyers, even though legal aid commissions did not receive additional Commonwealth funding for private lawyer fees in the new funding agreement known as the National Access to Justice Partnership.

Private practitioners are essential to the delivery of legal aid services to disadvantaged and vulnerable clients. The need to support their work has never been clearer; without them, Legal Aid NSW cannot fulfill its mandate to provide legal services to those most in need.

Monique Hitter is the CEO of Legal Aid NSW